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Justice Blackmun

dissenting

Edmonds v. Compagnie Generale Transatlantique

https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/

https://www.courtlistener.com/api/rest/v3/clusters/110136/

1978-148

The jury in this case found that the shipowner, the stevedore, and the longshoreman were each partially responsible *274 for the latter's (petitioner Stanley Edmonds) injury. A member of the ship's crew instructed Edmonds to remove a jack from the rear wheel of a large cargo container. As Edmonds went behind the container to remove the jack, another longshoreman backed a truck into the container, causing it to roll backwards and pin Edmonds against the bulkhead. The jury concluded that the shipowner, as the employer of the crewman, was 20% responsible for the accident; the stevedore, as the employer of the longshoreman driving the truck, was 70% responsible; and Edmonds himself was 10% responsible. The Court holds that the shipowner, who was 20% negligent, must pay 90% of Edmonds' damages. Edmonds, because of his comparative negligence, must absorb 10% of the damages himself. But the stevedore, who, the jury determined, was 70% at fault, will recoup its statutory compensation payments out of the damages payable to Edmonds, and thus will go scot-free.[1] The Court does not, and indeed could not, defend this result on grounds of reason or fairness. Today's ruling means that concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees. It also means that shipowners in effect will be held vicariously liable for the negligence of stevedores, and will have to pay damages far out of proportion to their degree of fault. Nor does the Court suggest that its holding is compelled by the language or legislative *275 history of § 5 (b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. C. § 905 (b). The Court appears to advance two justifications for its decision: first, that principles of comparative negligence did not apply under the traditional law of admiralty, and Congress intended to preclude judicial modification of that law when it passed the 1972 Amendments to the LHWCA; and second, that a rule of comparative negligence would be unfair to injured longshoremen. Since I find both purported justifications wholly inadequate to support the Court's decision, I respectfully dissent. I The Court begins with the proposition that, under the law maritime as it existed in 1972, the shipowner could not reduce its liability because of the comparative negligence of the stevedore: I am not entirely convinced. None of the decisions cited by the Court, ante, at 260 n. 7, stands for this proposition; the cases relied upon all concern the conceptually distinct problem—to which the Court has given varying answers—of whether there is a right of contribution among joint tortfeasors.[2] I am willing to assume, however, for purposes of argument, that the Court has correctly stated the "traditional" admiralty rule. The Court next states that Congress itself did not impose a rule of comparative negligence when it adopted § 905 (b) in 1972. Again, I am not altogether sure. As Chief Judge Haynsworth demonstrated in his opinion for the en banc court *276 below, there is some tension between the first and second sentences of § 905 (b).[3] These sentences are most easily reconciled if one assumes that Congress was thinking in terms of comparative negligence. The Court points out that there are other, less plausible, ways of reconciling the two sentences. Although I feel there is room for debate on this question, I am again willing to assume, for purposes of argument, that Congress did not impose a rule of comparative negligence in third-party suits under the LHWCA. I cannot agree, however, with the Court's third proposition: that Congress intended to prohibit this Court from fashioning a rule of comparative negligence in suits for damages by a longshoreman against the shipowner. It is well established that courts exercising jurisdiction in maritime affairs have broad powers of interstitial rulemaking. As the Court stated in United States v. Reliable Transfer Co., 421 U.S. 397, 409 (1975), "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and `Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald *277 v. United States Lines Co., 374 U.S. 16, 20." I find nothing in the language or legislative history of § 905 (b) that indicates Congress intended to reverse this presumption with respect to third-party actions under the LHWCA. The Court suggests that Congress, in enacting § 905 (b), "aligned the rights and liabilities of stevedores, shipowners, and longshoremen" on the specific assumption that the shipowner would not be allowed to reduce its liability because of the stevedore's comparative negligence. Ante, at 272. The legislative history belies this notion. Congress had two narrow objectives in mind in enacting § 905 (b) in 1972: to overcome this Court's decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and its decision in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124 (1956). See S. Rep. No. 92-1125, pp. 8-11 (1972). These decisions had created a form of circuitous liability whereby the longshoreman, under Seas Shipping, sued the shipowner under a theory of unseaworthiness; the shipowner, under Ryan Stevedoring, obtained full indemnity from the stevedore; and the stevedore ended up paying actual damages rather than statutory compensation. Congress overruled the strict-liability theory of Seas Shipping to ensure that "[t]he vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." S. Rep. No. 92-1125, supra, at 11. It eliminated the Ryan Stevedoring action for indemnification because if "the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore . . . ." S. Rep. No. 92-1125, supra, at 11. These statements of legislative purpose are as consistent, or more consistent, with a system of comparative negligence, than with a congressional assumption that the shipowner would be fully liable for the concurrent negligence of the stevedore. *278 The legislative history indicates that, if anything, Congress intended to preserve the role of the federal courts in filling in the contours of § 905 (b). The House and Senate Reports state that the liability of a shipowner in an action brought by a longshoreman should be analogous to that which "would render a land-based third party in non-maritime pursuits liable under similar circumstances." S. Rep. No. 92-1125, supra, at 11. The Report emphasizes, however, that this does not mean state tort law is to govern third-party negligence suits against the vessel. "[T]he Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law. In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of `assumption of risk' in an action by an injured employee shall also be applicable." Id., at 12. In other words, Congress specifically reaffirmed the admiralty law tradition in the 1972 Amendments, and intended that this Court would continue to resolve "legal questions which may arise in actions brought under these provisions" in accordance with that tradition. In short, in this case, as in Reliable Transfer, 421 U. S., at 409, "[n]o statutory or judicial precept precludes a change in the rule [that the shipowner is fully liable for the concurrent negligence of the stevedore], and indeed a proportional fault rule would simply bring recovery [as between the stevedore *279 and shipowner] into line with the rule of admiralty law long since established [as between the longshoreman and the shipowner]." II I am also convinced that no injustice to injured longshoremen would result from a rule of comparative negligence. A rule of comparative negligence in no case would reduce the longshoreman's total award below his statutory workmen's compensation benefits.[4] The rule of comparative negligence would affect only the relative proportion of statutory benefits and damages in the longshoreman's total compensation package. In the present case, for example, a rule of comparative negligence would mean the longshoreman would receive 20% damages and 80% statutory benefits, as opposed to 90% damages and 10% statutory benefits. At first blush, it might appear that there is something unfair about reducing the total potential award of the longshoreman in this manner. But when the different purposes of the statutory compensation scheme and the third-party action for negligence are considered, it can be seen that this result is fully consistent with the policies of the statute. The LHWCA statutory compensation scheme, like other workmen's compensation plans, is based on a compromise. The longshoreman accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault. The third-party tort action, in contrast, embodies an element of risk. The longshoreman faces the prospect of an increased award, but also the possibility of receiving nothing if the shipowner is found not to have been negligent. *280 The problem of perceiving the equities arises because of the interaction of the compensation scheme and the tort scheme. If a longshoreman is injured while working on a vessel, and the stevedore is 100% at fault, no one considers it unjust that the longshoreman receives only statutory benefits. The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer's fault. Similarly, if a longshoreman is injured and the shipowner is 100% to blame, everyone agrees that it is fitting and proper for the shipowner to pay full damages. The Court, however, perceives "some inequity" in not allowing the longshoreman to obtain full damages when the shipowner has been determined to be only 20% negligent. Presumably, this same "inequity" would result if the longshoreman did not obtain full damages when the shipowner was 10% or 5% or even 1% negligent. This is not equity, however, but a windfall. Under the Court's rule, the longshoreman is guaranteed statutory compensation without regard to fault and is given a risk-free chance to obtain full damages if the shipowner is found negligent in even the slightest degree. A more evenhanded equity, in my view, would be for the longshoreman to recover damages for that portion of the injury for which the shipowner's negligence is responsible, and to recover the balance in statutory compensation, representing that portion of the injury for which the longshoreman is guaranteed an award regardless of fault.[5] III In sum, this case presents the relatively common situation where a statute is open to two interpretations, and the legislative history, although instructive as to the overriding purposes of Congress, provides no specific guidance as to which *281 interpretation Congress would have adopted if it had addressed the precise issue. Our duty, in such a case, is to adopt the interpretation most consonant with reason, equity, and the underlying purposes Congress sought to achieve. If we are wrong, Congress can, as it has in the past, step in and adopt some other solution. But the problem should not be resolved by complacently accepting an unfair and unjust result, on the assumption the choice between the two interpretations ideally should be made by Congress. Under that approach, the Court and the country at large may end up with nothing more than an unfair and unjust result.

The jury in this case found that the shipowner, the stevedore, and the longshoreman were each partially responsible *274 for the latter's (petitioner Stanley Edmonds) injury. A member of the ship's crew instructed Edmonds to remove a jack from the rear wheel of a large cargo container. As Edmonds went behind the container to remove the jack, another longshoreman backed a truck into the container, causing it to roll backwards and pin Edmonds against the bulkhead. The jury concluded that the shipowner, as the employer of the crewman, was % responsible for the accident; the stevedore, as the employer of the longshoreman driving the truck, was 70% responsible; and Edmonds himself was 10% responsible. The Court holds that the shipowner, who was % negligent, must pay 90% of Edmonds' damages. Edmonds, because of his comparative negligence, must absorb 10% of the damages himself. But the stevedore, who, the jury determined, was 70% at fault, will recoup its statutory compensation payments out of the damages payable to Edmonds, and thus will go scot-free.[1] The Court does not, and indeed could not, defend this result on grounds of reason or fairness. Today's ruling means that concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees. It also means that shipowners in effect will be held vicariously liable for the negligence of stevedores, and will have to pay damages far out of proportion to their degree of fault. Nor does the Court suggest that its holding is compelled by the language or legislative *275 history of 5 (b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. C. 905 (b). The Court appears to advance two justifications for its decision: first, that principles of comparative negligence did not apply under the traditional law of admiralty, and Congress intended to preclude judicial modification of that law when it passed the 1972 Amendments to the LHWCA; and second, that a rule of comparative negligence would be unfair to injured longshoremen. Since I find both purported justifications wholly inadequate to support the Court's decision, I respectfully dissent. I The Court begins with the proposition that, under the law maritime as it existed in 1972, the shipowner could not reduce its liability because of the comparative negligence of the stevedore: I am not entirely convinced. None of the decisions cited by the Court, ante, at 260 n. 7, stands for this proposition; the cases relied upon all concern the conceptually distinct problem—to which the Court has given varying answers—of whether there is a right of contribution among joint tortfeasors.[2] I am willing to assume, however, for purposes of argument, that the Court has correctly stated the "traditional" admiralty rule. The Court next states that Congress itself did not impose a rule of comparative negligence when it adopted 905 (b) in 1972. Again, I am not altogether sure. As Chief Judge Haynsworth demonstrated in his opinion for the en banc court *276 below, there is some tension between the first and second sentences of 905 (b).[3] These sentences are most easily reconciled if one assumes that Congress was thinking in terms of comparative negligence. The Court points out that there are other, less plausible, ways of reconciling the two sentences. Although I feel there is room for debate on this question, I am again willing to assume, for purposes of argument, that Congress did not impose a rule of comparative negligence in third-party suits under the LHWCA. I cannot agree, however, with the Court's third proposition: that Congress intended to prohibit this Court from fashioning a rule of comparative negligence in suits for damages by a longshoreman against the shipowner. It is well established that courts exercising jurisdiction in maritime affairs have broad powers of interstitial rulemaking. As the Court stated in United "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and `Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald" I find nothing in the language or legislative history of 905 (b) that indicates Congress intended to reverse this presumption with respect to third-party actions under the LHWCA. The Court suggests that Congress, in enacting 905 (b), "aligned the rights and liabilities of stevedores, shipowners, and longshoremen" on the specific assumption that the shipowner would not be allowed to reduce its liability because of the stevedore's comparative negligence. Ante, at 272. The legislative history belies this notion. Congress had two narrow objectives in mind in enacting 905 (b) in 1972: to overcome this Court's decision in Seas Shipping and its decision in Ryan Stevedoring See S. Rep. No. pp. 8-11 (1972). These decisions had created a form of circuitous liability whereby the longshoreman, under Seas Shipping, sued the shipowner under a theory of unseaworthiness; the shipowner, under Ryan Stevedoring, obtained full indemnity from the stevedore; and the stevedore ended up paying actual damages rather than statutory compensation. Congress overruled the strict-liability theory of Seas Shipping to ensure that "[t]he vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." S. Rep. No. It eliminated the Ryan Stevedoring action for indemnification because if "the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore" S. Rep. No. These statements of legislative purpose are as consistent, or more consistent, with a system of comparative negligence, than with a congressional assumption that the shipowner would be fully liable for the concurrent negligence of the stevedore. *278 The legislative history indicates that, if anything, Congress intended to preserve the role of the federal courts in filling in the contours of 905 (b). The House and Senate Reports state that the liability of a shipowner in an action brought by a longshoreman should be analogous to that which "would render a land-based third party in non-maritime pursuits liable under similar circumstances." S. Rep. No. The Report emphasizes, however, that this does not mean state tort law is to govern third-party negligence suits against the vessel. "[T]he Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law. In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of `assumption of risk' in an action by an injured employee shall also be applicable." In other words, Congress specifically reaffirmed the admiralty law tradition in the 1972 Amendments, and intended that this Court would continue to resolve "legal questions which may arise in actions brought under these provisions" in accordance with that tradition. In short, in this case, as in Reliable 421 U. S., at "[n]o statutory or judicial precept precludes a change in the rule [that the shipowner is fully liable for the concurrent negligence of the stevedore], and indeed a proportional fault rule would simply bring recovery [as between the stevedore *279 and shipowner] into line with the rule of admiralty law long since established [as between the longshoreman and the shipowner]." II I am also convinced that no injustice to injured longshoremen would result from a rule of comparative negligence. A rule of comparative negligence in no case would reduce the longshoreman's total award below his statutory workmen's compensation benefits.[4] The rule of comparative negligence would affect only the relative proportion of statutory benefits and damages in the longshoreman's total compensation package. In the present case, for example, a rule of comparative negligence would mean the longshoreman would receive % damages and 80% statutory benefits, as opposed to 90% damages and 10% statutory benefits. At first blush, it might appear that there is something unfair about reducing the total potential award of the longshoreman in this manner. But when the different purposes of the statutory compensation scheme and the third-party action for negligence are considered, it can be seen that this result is fully consistent with the policies of the statute. The LHWCA statutory compensation scheme, like other workmen's compensation plans, is based on a compromise. The longshoreman accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault. The third-party tort action, in contrast, embodies an element of risk. The longshoreman faces the prospect of an increased award, but also the possibility of receiving nothing if the shipowner is found not to have been negligent. *280 The problem of perceiving the equities arises because of the interaction of the compensation scheme and the tort scheme. If a longshoreman is injured while working on a vessel, and the stevedore is 100% at fault, no one considers it unjust that the longshoreman receives only statutory benefits. The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer's fault. Similarly, if a longshoreman is injured and the shipowner is 100% to blame, everyone agrees that it is fitting and proper for the shipowner to pay full damages. The Court, however, perceives "some inequity" in not allowing the longshoreman to obtain full damages when the shipowner has been determined to be only % negligent. Presumably, this same "inequity" would result if the longshoreman did not obtain full damages when the shipowner was 10% or 5% or even 1% negligent. This is not equity, however, but a windfall. Under the Court's rule, the longshoreman is guaranteed statutory compensation without regard to fault and is given a risk-free chance to obtain full damages if the shipowner is found negligent in even the slightest degree. A more evenhanded equity, in my view, would be for the longshoreman to recover damages for that portion of the injury for which the shipowner's negligence is responsible, and to recover the balance in statutory compensation, representing that portion of the injury for which the longshoreman is guaranteed an award regardless of fault.[5] III In sum, this case presents the relatively common situation where a statute is open to two interpretations, and the legislative history, although instructive as to the overriding purposes of Congress, provides no specific guidance as to which *281 interpretation Congress would have adopted if it had addressed the precise issue. Our duty, in such a case, is to adopt the interpretation most consonant with reason, equity, and the underlying purposes Congress sought to achieve. If we are wrong, Congress can, as it has in the past, step in and adopt some other solution. But the problem should not be resolved by complacently accepting an unfair and unjust result, on the assumption the choice between the two interpretations ideally should be made by Congress. Under that approach, the Court and the country at large may end up with nothing more than an unfair and unjust result.

per_curiam

per_curiam

Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris

https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/

https://www.courtlistener.com/api/rest/v3/clusters/111021/

1982-164

Petitioners in this case administer a deferred compensation plan for employees of the State of Arizona. The respondent class consists of all female employees who are enrolled in the plan or will enroll in the plan in the future. Certiorari was granted to decide whether Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et seq. (1976 ed. and Supp. V), prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay lower monthly retirement benefits to a woman than to a man who has made the same contributions; and whether, if so, the relief awarded by the District Court was proper. 459 U.S. 904 (1982). The Court holds that this practice does constitute discrimination on the basis of sex in violation of Title VII, and that all retirement benefits derived from contributions made after the decision today must be calculated *1075 without regard to the sex of the beneficiary. This position is expressed in Parts I, II, and III of the opinion of JUSTICE MARSHALL, post, at this page and 1076-1091, which are joined by JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE STEVENS, and JUSTICE O'CONNOR. The Court further holds that benefits derived from contributions made prior to this decision may be calculated as provided by the existing terms of the Arizona plan. This position is expressed in Part III of the opinion of JUSTICE POWELL, post, at 1105, which is joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE O'CONNOR. Accordingly, 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. The Clerk is directed to issue the judgment August 1, 1983. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE STEVENS join, and with whom JUSTICE O'CONNOR joins as to Parts I, II, and III, concurring in the judgment in part. In Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), this Court held that Title VII of the Civil Rights Act of 1964 prohibits an employer from requiring women to make larger contributions in order to obtain the same monthly pension benefits as men. The question presented by this case is whether Title VII also prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay a woman lower monthly benefits than a man who has made the same contributions. I A Since 1974 the State of Arizona has offered its employees the opportunity to enroll in a deferred compensation plan administered *1076 by the Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans (Governing Committee). Ariz. Rev. Stat. Ann. § 38-871 et seq. (1974 and Supp. 1982-1983); Ariz. Regs. 2-9-01 et seq. (1975). Employees who participate in the plan may thereby postpone the receipt of a portion of their wages until retirement. By doing so, they postpone paying federal income tax on the amounts deferred until after retirement, when they receive those amounts and any earnings thereon.[1] After inviting private companies to submit bids outlining the investment opportunities that they were willing to offer state employees, the State selected several companies to participate in its deferred compensation plan. Many of the companies selected offer three basic retirement options: (1) a single lump-sum payment upon retirement, (2) periodic payments of a fixed sum for a fixed period of time, and (3) monthly annuity payments for the remainder of the employee's life. When an employee decides to take part in the deferred compensation plan, he must designate the company in which he wishes to invest his deferred wages. Employees must choose one of the companies selected by the State to participate in the plan; they are not free to invest their deferred compensation in any other way. At the time an employee enrolls in the plan, he may also select one of the pay-out options offered by the company that he has chosen, but when he reaches retirement age he is free to switch to one of the company's other options. If at retirement the employee decides to receive a lump-sum payment, he may also purchase any of the options then being offered by the other companies participating in the plan. Many employees find an annuity contract to be the most attractive option, since receipt of a lump sum upon retirement requires payment of taxes on *1077 the entire sum in one year, and the choice of a fixed sum for a fixed period requires an employee to speculate as to how long he will live. Once an employee chooses the company in which he wishes to invest and decides the amount of compensation to be deferred each month, the State is responsible for withholding the appropriate sums from the employee's wages and channelling those sums to the company designated by the employee. The State bears the cost of making the necessary payroll deductions and of giving employees time off to attend group meetings to learn about the plan, but it does not contribute any moneys to supplement the employees' deferred wages. For an employee who elects to receive a monthly annuity following retirement, the amount of the employee's monthly benefits depends upon the amount of compensation that the employee deferred (and any earnings thereon), the employee's age at retirement, and the employee's sex. All of the companies selected by the State to participate in the plan use sex-based mortality tables to calculate monthly retirement benefits. App. 12. Under these tables a man receives larger monthly payments than a woman who deferred the same amount of compensation and retired at the same age, because the tables classify annuitants on the basis of sex and women on average live longer than men.[2] Sex is the only factor that the tables use to classify individuals of the same age; the tables do not incorporate other factors correlating with longevity such as smoking habits, alcohol consumption, weight, medical history, or family history. Id., at 13. *1078 As of August 18, 1978, 1,675 of the State's approximately 35,000 employees were participating in the deferred compensation plan. Of these 1,675 participating employees, 681 were women, and 572 women had elected some form of future annuity option. As of the same date, 10 women participating in the plan had retired, and 4 of those 10 had chosen a lifetime annuity. Id., at 6. B On May 3, 1975, respondent Nathalie Norris, an employee in the Arizona Department of Economic Security, elected to participate in the plan. She requested that her deferred compensation be invested in the Lincoln National Life Insurance Co.'s fixed annuity contract. Shortly thereafter Arizona approved respondent's request and began withholding $199.50 from her salary each month. On April 25, 1978, after exhausting administrative remedies, respondent brought suit in the United States District Court for the District of Arizona against the State, the Governing Committee, and several individual members of the Committee. Respondent alleged that the defendants were violating § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S. C. § 2000e-2(a), by administering an annuity plan that discriminates on the basis of sex. Respondent requested that the District Court certify a class under Federal Rule of Civil Procedure 23(b)(2) consisting of all female employees of the State of Arizona "who are enrolled or will in the future enroll in the State Deferred Compensation Plan." Complaint ¶ V. On March 12, 1980, the District Court certified a class action and granted summary judgment for the plaintiff class,[3] holding that the State's plan violates Title VII.[4] 486 F. *1079 Supp. 645. The court directed petitioners to cease using sex-based actuarial tables and to pay retired female employees benefits equal to those paid to similarly situated men.[5] The United States Court of Appeals for the Ninth Circuit affirmed, with one judge dissenting. 671 F.2d 330 (1982). We granted certiorari to decide whether the Arizona plan violates Title VII and whether, if so, the relief ordered by the District Court was proper. 459 U.S. 904 (1982). II We consider first whether petitioners would have violated Title VII if they had run the entire deferred compensation plan themselves, without the participation of any insurance companies. Title VII makes it an unlawful employment practice "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S. C. § 2000e-2(a)(1). There is no question that the opportunity to participate in a deferred compensation plan constitutes a "conditio[n] or privileg[e] of employment,"[6] and that retirement benefits constitute a form of "compensation."[7] The issue we must decide is whether it is discrimination "because of . . . sex" to pay a retired woman lower monthly benefits than a man who deferred the same amount of compensation. *1080 In Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), we held that an employer had violated Title VII by requiring its female employees to make larger contributions to a pension fund than male employees in order to obtain the same monthly benefits upon retirement. Noting that Title VII's "focus on the individual is unambiguous," id., at 708, we emphasized that the statute prohibits an employer from treating some employees less favorably than others because of their race, religion, sex, or national origin. Id., at 708-709. While women as a class live longer than men, id., at 704, we rejected the argument that the exaction of greater contributions from women was based on a "factor other than sex" — i. e., longevity — and was therefore permissible under the Equal Pay Act:[8] *1081 "[A]ny individual's life expectancy is based on a number of factors, of which sex is only one. . . . [O]ne cannot `say that an actuarial distinction based entirely on sex is "based on any other factor than sex." Sex is exactly what it is based on.' " Id., at 712-713, quoting Manhart v. Los Angeles Dept. of Water & Power, 553 F.2d 581, 588 (CA9 1976), and the Equal Pay Act. We concluded that a plan requiring women to make greater contributions than men discriminates "because of . . . sex" for the simple reason that it treats each woman " `in a manner which but for [her] sex would [have been] different.' " 435 U.S., at 711, quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971). We have no hesitation in holding, as have all but one of the lower courts that have considered the question,[9] that the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement plan than at the pay-in stage.[10] We reject petitioners' contention that the *1082 Arizona plan does not discriminate on the basis of sex because a woman and a man who defer the same amount of compensation will obtain upon retirement annuity policies having approximately the same present actuarial value.[11] Arizona has simply offered its employees a choice among different levels of annuity benefits, any one of which, if offered alone, would be equivalent to the plan at issue in Manhart, where the employer determined both the monthly contributions employees were required to make and the level of benefits that they were paid. If a woman participating in the Arizona plan wishes to obtain monthly benefits equal to those obtained by a man, she must make greater monthly contributions than he, just as the female employees in Manhart had to make greater contributions to obtain equal benefits. For any particular level of benefits that a woman might wish to receive, she will have to make greater monthly contributions to obtain that level of benefits than a man would have to make. The fact that Arizona has offered a range of discriminatory benefit levels, rather than only one such level, obviously provides no basis whatsoever for distinguishing Manhart. *1083 In asserting that the Arizona plan is nondiscriminatory because a man and a woman who have made equal contributions will obtain annuity policies of roughly equal present actuarial value, petitioners incorrectly assume that Title VII permits an employer to classify employees on the basis of sex in predicting their longevity. Otherwise there would be no basis for postulating that a woman's annuity policy has the same present actuarial value as the policy of a similarly situated man even though her policy provides lower monthly benefits.[12] This underlying assumption — that sex may properly be used to predict longevity — is flatly inconsistent with the basic teaching of Manhart: that Title VII requires employers to treat their employees as individuals, not "as simply components of a racial, religious, sexual, or national class." 435 U.S., at 708. Manhart squarely rejected the notion that, because women as a class live longer than men, an employer may adopt a retirement plan that treats every individual woman less favorably than every individual man. Id., at 716-717. As we observed in Manhart, "[a]ctuarial studies could unquestionably identify differences in life expectancy based on race or national origin, as well as sex." Id., at 709 (footnote omitted). If petitioners' interpretation of the statute were correct, such studies could be used as a justification for paying employees of one race lower monthly benefits than employees of another race. We continue to believe that "a statute that was designed to make race irrelevant in the employment market," ibid., citing Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971), could not reasonably be construed to permit such a racial classification. And if it would be unlawful to use race-based actuarial tables, it must also be unlawful to use sex-based tables, for under Title VII a distinction *1084 based on sex stands on the same footing as a distinction based on race unless it falls within one of a few narrow exceptions that are plainly inapplicable here.[13] What we said in Manhart bears repeating: "Congress has decided that classifications based on sex, like those based on national origin or race, are unlawful." 435 U.S., at 709. The use of sex-segregated actuarial tables to calculate retirement benefits violates Title VII whether or not the tables reflect an accurate prediction of the longevity of women as a class, for under the statute "[e]ven a true generalization about [a] class" cannot justify class-based treatment.[14]Id., *1085 at 708. An individual woman may not be paid lower monthly benefits simply because women as a class live longer than men.[15] Cf. Connecticut v. Teal, 457 U.S. 440 (1982) (an *1086 individual may object that an employment test used in making promotion decisions has a discriminatory impact even if the class of which he is a member has not been disproportionately denied promotion). We conclude that it is just as much discrimination "because of . . . sex" to pay a woman lower benefits when she has made the same contributions as a man as it is to make her pay larger contributions to obtain the same benefits. III Since petitioners plainly would have violated Title VII if they had run the entire deferred compensation plan themselves, the only remaining question as to liability is whether their conduct is beyond the reach of the statute because it is the companies chosen by petitioners to participate in the plan that calculate and pay the retirement benefits. Title VII "primarily govern[s] relations between employees and their employer, not between employees and third parties."[16]Manhart, 435 U. S., at 718, n. 33. Recognizing this limitation on the reach of the statute, we noted in Manhart that "[n]othing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market." Id., at 717-718 (footnote omitted). *1087 Relying on this caveat, petitioners contend that they have not violated Title VII because the life annuities offered by the companies participating in the Arizona plan reflect what is available in the open market. Petitioners cite a statement in the stipulation of facts entered into in the District Court that "[a]ll tables presently in use provide a larger sum to a male than to a female of equal age, account value and any guaranteed payment period." App. 10.[17] *1088 It is no defense that all annuities immediately available in the open market may have been based on sex-segregated actuarial tables. In context it is reasonably clear that the stipulation on which petitioners rely means only that all the tables used by the companies taking part in the Arizona plan are based on sex,[18] but our conclusion does not depend upon whether petitioners' construction of the stipulation is accepted or rejected. It is irrelevant whether any other insurers offered annuities on a sex-neutral basis, since the State did not simply set aside retirement contributions and let employees purchase annuities on the open market. On the contrary, the State provided the opportunity to obtain an annuity *1089 as part of its own deferred compensation plan. It invited insurance companies to submit bids outlining the terms on which they would supply retirement benefits[19] and selected the companies that were permitted to participate in the plan. Once the State selected these companies, it entered into contracts with them governing the terms on which benefits were to be provided to employees. Employees enrolling in the plan could obtain retirement benefits only from one of those companies, and no employee could be contacted by a company except as permitted by the State. Ariz. Regs. 2-9-06.A, 2-9-20.A (1975). Under these circumstances there can be no serious question that petitioners are legally responsible for the discriminatory terms on which annuities are offered by the companies chosen to participate in the plan. Having created a plan whereby employees can obtain the advantages of using deferred compensation to purchase an annuity only if they invest in one of the companies specifically selected by the State, the State cannot disclaim responsibility for the discriminatory features of the insurers' options.[20] Since employers are ultimately responsible for the "compensation, terms, conditions, [and] privileges of employment" provided to employees, an employer that adopts a fringe-benefit scheme that discriminates among its employees on the basis of race, religion, sex, or national origin violates Title VII regardless of whether third parties are also involved in the discrimination.[21] In *1090 this case the State of Arizona was itself a party to contracts concerning the annuities to be offered by the insurance companies, and it is well established that both parties to a discriminatory contract are liable for any discriminatory provisions the contract contains, regardless of which party initially suggested inclusion of the discriminatory provisions.[22] It would be inconsistent with the broad remedial purposes of Title VII[23] to hold that an employer who adopts a discriminatory *1091 fringe-benefit plan can avoid liability on the ground that he could not find a third party willing to treat his employees on a nondiscriminatory basis.[24] An employer who confronts such a situation must either supply the fringe benefit himself, without the assistance of any third party, or not provide it at all. IV We turn finally to the relief awarded by the District Court. The court enjoined petitioners to assure that future annuity payments to retired female employees shall be equal to the payments received by similarly situated male employees.[25] In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), we emphasized that one of the main purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id., at 418. We recognized that there is a strong presumption that " `[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.' " Id., at 418-419, quoting Wicker v. Hoppock, 6 Wall. 94, 99 (1867). Once a violation of the statute has been found, retroactive relief "should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through *1092 past discrimination." 422 U.S., at 421 (footnote omitted). Applying this standard, we held that the mere absence of bad faith on the part of the employer is not a sufficient reason for denying such relief. Id., at 422-423. Although this Court noted in Manhart that "[t]he Albemarle presumption in favor of retroactive liability can seldom be overcome," 435 U.S., at 719, the Court concluded that under the circumstances the District Court had abused its discretion in requiring the employer to refund to female employees all contributions they were required to make in excess of the contributions demanded of men. The Court explained that "conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to us, may well have assumed that a program like the Department's was entirely lawful," since "[t]he courts had been silent on the question, and the administrative agencies had conflicting views." Id., at 720 (footnote omitted). The Court also noted that retroactive relief based on "[d]rastic changes in the legal rules governing pension and insurance funds" can "jeopardiz[e] the insurer's solvency and, ultimately, the insureds' benefits," id., at 721, and that the burden of such relief can fall on innocent third parties. Id., at 722-723. While the relief ordered here affects only benefit payments made after the date of the District Court's judgment, it does not follow that the relief is wholly prospective in nature, as an injunction concerning future conduct ordinarily is, and should therefore be routinely awarded once liability is established. When a court directs a change in benefits based on contributions made before the court's order, the court is awarding relief that is fundamentally retroactive in nature. This is true because retirement benefits under a plan such as that at issue here represent a return on contributions which were made during the employee's working years and which were intended to fund the benefits without any additional contributions from any source after retirement. *1093 A recognition that the relief awarded by the District Court is partly retroactive is only the beginning of the inquiry. Absent special circumstances a victim of a Title VII violation is entitled to whatever retroactive relief is necessary to undo any damage resulting from the violation. See Albemarle Paper Co. v. Moody, supra, at 418-419, 421. As to any disparity in benefits that is attributable to contributions made after our decision in Manhart, there are no special circumstances justifying the denial of retroactive relief. Our ruling today was clearly foreshadowed by Manhart. That decision should have put petitioners on notice that a man and a woman who make the same contributions to a retirement plan must be paid the same monthly benefits.[26] To the extent that any disparity in benefits coming due after the date of the District Court's judgment is attributable to contributions made after Manhart, there is therefore no unfairness in requiring petitioners to pay retired female employees whatever sum is necessary each month to bring them up to the benefit level that they would have enjoyed had their post-Manhart contributions been treated in the same way as those of similarly situated male employees. To the extent, however, that the disparity in benefits that the District Court required petitioners to eliminate is attributable *1094 to contributions made before Manhart, the court gave insufficient attention to this Court's recognition in Manhart that until that decision the use of sex-based tables might reasonably have been assumed to be lawful. Insofar as this portion of the disparity is concerned, the District Court should have inquired into the circumstances in which petitioners, after Manhart, could have applied sex-neutral tables to the pre-Manhart contributions of a female employee and a similarly situated male employee without violating any contractual rights that the latter might have had on the basis of his pre-Manhart contributions. If, in the case of a particular female employee and a similarly situated male employee, petitioners could have applied sex-neutral tables to pre-Manhart contributions without violating any contractual right of the male employee, they should have done so in order to prevent further discrimination in the payment of retirement benefits in the wake of this Court's ruling in Manhart.[27] Since a female employee in this situation should have had sex-neutral tables applied to her pre-Manhart contributions, it is only fair that petitioners be required to supplement any benefits coming due after the District Court's judgment by whatever sum is necessary to compensate her for their failure to adopt sex-neutral tables. If, on the other hand, sex-neutral tables could not have been applied to the pre-Manhart contributions of a particular female employee and any similarly situated male employee without violating the male employee's contractual rights, it would be inequitable to award such relief. To do so would be *1095 to require petitioners to compensate the female employee for a disparity attributable to pre-Manhart conduct even though such conduct might reasonably have been assumed to be lawful and petitioners could not have done anything after Manhart to eliminate that disparity short of expending state funds. With respect to any female employee determined to fall in this category, petitioners need only ensure that her monthly benefits are no lower than they would have been had her post-Manhart contributions been treated in the same way as those of a similarly situated male employee. The record does not indicate whether some or all of the male participants in the plan who had not retired at the time Manhart was decided[28] had any contractual right to a particular level of benefits that would have been impaired by the application of sex-neutral tables to their pre-Manhart contributions. The District Court should address this question on remand. JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE REHNQUIST join, dissenting in part and concurring in part, and with whom JUSTICE O'CONNOR joins as to Part III. The Court today holds that an employer may not offer its employees life annuities from a private insurance company that uses actuarially sound, sex-based mortality tables. This holding will have a far-reaching effect on the operation of insurance and pension plans. Employers may be forced to discontinue offering life annuities, or potentially disruptive changes may be required in long-established methods of calculating insurance and pensions.[1] Either course will work a *1096 major change in the way the cost of insurance is determined — to the probable detriment of all employees. This is contrary to our explicit recognition in Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 717 (1978), that Title VII "was [not] intended to revolutionize the insurance and pension industries." I The State of Arizona provides its employees with a voluntary pension plan that allows them to defer receipt of a portion of their compensation until retirement. If an employee chooses to participate, an amount designated by the employee is withheld from each paycheck and invested by the State on the employee's behalf. When an employee retires, he or she may receive the amount that has accrued in one of three ways. The employee may withdraw the total amount accrued, arrange for periodic payments of a fixed sum for a fixed time, or use the accrued amount to purchase a life annuity. There is no contention that the State's plan discriminates between men and women when an employee contributes to the fund. The plan is voluntary and each employee may contribute as much as he or she chooses. Nor does anyone contend that either of the first two methods of repaying the accrued amount at retirement is discriminatory. Thus, if Arizona had adopted the same contribution plan but provided only the first two repayment options, there would be no dispute that its plan complied with Title VII of the Civil Rights *1097 Act of 1964, as amended, 42 U.S. C. § 2000e et seq. (1976 ed. and Supp. V). The first two options, however, have disadvantages. If an employee chooses to take a lump-sum payment, the tax liability will be substantial.[2] The second option ameliorates the tax problem by spreading the receipt of the accrued amount over a fixed period of time. This option, however, does not guard against the possibility that the finite number of payments selected by the employee will fail to provide income for the remainder of his or her life. The third option — the purchase of a life annuity — resolves both of these problems. It reduces an employee's tax liability by spreading the payments out over time, and it guarantees that the employee will receive a stream of payments for life. State law prevents Arizona from accepting the financial uncertainty of funding life annuities. Ariz. Rev. Stat. Ann. § 38-871(C)(1) (Supp. 1982-1983). But to achieve tax benefits under federal law, the life annuity must be purchased from a company designated by the retirement plan. Rev. Rul. 72-25, 1972-1 Cum. Bull. 127; Rev. Rul. 68-99, 1968-1 Cum. Bull 193. Accordingly, Arizona contracts with private insurance companies to make life annuities available to its employees. The companies that underwrite the life annuities, as do the vast majority of private insurance companies in the United States, use sex-based mortality tables. Thus, the only effect of Arizona's third option is to allow its employees to purchase at a tax saving the same annuities they otherwise would purchase on the open market. The Court holds that Arizona's voluntary plan violates Title VII. In the majority's view, Title VII requires an employer to follow one of three courses. An employer must provide unisex annuities itself, contract with insurance companies to provide such annuities, or provide no annuities to its employees. Ante, at 1091 (MARSHALL, J., concurring in judgment in part). The first option is largely illusory. Most *1098 employers do not have either the financial resources or administrative ability to underwrite annuities. Or, as in this case, state law may prevent an employer from providing annuities. If unisex annuities are available, an employer may contract with private insurance companies to provide them. It is stipulated, however, that the insurance companies with which Arizona contracts do not provide unisex annuities, nor do insurance companies generally underwrite them. The insurance industry either is prevented by state law from doing so[3] or it views unisex mortality tables as actuarially unsound. An employer, of course, may choose the third option. It simply may decline to offer its employees the right to purchase annuities at a substantial tax saving. It is difficult to see the virtue in such a compelled choice. II As indicated above, the consequences of the Court's holding are unlikely to be beneficial. If the cost to employers of offering unisex annuities is prohibitive or if insurance carriers choose not to write such annuities, employees will be denied the opportunity to purchase life annuities — concededly the most advantageous pension plan — at lower cost.[4] If, alternatively, insurance carriers and employers choose to offer these annuities, the heavy cost burden of equalizing benefits probably will be passed on to current employees. There is *1099 no evidence that Congress intended Title VII to work such a change. Nor does Manhart support such a sweeping reading of this statute. That case expressly recognized the limited reach of its holding — a limitation grounded in the legislative history of Title VII and the inapplicability of Title VII's policies to the insurance industry. A We were careful in Manhart to make clear that the question before us was narrow. We stated: "All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund." 435 U.S., at 717 (emphasis added). And our holding was limited expressly to the precise issue before us. We stated that "[a]lthough we conclude that the Department's practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries." Ibid. The Court in Manhart had good reason for recognizing the narrow reach of Title VII in the particular area of the insurance industry. Congress has chosen to leave the primary responsibility for regulating the insurance industry to the respective States. See McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S. C. § 1011 et seq.[5] This Act reflects the *1100 long-held view that the "continued regulation . . . by the several States of the business of insurance is in the public interest." 15 U.S. C. § 1011; see SEC v. National Securities, Inc., 393 U.S. 453, 458-459 (1969). Given the consistent policy of entrusting insurance regulation to the States, the majority is not justified in assuming that Congress intended in 1964 to require the industry to change longstanding actuarial methods, approved over decades by state insurance commissions.[6] *1101 Nothing in the language of Title VII supports this pre-emption of state jurisdiction. Nor has the majority identified any evidence in the legislative history that Congress considered *1102 the widespread use of sex-based mortality tables to be discriminatory or that it intended to modify its previous grant by the McCarran-Ferguson Act of exclusive jurisdiction to the States to regulate the terms of protection offered by insurance companies. Rather, the legislative history indicates precisely the opposite. The only reference to this issue occurs in an explanation of the Act by Senator Humphrey during the debates on the Senate floor. He stated that it was "unmistakably clear" that Title VII did not prohibit different treatment of men and women under industrial benefit plans.[7] See 110 Cong. Rec. 13663-13664 (1964). As we recognized in Manhart, "[alt]hough he did not address differences in employee contributions based on sex, Senator Humphrey apparently assumed that the 1964 Act would have little, if any, impact on existing pension plans." 435 U.S., at 714. This statement *1103 was not sufficient, as Manhart held, to preclude the application of Title VII to an employer-operated plan. See ibid. But Senator Humphrey's explanation provides strong support for Manhart's recognition that Congress intended Title VII to have only that indirect effect on the private insurance industry. B As neither the language of the statute nor the legislative history supports its holding, the majority is compelled to rely on its perception of the policy expressed in Title VII. The policy, of course, is broadly to proscribe discrimination in employment practices. But the statute itself focuses specifically on the individual and "precludes treatment of individuals as simply components of a racial, religious, sexual, or national class." Id., at 708. This specific focus has little relevance to the business of insurance. See id., at 724 (BLACKMUN, J., concurring in part and concurring in judgment). Insurance and life annuities exist because it is impossible to measure accurately how long any one individual will live. Insurance companies cannot make individual determinations of life expectancy; they must consider instead the life expectancy of identifiable groups. Given a sufficiently large group of people, an insurance company can predict with considerable reliability the rate and frequency of deaths within the group based on the past mortality experience of similar groups. Title VII's concern for the effect of employment practices on the individual thus is simply inapplicable to the actuarial predictions that must be made in writing insurance and annuities. C The accuracy with which an insurance company predicts the rate of mortality depends on its ability to identify groups with similar mortality rates. The writing of annuities thus requires that an insurance company group individuals according to attributes that have a significant correlation with mortality. The most accurate classification system would be to *1104 identify all attributes that have some verifiable correlation with mortality and divide people into groups accordingly, but the administrative cost of such an undertaking would be prohibitive. Instead of identifying all relevant attributes, most insurance companies classify individuals according to criteria that provide both an accurate and efficient measure of longevity, including a person's age and sex. These particular criteria are readily identifiable, stable, and easily verifiable. See Benston, The Economics of Gender Discrimination in Employee Fringe Benefits: Manhart Revisited, 49 U. Chi. L. Rev. 489, 499-501 (1982). It is this practice — the use of a sex-based group classification — that the majority ultimately condemns. See ante, at 1083-1086 (MARSHALL, J., concurring in judgment in part). The policies underlying Title VII, rather than supporting the majority's decision, strongly suggest — at least for me — the opposite conclusion. This remedial statute was enacted to eradicate the types of discrimination in employment that then were pervasive in our society. The entire thrust of Title VII is directed against discrimination — disparate treatment on the basis of race or sex that intentionally or arbitrarily affects an individual. But as JUSTICE BLACKMUN has stated, life expectancy is a "nonstigmatizing factor that demonstrably differentiates females from males and that is not measurable on an individual basis. . . . [T]here is nothing arbitrary, irrational, or `discriminatory' about recognizing the objective and accepted . . . disparity in female-male life expectancies in computing rates for retirement plans." Manhart, 435 U. S., at 724 (concurring in part and concurring in judgment). Explicit sexual classifications, to be sure, require close examination, but they are not automatically invalid.[8] Sex-based mortality tables reflect objective actuarial experience. Because their use does not entail discrimination in any *1105 normal understanding of that term,[9] a court should hesitate to invalidate this long-approved practice on the basis of its own policy judgment. Congress may choose to forbid the use of any sexual classifications in insurance, but nothing suggests that it intended to do so in Title VII. And certainly the policy underlying Title VII provides no warrant for extending the reach of the statute beyond Congress' intent. III The District Court held that Arizona's voluntary pension plan violates Title VII and ordered that future annuity payments to female retirees be made equal to payments received by similarly situated men.[10] 486 F. Supp. 645 (Ariz. 1980). The Court of Appeals for the Ninth Circuit affirmed. 671 F.2d 330 (1982). The Court today affirms the Court of Appeals' judgment insofar as it holds that Arizona's voluntary pension plan violates Title VII. But this finding of a statutory violation provides no basis for approving the retroactive relief awarded by the District Court. To approve this award would be both unprecedented and manifestly unjust. We recognized in Manhart that retroactive relief is normally appropriate in the typical Title VII case, but concluded that the District Court had abused its discretion in awarding such relief. 435 U.S., at 719. As we noted, the employer in Manhart may well have assumed that its pension program was lawful. Id., at 720. More importantly, a retroactive *1106 remedy would have had a potentially disruptive impact on the operation of the employer's pension plan. The business of underwriting insurance and life annuities requires careful approximation of risk. Id., at 721. Reserves normally are sufficient to cover only the cost of funding and administering the plan. Should an unforeseen contingency occur, such as a drastic change in the legal rules governing pension and insurance funds, both the insurer's solvency and the insured's benefits could be jeopardized. Ibid. This case presents no different considerations. Manhart did put all employer-operated pension funds on notice that they could not "requir[e] that men and women make unequal contributions to [the] fund," id., at 717, but it expressly confirmed that an employer could set aside equal contributions and let each retiree purchase whatever benefit his or her contributions could command on the "open market," id., at 718. Given this explicit limitation, an employer reasonably could have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market. As in Manhart, holding employers liable retroactively would have devastating results. The holding applies to all employer-sponsored pension plans, and the cost of complying with the District Court's award of retroactive relief would range from $817 to $1,260 million annually for the next 15 to 30 years.[11] Department of Labor Cost Study 32. In this case, the cost would fall on the State of Arizona. Presumably other state and local governments also would be affected directly by today's decision. Imposing such unanticipated *1107 financial burdens would come at a time when many States and local governments are struggling to meet substantial fiscal deficits. Income, excise, and property taxes are being increased. There is no justification for this Court, particularly in view of the question left open in Manhart, to impose this magnitude of burden retroactively on the public. Accordingly, liability should be prospective only.[

Petitioners in this case administer a deferred compensation plan for employees of the State of Arizona. The respondent class consists of all female employees who are enrolled in the plan or will enroll in the plan in the future. Certiorari was granted to decide whether Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. ( ed. and Supp. V), prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay lower monthly retirement benefits to a woman than to a man who has made the same contributions; and whether, if so, the relief awarded by the District Court was proper. The Court holds that this practice does constitute discrimination on the basis of sex in violation of Title VII, and that all retirement benefits derived from contributions made after the decision today must be calculated *1075 without regard to the sex of the beneficiary. This position is expressed in Parts I, II, and III of the opinion of JUSTICE MARSHALL, post, at this page and 1076-1091, which are joined by JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE STEVENS, and JUSTICE O'CONNOR. The Court further holds that benefits derived from contributions made prior to this decision may be calculated as provided by the existing terms of the Arizona plan. This position is expressed in Part III of the opinion of JUSTICE POWELL, post, at 1105, which is joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE O'CONNOR. Accordingly, 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. The Clerk is directed to issue the judgment August 1, 1983. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE STEVENS join, and with whom JUSTICE O'CONNOR joins as to Parts I, II, and III, concurring in the judgment in part. In Los Angeles Dept. of Water & this Court held that Title VII of the Civil Rights Act of 1964 prohibits an employer from requiring women to make larger contributions in order to obtain the same monthly pension benefits as men. The question presented by this case is whether Title VII also prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay a woman lower monthly benefits than a man who has made the same contributions. I A Since 1974 the State of Arizona has offered its employees the opportunity to enroll in a deferred compensation plan administered *1076 by the Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans (Governing Committee). Ariz. Rev. Stat. Ann. 38-871 et seq. ; Ariz. Regs. 2-9-01 et seq. Employees who participate in the plan may thereby postpone the receipt of a portion of their wages until retirement. By doing so, they postpone paying federal income tax on the amounts deferred until after retirement, when they receive those amounts and any earnings thereon.[1] After inviting private companies to submit bids outlining the investment opportunities that they were willing to offer state employees, the State selected several companies to participate in its deferred compensation plan. Many of the companies selected offer three basic retirement options: (1) a single lump-sum payment upon retirement, (2) periodic payments of a fixed sum for a fixed period of time, and (3) monthly annuity payments for the remainder of the employee's life. When an employee decides to take part in the deferred compensation plan, he must designate the company in which he wishes to invest his deferred wages. Employees must choose one of the companies selected by the State to participate in the plan; they are not free to invest their deferred compensation in any other way. At the time an employee enrolls in the plan, he may also select one of the pay-out options offered by the company that he has chosen, but when he reaches retirement age he is free to switch to one of the company's other options. If at retirement the employee decides to receive a lump-sum payment, he may also purchase any of the options then being offered by the other companies participating in the plan. Many employees find an annuity contract to be the most attractive option, since receipt of a lump sum upon retirement requires payment of taxes on *1077 the entire sum in one year, and the choice of a fixed sum for a fixed period requires an employee to speculate as to how long he will live. Once an employee chooses the company in which he wishes to invest and decides the amount of compensation to be deferred each month, the State is responsible for withholding the appropriate sums from the employee's wages and channelling those sums to the company designated by the employee. The State bears the cost of making the necessary payroll deductions and of giving employees time off to attend group meetings to learn about the plan, but it does not contribute any moneys to supplement the employees' deferred wages. For an employee who elects to receive a monthly annuity following retirement, the amount of the employee's monthly benefits depends upon the amount of compensation that the employee deferred (and any earnings thereon), the employee's age at retirement, and the employee's sex. All of the companies selected by the State to participate in the plan use sex-based mortality tables to calculate monthly retirement benefits. App. 12. Under these tables a man receives larger monthly payments than a woman who deferred the same amount of compensation and retired at the same age, because the tables classify annuitants on the basis of sex and women on average live longer than men.[2] Sex is the only factor that the tables use to classify individuals of the same age; the tables do not incorporate other factors correlating with longevity such as smoking habits, alcohol consumption, weight, medical history, or family history. *1078 As of August 18, 1978, 1,675 of the State's approximately 35,000 employees were participating in the deferred compensation plan. Of these 1,675 participating employees, 681 were women, and 572 women had elected some form of future annuity option. As of the same date, 10 women participating in the plan had retired, and 4 of those 10 had chosen a lifetime annuity. B On May 3, 1975, respondent Nathalie Norris, an employee in the Arizona Department of Economic Security, elected to participate in the plan. She requested that her deferred compensation be invested in the Lincoln National Life Insurance Co.'s fixed annuity contract. Shortly thereafter Arizona approved respondent's request and began withholding $1.50 from her salary each month. On April 25, 1978, after exhausting administrative remedies, respondent brought suit in the United States District Court for the District of Arizona against the State, the Governing Committee, and several individual members of the Committee. Respondent alleged that the defendants were violating 703(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e-2(a), by administering an annuity plan that discriminates on the basis of sex. Respondent requested that the District Court certify a class under Federal Rule of Civil Procedure 23(b)(2) consisting of all female employees of the State of Arizona "who are enrolled or will in the future enroll in the State Deferred Compensation Plan." Complaint ¶ V. On March 12, 1980, the District Court certified a class action and granted summary judgment for the plaintiff class,[3] holding that the State's plan violates Title VII.[4] 486 F. *1079 Supp. 645. The court directed petitioners to cease using sex-based actuarial tables and to pay retired female employees benefits equal to those paid to similarly situated men.[5] The United States Court of Appeals for the Ninth Circuit affirmed, with one judge dissenting. We granted certiorari to decide whether the Arizona plan violates Title VII and whether, if so, the relief ordered by the District Court was proper. II We consider first whether petitioners would have violated Title VII if they had run the entire deferred compensation plan themselves, without the participation of any insurance companies. Title VII makes it an unlawful employment practice "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or origin." 42 U.S. C. 2000e-2(a)(1). There is no question that the opportunity to participate in a deferred compensation plan constitutes a "conditio[n] or privileg[e] of employment,"[6] and that retirement benefits constitute a form of "compensation."[7] The issue we must decide is whether it is discrimination "because of sex" to pay a retired woman lower monthly benefits than a man who deferred the same amount of compensation. *1080 In Los Angeles Dept. of Water & we held that an employer had violated Title VII by requiring its female employees to make larger contributions to a pension fund than male employees in order to obtain the same monthly benefits upon retirement. Noting that Title VII's "focus on the individual is unambiguous," we emphasized that the statute prohibits an employer from treating some employees less favorably than others because of their race, religion, sex, or origin. -709. While women as a class live longer than men, we rejected the argument that the exaction of greater contributions from women was based on a "factor other than sex" — i. e., longevity — and was therefore permissible under the Equal Pay Act:[8] *1081 "[A]ny individual's life expectancy is based on a number of factors, of which sex is only one. [O]ne cannot `say that an actuarial distinction based entirely on sex is "based on any other factor than sex." Sex is exactly what it is based on.' " quoting and the Equal Pay Act. We concluded that a plan requiring women to make greater contributions than men discriminates "because of sex" for the simple reason that it treats each woman " `in a manner which but for [her] sex would [have been] different.' " quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, We have no hesitation in holding, as have all but one of the lower courts that have considered the question,[9] that the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement plan than at the pay-in stage.[10] We reject petitioners' contention that the *1082 Arizona plan does not discriminate on the basis of sex because a woman and a man who defer the same amount of compensation will obtain upon retirement annuity policies having approximately the same present actuarial value.[11] Arizona has simply offered its employees a choice among different levels of annuity benefits, any one of which, if offered alone, would be equivalent to the plan at issue in where the employer determined both the monthly contributions employees were required to make and the level of benefits that they were paid. If a woman participating in the Arizona plan wishes to obtain monthly benefits equal to those obtained by a man, she must make greater monthly contributions than he, just as the female employees in had to make greater contributions to obtain equal benefits. For any particular level of benefits that a woman might wish to receive, she will have to make greater monthly contributions to obtain that level of benefits than a man would have to make. The fact that Arizona has offered a range of discriminatory benefit levels, rather than only one such level, obviously provides no basis whatsoever for distinguishing *1083 In asserting that the Arizona plan is nondiscriminatory because a man and a woman who have made equal contributions will obtain annuity policies of roughly equal present actuarial value, petitioners incorrectly assume that Title VII permits an employer to classify employees on the basis of sex in predicting their longevity. Otherwise there would be no basis for postulating that a woman's annuity policy has the same present actuarial value as the policy of a similarly situated man even though her policy provides lower monthly benefits.[12] This underlying assumption — that sex may properly be used to predict longevity — is flatly inconsistent with the basic teaching of : that Title VII requires employers to treat their employees as individuals, not "as simply components of a racial, religious, sexual, or class." 435 U.S., squarely rejected the notion that, because women as a class live longer than men, an employer may adopt a retirement plan that treats every individual woman less favorably than every individual man. As we observed in "[a]ctuarial studies could unquestionably identify differences in life expectancy based on race or origin, as well as sex." If petitioners' interpretation of the statute were correct, such studies could be used as a justification for paying employees of one race lower monthly benefits than employees of another race. We continue to believe that "a statute that was designed to make race irrelevant in the employment market," ib citing could not reasonably be construed to permit such a racial classification. And if it would be unlawful to use race-based actuarial tables, it must also be unlawful to use sex-based tables, for under Title VII a distinction *1084 based on sex stands on the same footing as a distinction based on race unless it falls within one of a few narrow exceptions that are plainly inapplicable here.[13] What we said in bears repeating: "Congress has decided that classifications based on sex, like those based on origin or race, are unlawful." 435 U.S., The use of sex-segregated actuarial tables to calculate retirement benefits violates Title VII whether or not the tables reflect an accurate prediction of the longevity of women as a class, for under the statute "[e]ven a true generalization about [a] class" cannot justify class-based treatment.[14] *1085 An individual woman may not be paid lower monthly benefits simply because women as a class live longer than men.[15] Cf. We conclude that it is just as much discrimination "because of sex" to pay a woman lower benefits when she has made the same contributions as a man as it is to make her pay larger contributions to obtain the same benefits. III Since petitioners plainly would have violated Title VII if they had run the entire deferred compensation plan themselves, the only remaining question as to liability is whether their conduct is beyond the reach of the statute because it is the companies chosen by petitioners to participate in the plan that calculate and pay the retirement benefits. Title VII "primarily govern[s] relations between employees and their employer, not between employees and third parties."[16], n. 33. Recognizing this limitation on the reach of the statute, we noted in that "[n]othing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market." *1087 Relying on this caveat, petitioners contend that they have not violated Title VII because the life annuities offered by the companies participating in the Arizona plan reflect what is available in the open market. Petitioners cite a statement in the stipulation of facts entered into in the District Court that "[a]ll tables presently in use provide a larger sum to a male than to a female of equal age, account value and any guaranteed payment period." App. 10.[17] *1088 It is no defense that all annuities immediately available in the open market may have been based on sex-segregated actuarial tables. In context it is reasonably clear that the stipulation on which petitioners rely means only that all the tables used by the companies taking part in the Arizona plan are based on sex,[18] but our conclusion does not depend upon whether petitioners' construction of the stipulation is accepted or rejected. It is irrelevant whether any other insurers offered annuities on a sex-neutral basis, since the State did not simply set aside retirement contributions and let employees purchase annuities on the open market. On the contrary, the State provided the opportunity to obtain an annuity *1089 as part of its own deferred compensation plan. It invited insurance companies to submit bids outlining the terms on which they would supply retirement benefits[19] and selected the companies that were permitted to participate in the plan. Once the State selected these companies, it entered into contracts with them governing the terms on which benefits were to be provided to employees. Employees enrolling in the plan could obtain retirement benefits only from one of those companies, and no employee could be contacted by a company except as permitted by the State. Ariz. Regs. 2-9-06.A, 2-9-20.A Under these circumstances there can be no serious question that petitioners are legally responsible for the discriminatory terms on which annuities are offered by the companies chosen to participate in the plan. Having created a plan whereby employees can obtain the advantages of using deferred compensation to purchase an annuity only if they invest in one of the companies specifically selected by the State, the State cannot disclaim responsibility for the discriminatory features of the insurers' options.[20] Since employers are ultimately responsible for the "compensation, terms, conditions, [and] privileges of employment" provided to employees, an employer that adopts a fringe-benefit scheme that discriminates among its employees on the basis of race, religion, sex, or origin violates Title VII regardless of whether third parties are also involved in the discrimination.[21] In *1090 this case the State of Arizona was itself a party to contracts concerning the annuities to be offered by the insurance companies, and it is well established that both parties to a discriminatory contract are liable for any discriminatory provisions the contract contains, regardless of which party initially suggested inclusion of the discriminatory provisions.[22] It would be inconsistent with the broad remedial purposes of Title VII[23] to hold that an employer who adopts a discriminatory *1091 fringe-benefit plan can avoid liability on the ground that he could not find a third party willing to treat his employees on a nondiscriminatory basis.[24] An employer who confronts such a situation must either supply the fringe benefit himself, without the assistance of any third party, or not provide it at all. IV We turn finally to the relief awarded by the District Court. The court enjoined petitioners to assure that future annuity payments to retired female employees shall be equal to the payments received by similarly situated male employees.[25] In Albemarle Paper we emphasized that one of the main purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." We recognized that there is a strong presumption that " `[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.' " -419, quoting Once a violation of the statute has been found, retroactive relief "should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through *1092 past discrimination." Applying this standard, we held that the mere absence of bad faith on the part of the employer is not a sufficient reason for denying such Although this Court noted in that "[t]he Albemarle presumption in favor of retroactive liability can seldom be overcome," the Court concluded that under the circumstances the District Court had abused its discretion in requiring the employer to refund to female employees all contributions they were required to make in excess of the contributions demanded of men. The Court explained that "conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to us, may well have assumed that a program like the Department's was entirely lawful," since "[t]he courts had been silent on the question, and the administrative agencies had conflicting views." The Court also noted that retroactive relief based on "[d]rastic changes in the legal rules governing pension and insurance funds" can "jeopardiz[e] the insurer's solvency and, ultimately, the insureds' benefits," and that the burden of such relief can fall on innocent third parties. While the relief ordered here affects only benefit payments made after the date of the District Court's judgment, it does not follow that the relief is wholly prospective in nature, as an injunction concerning future conduct ordinarily is, and should therefore be routinely awarded once liability is established. When a court directs a change in benefits based on contributions made before the court's order, the court is awarding relief that is fundamentally retroactive in nature. This is true because retirement benefits under a plan such as that at issue here represent a return on contributions which were made during the employee's working years and which were intended to fund the benefits without any additional contributions from any source after retirement. *1093 A recognition that the relief awarded by the District Court is partly retroactive is only the beginning of the inquiry. Absent special circumstances a victim of a Title VII violation is entitled to whatever retroactive relief is necessary to undo any damage resulting from the violation. See Albemarle Paper -419, 421. As to any disparity in benefits that is attributable to contributions made after our decision in there are no special circumstances justifying the denial of retroactive Our ruling today was clearly foreshadowed by That decision should have put petitioners on notice that a man and a woman who make the same contributions to a retirement plan must be paid the same monthly benefits.[26] To the extent that any disparity in benefits coming due after the date of the District Court's judgment is attributable to contributions made after there is therefore no unfairness in requiring petitioners to pay retired female employees whatever sum is necessary each month to bring them up to the benefit level that they would have enjoyed had their post- contributions been treated in the same way as those of similarly situated male employees. To the extent, however, that the disparity in benefits that the District Court required petitioners to eliminate is attributable *1094 to contributions made before the court gave insufficient attention to this Court's recognition in that until that decision the use of sex-based tables might reasonably have been assumed to be lawful. Insofar as this portion of the disparity is concerned, the District Court should have inquired into the circumstances in which petitioners, after could have applied sex-neutral tables to the pre- contributions of a female employee and a similarly situated male employee without violating any contractual rights that the latter might have had on the basis of his pre- contributions. If, in the case of a particular female employee and a similarly situated male employee, petitioners could have applied sex-neutral tables to pre- contributions without violating any contractual right of the male employee, they should have done so in order to prevent further discrimination in the payment of retirement benefits in the wake of this Court's ruling in[27] Since a female employee in this situation should have had sex-neutral tables applied to her pre- contributions, it is only fair that petitioners be required to supplement any benefits coming due after the District Court's judgment by whatever sum is necessary to compensate her for their failure to adopt sex-neutral tables. If, on the other hand, sex-neutral tables could not have been applied to the pre- contributions of a particular female employee and any similarly situated male employee without violating the male employee's contractual rights, it would be inequitable to award such To do so would be *1095 to require petitioners to compensate the female employee for a disparity attributable to pre- conduct even though such conduct might reasonably have been assumed to be lawful and petitioners could not have done anything after to eliminate that disparity short of expending state funds. With respect to any female employee determined to fall in this category, petitioners need only ensure that her monthly benefits are no lower than they would have been had her post- contributions been treated in the same way as those of a similarly situated male employee. The record does not indicate whether some or all of the male participants in the plan who had not retired at the time was decided[28] had any contractual right to a particular level of benefits that would have been impaired by the application of sex-neutral tables to their pre- contributions. The District Court should address this question on remand. JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE REHNQUIST join, dissenting in part and concurring in part, and with whom JUSTICE O'CONNOR joins as to Part III. The Court today holds that an employer may not offer its employees life annuities from a private insurance company that uses actuarially sound, sex-based mortality tables. This holding will have a far-reaching effect on the operation of insurance and pension plans. Employers may be forced to discontinue offering life annuities, or potentially disruptive changes may be required in long-established methods of calculating insurance and pensions.[1] Either course will work a *1096 major change in the way the cost of insurance is determined — to the probable detriment of all employees. This is contrary to our explicit recognition in Los Angeles Dept. of Water & that Title VII "was [not] intended to revolutionize the insurance and pension industries." I The State of Arizona provides its employees with a voluntary pension plan that allows them to defer receipt of a portion of their compensation until retirement. If an employee chooses to participate, an amount designated by the employee is withheld from each paycheck and invested by the State on the employee's behalf. When an employee retires, he or she may receive the amount that has accrued in one of three ways. The employee may withdraw the total amount accrued, arrange for periodic payments of a fixed sum for a fixed time, or use the accrued amount to purchase a life annuity. There is no contention that the State's plan discriminates between men and women when an employee contributes to the fund. The plan is voluntary and each employee may contribute as much as he or she chooses. Nor does anyone contend that either of the first two methods of repaying the accrued amount at retirement is discriminatory. Thus, if Arizona had adopted the same contribution plan but provided only the first two repayment options, there would be no dispute that its plan complied with Title VII of the Civil Rights *1097 Act of 1964, as amended, 42 U.S. C. 2000e et seq. ( ed. and Supp. V). The first two options, however, have disadvantages. If an employee chooses to take a lump-sum payment, the tax liability will be substantial.[2] The second option ameliorates the tax problem by spreading the receipt of the accrued amount over a fixed period of time. This option, however, does not guard against the possibility that the finite number of payments selected by the employee will fail to provide income for the remainder of his or her life. The third option — the purchase of a life annuity — resolves both of these problems. It reduces an employee's tax liability by spreading the payments out over time, and it guarantees that the employee will receive a stream of payments for life. State law prevents Arizona from accepting the financial uncertainty of funding life annuities. Ariz. Rev. Stat. Ann. 38-871(C)(1) (Supp. -1983). But to achieve tax benefits under federal law, the life annuity must be purchased from a company designated by the retirement plan. Rev. Rul. 72-25, 1972-1 Cum. Bull. 127; Rev. Rul. 68-, 1968-1 Cum. Bull 193. Accordingly, Arizona contracts with private insurance companies to make life annuities available to its employees. The companies that underwrite the life annuities, as do the vast majority of private insurance companies in the United States, use sex-based mortality tables. Thus, the only effect of Arizona's third option is to allow its employees to purchase at a tax saving the same annuities they otherwise would purchase on the open market. The Court holds that Arizona's voluntary plan violates Title VII. In the majority's view, Title VII requires an employer to follow one of three courses. An employer must provide unisex annuities itself, contract with insurance companies to provide such annuities, or provide no annuities to its employees. Ante, at 1091 (MARSHALL, J., concurring in judgment in part). The first option is largely illusory. Most *1098 employers do not have either the financial resources or administrative ability to underwrite annuities. Or, as in this case, state law may prevent an employer from providing annuities. If unisex annuities are available, an employer may contract with private insurance companies to provide them. It is stipulated, however, that the insurance companies with which Arizona contracts do not provide unisex annuities, nor do insurance companies generally underwrite them. The insurance industry either is prevented by state law from doing so[3] or it views unisex mortality tables as actuarially unsound. An employer, of course, may choose the third option. It simply may decline to offer its employees the right to purchase annuities at a substantial tax saving. It is difficult to see the virtue in such a compelled choice. II As indicated above, the consequences of the Court's holding are unlikely to be beneficial. If the cost to employers of offering unisex annuities is prohibitive or if insurance carriers choose not to write such annuities, employees will be denied the opportunity to purchase life annuities — concededly the most advantageous pension plan — at lower cost.[4] If, alternatively, insurance carriers and employers choose to offer these annuities, the heavy cost burden of equalizing benefits probably will be passed on to current employees. There is *10 no evidence that Congress intended Title VII to work such a change. Nor does support such a sweeping reading of this statute. That case expressly recognized the limited reach of its holding — a limitation grounded in the legislative history of Title VII and the inapplicability of Title VII's policies to the insurance industry. A We were careful in to make clear that the question before us was narrow. We stated: "All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund." 435 U.S., at And our holding was limited expressly to the precise issue before us. We stated that "[a]lthough we conclude that the Department's practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries." The Court in had good reason for recognizing the narrow reach of Title VII in the particular area of the insurance industry. Congress has chosen to leave the primary responsibility for regulating the insurance industry to the respective States. See McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq.[5] This Act reflects the *1100 long-held view that the "continued regulation by the several States of the business of insurance is in the public interest." 15 U.S. C. 1011; see Given the consistent policy of entrusting insurance regulation to the States, the majority is not justified in assuming that Congress intended in 1964 to require the industry to change longstanding actuarial methods, approved over decades by state insurance commissions.[6] *1101 Nothing in the language of Title VII supports this pre-emption of state jurisdiction. Nor has the majority identified any evidence in the legislative history that Congress considered *1102 the widespread use of sex-based mortality tables to be discriminatory or that it intended to modify its previous grant by the McCarran-Ferguson Act of exclusive jurisdiction to the States to regulate the terms of protection offered by insurance companies. Rather, the legislative history indicates precisely the opposite. The only reference to this issue occurs in an explanation of the Act by Senator Humphrey during the debates on the Senate floor. He stated that it was "unmistakably clear" that Title VII did not prohibit different treatment of men and women under industrial benefit plans.[7] See 110 Cong. Rec. 13663-13664 (1964). As we recognized in "[alt]hough he did not address differences in employee contributions based on sex, Senator Humphrey apparently assumed that the 1964 Act would have little, if any, impact on existing pension plans." This statement *1103 was not sufficient, as held, to preclude the application of Title VII to an employer-operated plan. See But Senator Humphrey's explanation provides strong support for 's recognition that Congress intended Title VII to have only that indirect effect on the private insurance industry. B As neither the language of the statute nor the legislative history supports its holding, the majority is compelled to rely on its perception of the policy expressed in Title VII. The policy, of course, is broadly to proscribe discrimination in employment practices. But the statute itself focuses specifically on the individual and "precludes treatment of individuals as simply components of a racial, religious, sexual, or class." This specific focus has little relevance to the business of insurance. See Insurance and life annuities exist because it is impossible to measure accurately how long any one individual will live. Insurance companies cannot make individual determinations of life expectancy; they must consider instead the life expectancy of identifiable groups. Given a sufficiently large group of people, an insurance company can predict with considerable reliability the rate and frequency of deaths within the group based on the past mortality experience of similar groups. Title VII's concern for the effect of employment practices on the individual thus is simply inapplicable to the actuarial predictions that must be made in writing insurance and annuities. C The accuracy with which an insurance company predicts the rate of mortality depends on its ability to identify groups with similar mortality rates. The writing of annuities thus requires that an insurance company group individuals according to attributes that have a significant correlation with mortality. The most accurate classification system would be to *1104 identify all attributes that have some verifiable correlation with mortality and divide people into groups accordingly, but the administrative cost of such an undertaking would be prohibitive. Instead of identifying all relevant attributes, most insurance companies classify individuals according to criteria that provide both an accurate and efficient measure of longevity, including a person's age and sex. These particular criteria are readily identifiable, stable, and easily verifiable. See Benston, The Economics of Gender Discrimination in Employee Fringe Benefits: Revisited, 4-501 It is this practice — the use of a sex-based group classification — that the majority ultimately condemns. See ante, at 1083-1086 (MARSHALL, J., concurring in judgment in part). The policies underlying Title VII, rather than supporting the majority's decision, strongly suggest — at least for me — the opposite conclusion. This remedial statute was enacted to eradicate the types of discrimination in employment that then were pervasive in our society. The entire thrust of Title VII is directed against discrimination — disparate treatment on the basis of race or sex that intentionally or arbitrarily affects an individual. But as JUSTICE BLACKMUN has stated, life expectancy is a "nonstigmatizing factor that demonstrably differentiates females from males and that is not measurable on an individual basis. [T]here is nothing arbitrary, irrational, or `discriminatory' about recognizing the objective and accepted disparity in female-male life expectancies in computing rates for retirement plans." 435 U. S., Explicit sexual classifications, to be sure, require close examination, but they are not automatically invalid.[8] Sex-based mortality tables reflect objective actuarial experience. Because their use does not entail discrimination in any *1105 normal understanding of that term,[9] a court should hesitate to invalidate this long-approved practice on the basis of its own policy judgment. Congress may choose to forbid the use of any sexual classifications in insurance, but nothing suggests that it intended to do so in Title VII. And certainly the policy underlying Title VII provides no warrant for extending the reach of the statute beyond Congress' intent. III The District Court held that Arizona's voluntary pension plan violates Title VII and ordered that future annuity payments to female retirees be made equal to payments received by similarly situated men.[10] The Court of Appeals for the Ninth Circuit affirmed. The Court today affirms the Court of Appeals' judgment insofar as it holds that Arizona's voluntary pension plan violates Title VII. But this finding of a statutory violation provides no basis for approving the retroactive relief awarded by the District Court. To approve this award would be both unprecedented and manifestly unjust. We recognized in that retroactive relief is normally appropriate in the typical Title VII case, but concluded that the District Court had abused its discretion in awarding such As we noted, the employer in may well have assumed that its pension program was lawful. More importantly, a retroactive *1106 remedy would have had a potentially disruptive impact on the operation of the employer's pension plan. The business of underwriting insurance and life annuities requires careful approximation of risk. Reserves normally are sufficient to cover only the cost of funding and administering the plan. Should an unforeseen contingency occur, such as a drastic change in the legal rules governing pension and insurance funds, both the insurer's solvency and the insured's benefits could be jeopardized. This case presents no different considerations. did put all employer-operated pension funds on notice that they could not "requir[e] that men and women make unequal contributions to [the] fund," at but it expressly confirmed that an employer could set aside equal contributions and let each retiree purchase whatever benefit his or her contributions could command on the "open market," Given this explicit limitation, an employer reasonably could have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market. As in holding employers liable retroactively would have devastating results. The holding applies to all employer-sponsored pension plans, and the cost of complying with the District Court's award of retroactive relief would range from $817 to $1,260 million annually for the next 15 to 30 years.[11] Department of Labor Cost Study 32. In this case, the cost would fall on the State of Arizona. Presumably other state and local governments also would be affected directly by today's decision. Imposing such unanticipated *1107 financial burdens would come at a time when many States and local governments are struggling to meet substantial fiscal deficits. Income, excise, and property taxes are being increased. There is no justification for this Court, particularly in view of the question left open in to impose this magnitude of burden retroactively on the public. Accordingly, liability should be prospective only.[

Justice Brennan

majority

Sun Ship, Inc. v. Pennsylvania

https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/

https://www.courtlistener.com/api/rest/v3/clusters/110316/

1979-132

The single question presented by these consolidated cases is whether a State may apply its workers' compensation scheme to land-based injuries that fall within the coverage of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972. 33 U.S. C. §§ 901-950. We hold that it may. I The individual appellees are five employees of appellant Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River, a navigable water of the United States in Pennsylvania. Each employee was injured after the effective date of the 1972 amendments to the LHWCA while involved in shipbuilding or ship repair activities. Although the LHWCA applied to the injuries sustained, each appellee filed claims for benefits under the Pennsylvania Workmen's Compensation Act with state authorities. Appellant contended that the federal compensation statute was the employees' exclusive remedy. In upholding awards to *717 each appellee,[1] the Pennsylvania Workmen's Compensation Appeal Board ruled that the LHWCA did not pre-empt state compensation laws. The Commonwealth Court affirmed, and the Supreme Court of Pennsylvania denied petitions for allowance of appeal. We noted probable jurisdiction, 444 U.S. 1011 (1980), and affirm. II The evolution of the law of compensation for workers injured in maritime precincts is familiar. In 1917, Southern Pacific Co. v. Jensen, 244 U.S. 205, declared that States were constitutionally barred from applying their compensation systems to maritime injuries, and thus interfering with the overriding federal policy of a uniform maritime law. Subsequent decisions invalidated congressional efforts to delegate compensatory authority to the States within this national maritime sphere. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. W. C. Dawson & Co., 264 U.S. 219 (1924). At the same time, the Court began to narrow the Jensen doctrine by identifying circumstances in which the subject of litigation might be maritime yet "local in character," and thus amenable to relief under state law. Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922). And, in 1927, Congress was finally successful in extending a measure of protection to marine workers excluded by Jensen by enacting a federal compensation law—the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. § 901 et seq. That statute provided, in pertinent part, that "[c]ompensation shall be payable [for an injury] . . . occurring upon the navigable waters of the United States . . . if recovery . . . *718 through workmen's compensation proceedings may not validly be provided by State law." 44 Stat. 1426. Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from the proper forum by statute of limitations. Davis v. Department of Labor, 317 U.S. 249, 254 (1942). After a decade and a half during which there had not been formulated "any guiding, definite rule to determine the extent of state power in advance of litigation," id., at 253, the Court determined that the border between federal and state compensation schemes was less a line than a "twilight zone," in which "employees must have their rights determined case by case . . . ," id., at 256. Within this zone, Davis effectively established a regime of concurrent jurisdiction. Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), further overlapped federal and state-law coverage for marine workers. Calbeck held that the LHWCA comprehended "all injuries sustained by employees on navigable waters," id., at 124, without regard to whether the locus of an event was "maritime but local," and hence within the scope of state compensation provisions. We interpreted the statutory phrase "if recovery . . . may not validly be provided by State law" to mean that the LHWCA would "reac[h] all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy . . . [,] whether or not a particular one was also within the constitutional reach of a state workmen's compensation law." Id., at 126-127. Yet having extended the LHWCA into the "maritime but local" zone, Calbeck did not overturn Davis by treating the *719 federal statute as exclusive. To the contrary, Calbeck relied upon Davis, and discussed at length its proposition that an injury within the "maritime but local" sphere might be compensated under either state or federal law. 370 U.S., at 128-129. So, too, Calbeck's explanation of Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366 (1953), indicated that although an injury might be compensable under the Longshoremen's Act, "there is little doubt that a state compensation act could validly have been applied to it." 370 U.S., at 129. Even more significantly, Calbeck's ruling that one of the employees in a consolidated case should not be held to have elected to pursue state remedies was necessarily premised upon the view that state relief was concurrently available. Id., at 131-132; see also Nacirema Co. v. Johnson, 396 U.S. 212, 220-221 (1969); Nations v. Morris, 483 F.2d 577 (CA5 1973) (Brown, C. J.). Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. "Maritime but local" injuries "upon the navigable waters of the United States," 33 U.S. C. § 903 (a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction— were remediable only under state law. Nacirema Co. v. Johnson, supra. III In 1972, Congress superseded Nacirema Co. v. Johnson by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States. Pub. L. 92-576, 86 Stat. 1251, amending 33 U.S. C. § 903 (a). In so doing, the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law. Absent any contradicting signal from Congress, the principles of Davis v. Department of Labor, supra, and of Calbeck *720 v. Travelers Insurance Co., supra, direct the conclusion that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen's Act ran concurrently with state remedies in the "maritime but local" zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Compare State Industrial Comm'n v. Nordenholt Corp., 259 U.S. 263 (1922), with Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). Furthermore, the "jurisdictional dilemma," Davis, supra, at 255, that results when employees must claim relief under one of two exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is fixed upon land, as it is when the line is drawn between two maritime spheres. To read the 1972 amendments as compelling laborers to seek relief under two mutually exclusive remedial systems would lead to the prejudicial consequences which we described in Davis as "defeat[ing] the purpose of the federal act, which seeks to give `to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation,' and the state Acts . . . which ai[m] at `sure and certain relief for workmen.'" 317 U.S., at 254. See Calbeck, supra, at 126. The language of the 1972 amendments cannot fairly be understood as pre-empting state workers' remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis and Calbeck. Appellant focuses our attention upon the deletion from amended § 903 (a) of the phrase: "[i]f recovery . . . through workmen's compensation proceedings may not validly be provided by State law." But, if anything, that change reinforces our previous interpretation of that section *721 as contemplating concurrent jurisdiction. Calbeck, 370 U. S., at 126. For it was that reference to state law which provided the strongest (although ultimately unsuccessful) argument for reading the pre-1972 § 903 (a) as an exclusive jurisdictional provision. Calbeck, supra, at 132 (STEWART, J., dissenting). Whether Congress accepted Calbeck's view that the state-law clause was consonant with concurrent jurisdiction, or the dissenters' construction of the clause as inconsistent with concurrent jurisdiction, the deletion of that language in 1972—if it indicates anything—may logically only imply acquiescence in Calbeck's conclusion that the LHWCA operates within the same ambit as state workers' remedies.[2] It would be a tour de force of statutory misinterpretation to treat the removal of phrasing that arguably establishes exclusive jurisdiction as manifesting the intent to command such exclusivity. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen's Act. Appellant can draw little support from general expressions of intent to alleviate unjust disparities in recovery conditioned upon the location of marine laborers at the time of an accident; as Part IV, infra, demonstrates, concurrency of jurisdiction in no way undercuts that commendable policy. And appellant is not much assisted by fixing upon the sentence in the bill Reports that declares: "It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a *722 substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water's edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land." S. Rep. No. 92-1125, p. 13 (1972); H. R. Rep. No. 92-1441, p. 10 (1972) (emphasis added). That statement likely means only that state laws should not be permitted to apply exclusively to injuries occurring upon land; the "substantial disparity in benefits" that troubled Congress is eliminated once federal law provides a concurrent or supplementary route to compensation. And, in any event, as Professors Gilmore and Black have noted, "the statement does not appear to be entitled to much weight," since the "part of the Committee Report which is devoted to the shoreward extension of LH[W]CA coverage does not so much as mention the pre-1972 case law on `maritime but local' and the `twilight zone.' . . ." G. Gilmore & C. Black, The Law of Admiralty 425 (2d ed. 1975) (hereafter Gilmore & Black).[3] In particular, there is no intimation of intent to overrule Davis and Calbeck—a significant omission in light of the care which the Reports elsewhere take in identifying the Supreme Court cases to be overturned by the abolition of longshoremen's actions for unseaworthiness. See S. Rep. No. 92-1125, supra, at 8-12; H. R. Rep. No. 92-1441, supra, at 4-8; Gilmore & Black 425. We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine.[4] *723 IV Appellant vigorously contends, nevertheless, that jurisdictional exclusivity is—in "fact" or in "law"—implied in the LHWCA. Pointing to declarations of congressional policy to eliminate disparities in compensation to marine workers depending on whether they were injured on land or over water, S. Rep. No. 92-1125, supra, at 12-13; H. R. Rep. No. 92-1441. supra, at 10-11, appellant urges that concurrent remedial jurisdiction on land would defeat the uniformity principle underlying the statute. As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws.[5] The thrust of the amendments was to "upgrade the benefits." S. Rep. No. 92-1125, supra, at 1; see Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 261-262 (1977). Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal *724 minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the Longshoremen's Act, if the latter applies.[6] To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system.[7] But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen's unseaworthiness remedy. See S. Rep. No. 92-1125, supra, at 4-5; H. R. Rep. No. 92-1441, supra, at 1; Northeast Marine Terminal Co. v. Caputo, supra, at 261-262. Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the *725 unseaworthiness action, and do not mention pre-emption of state remedies. See S. Rep. No. 92-1125, supra, at 4-5; H. R. Rep. No. 92-1441, supra, at 1. Finally, we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer's standpoint, necessitates exclusivity for each compensation system within a separate sphere. Mandating exclusive jurisdiction will not relieve employers of their distinct obligations under state and federal compensation law. The line that circumscribes the jurisdictional compass of the LHWCA—a compound of "status" and "situs"—is no less vague than its counterpart in the pre-"twilight zone" Jensen era. See generally P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1980); Northeast Marine Terminal Co. v. Caputo, supra; Gilmore & Black 424, 428-430; 4 A. Larson, Law of Workmen's Compensation § 89.70, p. 16-283 (1979). Thus, even were the LHWCA exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the scope of the LHWCA.[8] Our observation about exclusive jurisdiction in Davis v. Department of Labor is apt whether jurisdictional barriers are erected on land or at the water's edge: "The horns of the jurisdictional dilemma press as sharply on employers as on employees." 317 U.S., at 255. Of one thing we may be certain. The exclusivity rule which appellant urges upon us would thrust employees into the same jurisdictional peril from which they were rescued by Davis and Calbeck v. Travelers Insurance Co. See Gilmore & Black 425.[9] The legislative policy animating the LHWCA's landward *726 shift was remedial; the amendments' framers acted out of solicitude for the workers. See P. C. Pfeiffer Co., supra, at 74-75; Northeast Marine Terminal Co., 432 U. S., at 268. To adopt appellant's position, then, would blunt the thrust of the 1972 amendments, and frustrate Congress' intent to aid injured maritime laborers. We decline to do so in the name of "uniformity." Accordingly, we affirm. It is so ordered.

The single question presented by these consolidated cases is whether a State may apply its workers' compensation scheme to land-based injuries that fall within the coverage of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972. 33 U.S. C. 901-950. We hold that it may. I The individual appellees are five employees of appellant Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River, a navigable water of the United States in Pennsylvania. Each employee was injured after the effective date of the 1972 amendments to the LHWCA while involved in shipbuilding or ship repair activities. Although the LHWCA applied to the injuries sustained, each appellee filed claims for benefits under the Pennsylvania Workmen's Compensation Act with state authorities. Appellant contended that the federal compensation statute was the employees' exclusive remedy. In upholding awards to *717 each appellee,[1] the Pennsylvania Workmen's Compensation Appeal Board ruled that the LHWCA did not pre-empt state compensation laws. The Commonwealth Court affirmed, and the Supreme Court of Pennsylvania denied petitions for allowance of appeal. We noted probable jurisdiction, and affirm. II The evolution of the law of compensation for workers injured in maritime precincts is familiar. In 1917, Southern Pacific declared that States were constitutionally barred from applying their compensation systems to maritime injuries, and thus interfering with the overriding federal policy of a uniform maritime law. Subsequent decisions invalidated congressional efforts to delegate compensatory authority to the States within this national maritime sphere. Knickerbocker Ice ; At the same time, the Court began to narrow the Jensen doctrine by identifying circumstances in which the subject of litigation might be maritime yet "local in character," and thus amenable to relief under state law. Western Fuel ; Grant Smith-Porter Ship And, in 1927, Congress was finally successful in extending a measure of protection to marine workers excluded by Jensen by enacting a federal compensation law—the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. 901 et seq. That statute provided, in pertinent part, that "[c]ompensation shall be payable [for an injury] occurring upon the navigable waters of the United States if recovery *718 through workmen's compensation proceedings may not validly be provided by State law." Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from the proper forum by statute of limitations. After a decade and a half during which there had not been formulated "any guiding, definite rule to determine the extent of state power in advance of litigation," the Court determined that the border between federal and state compensation schemes was less a line than a "twilight zone," in which "employees must have their rights determined case by case" Within this zone, effectively established a regime of concurrent jurisdiction. further overlapped federal and state-law coverage for marine workers. held that the LHWCA comprehended "all injuries sustained by employees on navigable waters," without regard to whether the locus of an event was "maritime but local," and hence within the scope of state compensation provisions. We interpreted the statutory phrase "if recovery may not validly be provided by State law" to mean that the LHWCA would "reac[h] all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy [,] whether or not a particular one was also within the constitutional reach of a state workmen's compensation law." Yet having extended the LHWCA into the "maritime but local" zone, did not overturn by treating the *719 federal statute as exclusive. To the contrary, relied upon and discussed at length its proposition that an injury within the "maritime but local" sphere might be compensated under either state or federal law. -129. So, too, 's explanation of Avondale Marine Ways, indicated that although an injury might be compensable under the Longshoremen's Act, "there is little doubt that a state compensation act could validly have been applied to it." Even more significantly, 's ruling that one of the employees in a consolidated case should not be held to have elected to pursue state remedies was necessarily premised upon the view that state relief was concurrently available. ; see also Nacirema ; Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. "Maritime but local" injuries "upon the navigable waters of the United States," 33 U.S. C. 903 (a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction— were remediable only under state law. Nacirema III In 1972, Congress superseded Nacirema by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States. Stat. 1251, amending 33 U.S. C. 903 (a). In so doing, the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law. Absent any contradicting signal from Congress, the principles of and of *720 v. Travelers Insurance direct the conclusion that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen's Act ran concurrently with state remedies in the "maritime but local" zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Compare State Industrial with Southern Pacific Furthermore, the "jurisdictional dilemma," that results when employees must claim relief under one of two exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is fixed upon land, as it is when the line is drawn between two maritime spheres. To read the 1972 amendments as compelling laborers to seek relief under two mutually exclusive remedial systems would lead to the prejudicial consequences which we described in as "defeat[ing] the purpose of the federal act, which seeks to give `to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation,' and the state Acts which ai[m] at `sure and certain relief for workmen.'" 317 U.S., at See The language of the 1972 amendments cannot fairly be understood as pre-empting state workers' remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in and Appellant focuses our attention upon the deletion from amended 903 (a) of the phrase: "[i]f recovery through workmen's compensation proceedings may not validly be provided by State law." But, if anything, that change reinforces our previous interpretation of that section *721 as contemplating concurrent jurisdiction. 370 U. S., For it was that reference to state law which provided the strongest (although ultimately unsuccessful) argument for reading the pre-1972 903 (a) as an exclusive jurisdictional provision. Whether Congress accepted 's view that the state-law clause was consonant with concurrent jurisdiction, or the dissenters' construction of the clause as inconsistent with concurrent jurisdiction, the deletion of that language in 1972—if it indicates anything—may logically only imply acquiescence in 's conclusion that the LHWCA operates within the same ambit as state workers' remedies.[2] It would be a tour de force of statutory misinterpretation to treat the removal of phrasing that arguably establishes exclusive jurisdiction as manifesting the intent to command such exclusivity. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen's Act. Appellant can draw little support from general expressions of intent to alleviate unjust disparities in recovery conditioned upon the location of marine laborers at the time of an accident; as Part IV, infra, demonstrates, concurrency of jurisdiction in no way undercuts that commendable policy. And appellant is not much assisted by fixing upon the sentence in the bill Reports that declares: "It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a *722 substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water's edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land." S. Rep. No. p. 13 (1972); H. R. Rep. No. p. 10 (1972) (emphasis added). That statement likely means only that state laws should not be permitted to apply exclusively to injuries occurring upon land; the "substantial disparity in benefits" that troubled Congress is eliminated once federal law provides a concurrent or supplementary route to compensation. And, in any event, as Professors Gilmore and Black have noted, "the statement does not appear to be entitled to much weight," since the "part of the Committee Report which is devoted to the shoreward extension of LH[W]CA coverage does not so much as mention the pre-1972 case law on `maritime but local' and the `twilight zone.'" G. Gilmore & C. Black, The Law of Admiralty 425 (2d ed. 1975) (hereafter Gilmore & Black).[3] In particular, there is no intimation of intent to overrule and —a significant omission in light of the care which the Reports elsewhere take in identifying the Supreme Court cases to be overturned by the abolition of longshoremen's actions for unseaworthiness. See S. Rep. No. ; H. R. Rep. No. ; Gilmore & Black 425. We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine.[4] *723 IV Appellant vigorously contends, nevertheless, that jurisdictional exclusivity is—in "fact" or in "law"—implied in the LHWCA. Pointing to declarations of congressional policy to eliminate disparities in compensation to marine workers depending on whether they were injured on land or over water, S. Rep. No. ; H. R. Rep. No. appellant urges that concurrent remedial jurisdiction on land would defeat the uniformity principle underlying the statute. As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws.[5] The thrust of the amendments was to "upgrade the benefits." S. Rep. No. ; see Northeast Marine Terminal v. Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal *724 minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the Longshoremen's Act, if the latter applies.[6] To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system.[7] But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen's unseaworthiness remedy. See S. Rep. No. ; H. R. Rep. No. ; Northeast Marine Terminal v. at Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the *725 unseaworthiness action, and do not mention pre-emption of state remedies. See S. Rep. No. ; H. R. Rep. No. Finally, we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer's standpoint, necessitates exclusivity for each compensation system within a separate sphere. Mandating exclusive jurisdiction will not relieve employers of their distinct obligations under state and federal compensation law. The line that circumscribes the jurisdictional compass of the LHWCA—a compound of "status" and "situs"—is no less vague than its counterpart in the pre-"twilight zone" Jensen era. See generally P. C. Pfeiffer v. Ford, ; Northeast Marine Terminal v. Gilmore & Black 424, 428-430; 4 A. Larson, Law of Workmen's Compensation 89.70, p. 16-283 (1979). Thus, even were the LHWCA exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the scope of the LHWCA.[8] Our observation about exclusive jurisdiction in is apt whether jurisdictional barriers are erected on land or at the water's edge: "The horns of the jurisdictional dilemma press as sharply on employers as on employees." 317 U.S., Of one thing we may be certain. The exclusivity rule which appellant urges upon us would thrust employees into the same jurisdictional peril from which they were rescued by and See Gilmore & Black 425.[9] The legislative policy animating the LHWCA's landward *726 shift was remedial; the amendments' framers acted out of solicitude for the workers. See P. C. Pfeiffer ; Northeast Marine Terminal To adopt appellant's position, then, would blunt the thrust of the 1972 amendments, and frustrate Congress' intent to aid injured maritime laborers. We decline to do so in the name of "uniformity." Accordingly, we affirm. It is so ordered.

per_curiam

per_curiam

Ray v. United States

https://www.courtlistener.com/opinion/111889/ray-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/111889/

1986-100

Petitioner was found guilty of one count of conspiracy to possess cocaine with intent to distribute, and two counts of possession of cocaine with intent to distribute. He was sentenced to concurrent 7-year prison terms on all three counts, and to concurrent special parole terms of five years on the two possession counts. The Court of Appeals affirmed petitioner's *737 conspiracy conviction and one of his possession convictions. United States v. Sandoval, 791 F.2d 929 (CA5 1986) (judg. order). Applying the so-called "concurrent sentence doctrine," the court declined to review the second possession conviction because the sentences on the two possession counts were concurrent. We granted certiorari to review the role of the concurrent sentence doctrine in the federal courts. 479 U.S. 960 (1986). It now appears, however, that petitioner is not in fact serving concurrent sentences. Title 18 U.S. C. § 3013 (1982 ed., Supp. III) provides that district courts shall assess a monetary charge "on any person convicted of an offense against the United States." Pursuant to this section, the District Court imposed a $50 assessment on each count, in addition to the concurrent prison and parole terms, for a total of $150. Since petitioner's liability to pay this total depends on the validity of each of his three convictions, the sentences are not concurrent. The judgment of the Court of Appeals is therefore vacated, and the cause is remanded to that court so that it may consider petitioner's challenge to his second possession conviction. It is so ordered

Petitioner was found guilty of one count of conspiracy to possess cocaine with intent to distribute, and two counts of possession of cocaine with intent to distribute. He was sentenced to concurrent 7-year prison terms on all three counts, and to concurrent special parole terms of five years on the two possession counts. The Court of Appeals affirmed petitioner's *737 conspiracy conviction and one of his possession convictions. United Applying the so-called "concurrent sentence doctrine," the court declined to review the second possession conviction because the sentences on the two possession counts were concurrent. We granted certiorari to review the role of the concurrent sentence doctrine in the federal courts. It now appears, however, that petitioner is not in fact serving concurrent sentences. Title 18 U.S. C. 3013 (1982 ed., Supp. III) provides that district courts shall assess a monetary charge "on any person convicted of an offense against the United States." Pursuant to this section, the District Court imposed a $50 assessment on each count, in addition to the concurrent prison and parole terms, for a total of $150. Since petitioner's liability to pay this total depends on the validity of each of his three convictions, the sentences are not concurrent. The judgment of the Court of Appeals is therefore vacated, and the cause is remanded to that court so that it may consider petitioner's challenge to his second possession conviction. It is so ordered

Justice Blackmun

dissenting

Kremer v. Chemical Constr. Corp.

https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/

https://www.courtlistener.com/api/rest/v3/clusters/110706/

1981-090

Today the Court follows an isolated Second Circuit approach and holds that a discrimination complainant cannot bring a Title VII suit in federal court after unsuccessfully seeking state court "review" of a state antidiscrimination agency's unfavorable decision. The Court embraces a rule that has been subject to challenge within the Second Circuit[1] and that has been "vigorously attacked and soundly rejected by other courts."[2] The Court reaches this result because it purports to find nothing in Title VII inconsistent with the application of the general preclusion rule of 28 U.S. C. § 1738 to the state court's affirmance of the state agency's decision. For a compelling array of reasons, the Court is wrong. *487 I The Court, as it must, concedes that a state agency determination does not preclude a trial de novo in federal district court. Ante, at 468-470, and n. 7. Congress made it clear beyond doubt that state agency findings would not prevent the Title VII complainant from filing suit in federal court. Title VII provides that no charge may be filed until 60 days "after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706(c), 42 U.S. C. § 2000e-5(c). After a charge is filed, the Equal Employment Opportunity Commission (EEOC) may take action and, eventually, the complainant may file suit, §§ 706(b) and (f)(1). By permitting a charge to be filed after termination of state proceedings, the statute expressly contemplates that a plaintiff may bring suit despite a state finding of no discrimination.[3] *488 This fact is also made clear by § 706(b). In 1972, by Pub. L. 92-261, § 4, 86 Stat. 104, Congress amended that section by directing that the EEOC "accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law."[4] If the original version of Title VII had given the outcomes of state "proceedings" preclusive effect, Congress would not have found it necessary to amend the statute in 1972 to direct that they be given "substantial weight." And if in 1972 Congress had intended final decisions in state "proceedings" to have preclusive effect, it certainly would not have instructed that they be given "substantial weight."[5] Thus, Congress expressly recognized in both § 706(b) and § 706(c) that a complainant could bring a Title VII suit in federal court despite the conclusion of state "proceedings." And, as the Court must acknowledge, see ante, at 470-471, n. 8, when Congress referred to state "proceedings," it referred to both state agency proceedings and state judicial *489 review of those agency proceedings. "[T]hroughout Title VII the word `proceeding,' or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62-63 (1980). Yet the Court nevertheless finds that petitioner's Title VII suit is precluded by the termination of state "proceedings." In this case, the New York State Division of Human Rights (NYHRD) found no probable cause to believe that petitioner had been a victim of discrimination. Under the Court's own rule, that determination in itself does not bar petitioner from filing a Title VII suit in federal district court. According to the Court, however, petitioner lost his opportunity to bring a federal suit when he unsuccessfully sought review of the state agency's decision in the New York courts. As the Court applies preclusion principles to Title VII, the state court affirmance of the state agency decision — not the state agency decision itself — blocks any subsequent Title VII suit. The Court reaches this result through a schizophrenic reading of § 706(b). See ante, at 469-470, and n. 8. According to the Court, when Congress amended § 706(b) so that state "proceedings" would be accorded "substantial weight," it meant two different things at the same time: it intended state agency "proceedings" to be accorded only "substantial weight," while, simultaneously, state judicial "proceedings" in review of those agency "proceedings" would be accorded "substantial weight and more" — that is, "preclusive effect." But the statutory language gives no hint of this hidden double meaning. Instead of reading an unexpressed intent into § 706(b), the Court should accept the plain language of the statute. All state "proceedings," whether agency proceedings or state judicial review proceedings, are entitled to "substantial weight," not "preclusive effect." As the Court implicitly concedes when it permits suit despite the conclusion *490 of agency proceedings, "substantial weight" is a very different concept from "preclusive effect," and Congress thus did not intend for the termination of any state "proceeding" to foreclose a subsequent Title VII suit. In addition, the Court must disregard the clear import of § 706(c). That section explicitly contemplates that a complainant can bring a Title VII suit despite the termination of state "proceedings." Once again, the statute contains no suggestion that any state "proceeding" has preclusive effect on a subsequent Title VII suit. Nonetheless, contrary to § 706(c), the Court bars petitioner's Title VII suit because of the termination of state "proceedings."[6] The Court's attempt to give § 706(b) a double meaning and to avoid the language of § 706(c) is made all the more awkward because the Court's decision artificially separates the proceedings before the reviewing state court from the state administrative process. Indeed, if Congress meant to permit a Title VII suit despite the termination of state agency proceedings, it is only natural to conclude that Congress also intended to permit a Title VII suit after the agency decision has been simply affirmed by a state court. State court review is merely the last step in the administrative process, the final means of review of the state agency's decision. For instance, in New York, the NYHRD "is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices." Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y. 2d 72, 77, 417 N.E.2d 525, 528 (1980). When, as in this case, the NYHRD finds no probable cause, a reviewing court must affirm the Division's decision unless it is "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion," see *491 N. Y. Exec. Law § 297-a(7)(e) (McKinney 1972),[7] that is, unless the decision is "devoid of a rational basis." State Office of Drug Abuse Servs. v. State Human Rights Appeal Bd., 48 N.Y. 2d 276, 284, 397 N.E.2d 1314, 1318 (1979). If the agency decides to hold a hearing, its decision must be affirmed if it is "supported by substantial evidence on the whole record." N. Y. Exec. Law § 297-a(7)(d) (McKinney 1972). See State Division of Human Rights v. Syracuse University, 46 A.D. 2d 1002, 362 N. Y. S. 2d 104 (1974). See generally N. Y. Exec. Law § 298 (McKinney Supp. 1981-1982). This review, therefore, is not de novo in the state courts. When it affirms the agency's decision, the reviewing court does not determine that the Division was correct. In fact, the court may not "substitute its judgment for that of the [NYHRD]," State Division of Human Rights v. Mecca Kendall Corp., 53 A.D. 2d 201, 203-204, 385 N. Y. S. 2d 665, 666-667 (1976); the court is "not empowered to find new facts or take a different view of the weight of the evidence if the [NYHRD's] determination is supported by substantial evidence," State Division of Human Rights v. Columbia University, 39 N.Y. 2d 612, 616, 350 N.E.2d 396, 398 (1976), cert. denied sub nom. Gilinsky v. Columbia University, 429 U.S. 1096 (1977). In affirming, the reviewing court finds only that the agency's conclusion "was a reasonable *492 one and thus may not be set aside by the courts although a contrary decision may `have been reasonable and also sustainable.' " Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y. 2d, at 79, 417 N.E.2d, at 529, quoting Mize v. State Division of Human Rights, 33 N.Y. 2d 53, 56, 304 N.E.2d 231, 233 (1973).[8] The Court purports to give preclusive effect to the New York court's decision. But the Appellate Division made no finding one way or the other concerning the merits of petitioner's discrimination claim. The NYHRD, not the New York court, dismissed petitioner's complaint for lack of probable cause. In affirming, the court merely found that the agency's decision was not arbitrary or capricious. Thus, although it claims to grant a state court decision preclusive effect, *493 in fact the Court bars petitioner's suit based on the state agency's decision of no probable cause. The Court thereby disregards the express provisions of Title VII, for, as the Court acknowledges, Congress has decided that an adverse state agency decision will not prevent a complainant's subsequent Title VII suit.[9] Finally, if the Court is in fact giving preclusive effect only to the state court decision, the Court misapplies 28 U.S. C. § 1738 by barring petitioner's suit. The state reviewing court never considered the merits of petitioner's discrimination claim, the subject matter of a Title VII suit in federal court. It is a basic principle of preclusion doctrine, see ante, at 481-482, n. 22, that a decision in one judicial proceeding cannot bar a subsequent suit raising issues that were not relevant to the first decision. "If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation." Commissioner v. Sunnen, 333 U.S. 591, 600 (1948). See also Allen v. McCurry, 449 U.S. 90, 94 (1980). Here, the state court decided only whether the state agency decision was arbitrary or capricious. Since the discrimination claim, not the validity of the state agency's decision, is the issue before the federal court, under § 1738 the state court's decision by itself cannot preclude a federal Title VII suit. *494 Thus, the Court is doing one of two things: either it is granting preclusive effect to the state agency's decision, a course that it concedes would violate Title VII, or it is misapplying § 1738 by giving preclusive effect to a state court decision that did not address the issue before the federal court. Instead of making one of these two mistakes, the Court should accept the fact that the New York state court judicial review is simply the end of the state administrative process, the state "proceedings." The Court searches in vain for a partial repeal of § 1738 in Title VII because it is blind to the fact that judicial review is a part — indeed, a distinctly secondary part — of the administration of discrimination claims filed before the NYHRD.[10] II A The Court's decision also flies in the face of Title VII's legislative history. Under the Court's ruling, a complainant is foreclosed from pursuing his federal Title VII remedy if he unsuccessfully seeks judicial correction of the state agency's adverse disposition of his discrimination charge. Thus, state proceedings are the complainant's sole remedy when he unsuccessfully pursues judicial review on the state side. But Title VII's legislative history makes clear that Congress never intended the outcome of state agency proceedings to be the discrimination complainant's exclusive remedy. One of the principal issues during congressional consideration of Title VII in 1964 was the proper role of state fair employment practices commissions. See, e. g., 110 Cong. Rec. 7216 (1964). At various times, Congress considered proposals to give the state commissions exclusive jurisdiction over *495 discrimination charges. But, repeatedly, Congress rejected those proposals. When Title VII was before the House for the first time, the House twice rejected attempts to prevent the application of Title VII in States that were enforcing adequate fair employment laws. See 110 Cong. Rec. 2727 (1964); id., at 2828. In the end, the House provided for exclusive jurisdiction in the States, but only under certain conditions. Under the House version, the EEOC would have been given authority to determine the adequacy of state agency procedures. If it found the procedures to be adequate, the EEOC was directed to enter into a written agreement with the state agency. In States covered by those agreements, the EEOC would not bring civil actions in cases referred to in the agreements and the complainants would likewise be barred from bringing a civil suit in federal court. H. R. 7152, 88th Cong., 2d Sess., § 708(b) (1964). See 110 Cong. Rec. 7214 (1964). But when the bill went to the Senate, the House approach was discarded for the present provisions of the statute. *496 Senator Dirksen presented the explanation of the changes. Id., at 12817. Among these was the statement that the exclusive-jurisdiction provision of the House bill "which provides for the ceding of Federal jurisdiction is deleted." Id., at 12819. Instead, "it has been replaced by the new provisions of section 706 which provide that where there is a State or local law prohibiting the alleged unlawful employment practice, the State or local authorities are given exclusive jurisdiction for a limited period of time" (emphasis added). Ibid. Thus, after state proceedings had terminated, the complainant was free to seek federal remedies. See id., at 12721 (remarks of Sen. Humphrey); id., at 12595 (remarks of Sen. Clark) (accepting final version because complainant can "eventually" pursue federal remedies after applying for state relief). Congress left open only a narrow exception for possible exclusive state agency jurisdiction. The EEOC was empowered to enter into worksharing agreements with state agencies. A worksharing agreement did not automatically foreclose a complainant from filing a federal civil suit, but the EEOC was free to include such a provision in a worksharing agreement if it considered that course wise. Id., at 12820. See § 709(b). Thus, in the end, Congress expressly decided that no discrimination complainant should be left solely to his remedies before state fair employment commissions, unless the EEOC agreed otherwise. Yet, contrary to this congressional choice, the Court would deny some discrimination victims any federal remedy and would make the decisions of state commissions their exclusive redress, even in the absence of an EEOC agreement. When a state court refuses to overturn a state commission's rejection of a complainant's discrimination *497 claim, the Court declares the state remedy to be exclusive. B But the Court qualifies its holding. The Court permits the state agency's decision to be the complainant's exclusive remedy only if the agency's procedures satisfy the minimal requirements of due process. Ante, at 481-485. The Court surveys the procedures of the NYHRD and concludes that they are in accord with due process. Ante, at 483-485.[11] This discussion by itself demonstrates the fallacy of the Court's attempt to differentiate between the state agency's decision and the state court's affirmance of that decision. By relying more heavily on the adequacy of the state agency's procedures than on the adequacy of the state court's procedures, the Court underscores that it is, in fact, granting preclusive effect to a state administrative decision. It is important, also, to note that in two different ways the Court's inquiry violates the congressional intent. First, the Court undertakes to determine whether the state procedures are adequate when Congress has expressly left that decision to the EEOC. Congress explicitly permitted a state complainant to file suit in federal court despite a final state agency decision, unless the EEOC has signed a worksharing agreement with the state agency foreclosing subsequent federal suits. If the EEOC agreed with the Court that minimal due process in agency procedures justified barring subsequent Title VII suits when the state agency's decision had been affirmed by a state court, the EEOC could sign worksharing agreements with state agencies on those terms. By assuming the authority to make that decision, the Court usurps a role that Congress reserved to the EEOC. *498 Second, throughout its consideration of Title VII, Congress was concerned that state agency procedures were not the equivalent of those that it intended federal authorities to employ. Senator Clark told the Senate that "State and local FEPC laws vary widely in effectiveness." 110 Cong. Rec. 7205 (1964). He continued: "In many areas effective enforcement is hampered by inadequate legislation, inadequate procedures, or an inadequate budget." Ibid. Unlike the Court, Congress realized that no legal doctrine could accurately gauge the effectiveness of state agencies and laws in eliminating discrimination. In their interpretative memorandum, Senators Clark and Case[12] explained: "It has been suggested . . . that there should be some provision automatically providing for exclusive State jurisdiction where adequate State remedies for discrimination in employment exist. Such a proposal is unworkable. Congress cannot determine nor can we devise a formula for determining which State laws and procedures are adequate. . . . An antidiscrimination law cannot be evaluated simply by an examination of its provisions, `for the letter killeth, but the spirit giveth life.' " Id., at 7214. Yet the Court concludes that minimal due process standards provide safeguards sufficient to warrant denying a discrimination victim federal remedies if a state court rejects his request to overturn an adverse state agency decision. In Title VII, Congress wanted to assure discrimination victims more than bare due process; it wanted them to have the benefit of a vigorous effort to eliminate discrimination. See Alexander *499 v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974). By affording some discrimination complainants less, the Court contravenes the congressional intent behind Title VII. C The Court's search of the legislative history uncovers only a single bit of concrete support for its interpretation of Title VII.[13] But, ironically, the legislative history cited by the Court actually undercuts its position. During the 1972 debates over changes in Title VII, Senator Hruska proposed an amendment that would have made Title VII the exclusive remedy for a discrimination victim, with certain exceptions. One of the exceptions permitted concurrent state proceedings. The Senator explained: "[T]here would be a further exception and that would be proceedings in a State agency. Those proceedings could continue notwithstanding the pendency of an employee's action under section 706 of title VII. *500 It seems to me and others that this is only fair." 118 Cong. Rec. 3369 (1972). Thus, even Senator Hruska would not have prevented duplicative state and federal proceedings. Here is strong evidence of a congressional consensus that state and federal remedies should exist independently of each other. The Court quotes part of Senator Javits' response to Senator Hruska's proposal. See ante, at 475. What the Court fails to point out is that the bulk of Senator Javits' response rejected the suggestion that the number of discrimination remedies should be reduced. Senator Javits quoted with approval from the testimony of an official of the Department of Justice: "In the field of civil rights, the Congress has regularly insured that there be a variety of enforcement devices to insure that all available resources are brought to bear on problems of discrimination. . . . "At this juncture, when we are all agreed that some improvement in the enforcement of Title VII is needed, it would be . . . unwise to diminish in any way the variety of enforcement means available to deal with discrimination in employment." 118 Cong. Rec. 3369-3370 (1972). Thus, since Senator Javits was responding to a proposed amendment that expressly provided for separate federal and state proceedings, he certainly did not suggest that state proceedings should bar Title VII suits when he spoke of res judicata. See ante, at 475.[14] At the most, he may have been *501 referring to suits brought under overlapping federal statutes. And, given his reluctance to reduce the number of available antidiscrimination remedies, it is not clear that his remarks were intended to reach even that far.[15] In no sense can the defeat of Senator Hruska's amendment be interpreted as a congressional endorsement of the Court's decision to bar a complainant's Title VII suit based on a state court affirmance of an adverse state agency decision.[16] In Senator Javits' own words, "[w]e should not cut off the range of remedies which is available." 118 Cong. Rec. 3370 (1972).[17] III The Court's opinion today is also contrary to the rationales underlying its past Title VII decisions. Time and again, the Court has held that Congress did not intend to foreclose a *502 Title VII suit because of the conclusion of proceedings in another forum. The case list begins with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when the Court refused to prevent a plaintiff from bringing suit in federal court because of an EEOC determination of no reasonable cause. The Court cited "the large volume of complaints before the Commission and the nonadversary character of many of its proceedings," id., at 799; noted that Title VII "does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause," id., at 798; and refused to "engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts," id., at 798-799. The Court today could just as easily have written about "the nonadversary character" of state agency proceedings and the fact that Title VII does not "restrict a complainant's right to sue" to those charges as to which a state court has not affirmed the state agency's findings. In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Court repeated the same theme by permitting a Title VII suit despite a prior adverse arbitration under a collective-bargaining agreement. The Court emphasized that Congress intended a scheme of overlapping, independent, supplementary discrimination remedies: "[L]egislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. . . . Title VII provides for consideration of employment-discrimination claims in several forums. . . . And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history *503 of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." Id., at 47-48 (footnotes omitted) (emphasis added). The Court today disregards the congressional intent described in Alexander when it makes state agency proceedings the exclusive remedy for those complainants who unsuccessfully pursue state judicial review. Finally, in two subsequent decisions, the Court adhered to Alexander. In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461 (1975), it held that Title VII and 42 U.S. C. § 1981, although "related" and "directed to most of the same ends," provide "separate, distinct, and independent" discrimination remedies. And in Chandler v. Roudebush, 425 U.S. 840 (1976), the Court permitted a federal employee to bring a Title VII suit even though the Civil Service Commission had affirmed a federal agency's rejection of the employee's discrimination claim. In each of these four cases, the Court refused to close the doors of the federal courthouse to the Title VII plaintiff. The Court has allowed Title VII plaintiffs to sue in federal court, though they had failed before the EEOC, an arbitrator, and a federal agency. And even today's majority must add another forum to this list, namely, a state antidiscrimination agency. Until now, it has been "clear from [the] scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination." New York Gaslight Club, Inc. v. Carey, 447 U. S., at 65. The Court departs from the reasoning of an unbroken line of its prior decisions when it bars a discrimination complainant from suing under Title VII simply because he unsuccessfully sought state judicial "review" of an adverse state agency decision. *504 IV Perhaps the most disturbing aspect of the Court's decision is its tendency to cut back upon two critical policies underlying Title VII. First, Congress intended that state antidiscrimination procedures be an integral part of the Nation's battle against discrimination. For that reason, Congress did not pre-empt state antidiscrimination agencies, see 110 Cong. Rec. 7216 (1964), and instead gave state and local authorities an initial opportunity to resolve discrimination complaints. See e. g., id., at 12725 (remarks of Sen. Humphrey). The Court's decision is directly contrary to this congressional intent. The lesson of the Court's ruling is: An unsuccessful state discrimination complainant should not seek state judicial review.[18] If a discrimination complainant pursues state judicial review and loses — a likely result given the deferential standard of review in state court — he forfeits his right to seek redress in a federal court. If, however, he simply bypasses the state courts, he can proceed to the EEOC and ultimately to federal court. Instead of a deferential review of an agency record, he will receive in federal court a de novo hearing accompanied by procedural aids such as broad discovery rules and the ability to subpoena witnesses. Thus, paradoxically, the Court effectively has eliminated state reviewing courts from the fight against discrimination in an entire class of cases. Consequently, the state courts will not have a chance to correct state agency errors when the agencies rule against discrimination victims, and the quality of *505 state agency decisionmaking can only deteriorate.[19] It is a perverse sort of comity that eliminates the reviewing function of state courts in the name of giving their decisions due respect. This argument against preclusion is not novel. In prior decisions, the Court has refused to set up incentives for discrimination complainants to abandon alternative remedies. In Alexander v. Gardner-Denver Co., 415 U. S., at 59, it concluded: "Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII *506 claims would thus be reduced, and the result could well be more litigation, not less." In New York Gaslight Club, Inc. v. Carey, 447 U. S., at 65, the Court addressed state proceedings directly, explaining: "Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. . . . Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme." In this case, the Court has chosen preclusion over common sense, with the result that the state courts will decline, not grow, in importance.[20] Second, the Court, for a small class of discrimination complainants, has undermined the remedial purpose of Title VII. Invariably, there will be some complainants who will not be aware of today's decision. The Court has thus constructed a rule that will serve as a trap for the unwary pro se or poorly represented complainant. For these complainants, their sole remedy lies in the state administrative processes. Yet, inevitably those agencies do not give all discrimination complaints careful attention. Often hampered by "inadequate *507 procedures" or "an inadequate budget," see 110 Cong. Rec. 7205 (1964), the state antidiscrimination agency may give a discrimination charge less than the close examination it would receive in federal court.[21] When, as in this case, the state agency dismisses for lack of probable cause, the discrimination complainant is particularly at risk, because inadequate staffing of state agencies can lead to "a tendency to dismiss too many complaints for alleged lack of probable cause."[22] Though state courts may be diligent in reviewing agency dismissals for no probable cause, the nature of the agency's deliberations combined with deferential judicial review can lead only to discrimination charges receiving less careful consideration than Congress intended when it passed Title VII. The Court's decision thus cannot be squared with the congressional intent that the fight against discrimination be a policy "of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).[23] *508 V For all these reasons, the Court's decision is neither "strongly suggested" nor "compelled" by Allen v. McCurry, 449 U.S. 90 (1980). See ante, at 476. In McCurry, the Court found only "the most equivocal support," 449 U.S., at 99, for an argument that Congress intended to override the general preclusion rule of § 1738 when it enacted 42 U.S. C. § 1983. But here, the language, the legislative history, and the fundamental policies of Title VII all demonstrate that Congress contemplated relitigation of a discrimination claim in federal court, even though a state court had refused to disturb a state agency decision adverse to the complainant. And no drastic consequences would flow from a decision finding § 1738 inapplicable in this case. The Court would not be forced to permit a subsequent Title VII suit in federal court if the complainant already had lost a trial on the merits in state court. See n. 10, supra. Furthermore, the state court affirmance of the state agency's decision would not be discarded. The state decision could be "admitted as evidence and accorded such weight as the court deems appropriate," Alexander v. Gardner-Denver Co., 415 U. S., at 60, that is, "substantial weight," see § 706(b). But despite the reasonableness of the rule followed by other Courts of Appeals, see n. 2, supra, the Court improperly applies § 1738 to bar petitioner from bringing a Title VII suit in federal court. I dissent.

Today the Court follows an isolated Second Circuit approach and holds that a discrimination complainant cannot bring a Title VII suit in federal court after unsuccessfully seeking state court "review" of a state antidiscrimination agency's unfavorable decision. The Court embraces a rule that has been subject to challenge within the Second Circuit[1] and that has been "vigorously attacked and soundly rejected by other courts."[] The Court reaches this result because it purports to find nothing in Title VII inconsistent with the application of the general preclusion rule of 8 U.S. C. 1738 to the state court's affirmance of the state agency's decision. For a compelling array of reasons, the Court is wrong. *487 I The Court, as it must, concedes that a state agency determination does not preclude a trial de novo in federal district court. Ante, at 468-470, and n. 7. Congress made it clear beyond doubt that state agency findings would not prevent the Title VII complainant from filing suit in federal court. Title VII provides that no charge may be filed until 60 days "after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 706(c), 4 U.S. C. 000e-5(c). After a charge is filed, the Equal Employment Opportunity Commission (EEOC) may take action and, eventually, the complainant may file suit, 706(b) and (f)(1). By permitting a charge to be filed after termination of state proceedings, the statute expressly contemplates that a plaintiff may bring suit despite a state finding of no discrimination.[3] *488 This fact is also made clear by 706(b). In 197, by Pub. L. 9-61, 4, Congress amended that section by directing that the EEOC "accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law."[4] If the original version of Title VII had given the outcomes of state "proceedings" preclusive effect, Congress would not have found it necessary to amend the statute in 197 to direct that they be given "substantial weight." And if in 197 Congress had intended final decisions in state "proceedings" to have preclusive effect, it certainly would not have instructed that they be given "substantial weight."[5] Thus, Congress expressly recognized in both 706(b) and 706(c) that a complainant could bring a Title VII suit in federal court despite the conclusion of state "proceedings." And, as the Court must acknowledge, see ante, at 470-471, n. 8, when Congress referred to state "proceedings," it referred to both state agency proceedings and state judicial *489 review of those agency proceedings. "[T]hroughout Title VII the word `proceeding,' or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial." New York Gaslight Club, Yet the Court nevertheless finds that petitioner's Title VII suit is precluded by the termination of state "proceedings." In this case, the New York State Division of Human Rights (NYHRD) found no probable cause to believe that petitioner had been a victim of discrimination. Under the Court's own rule, that determination in itself does not bar petitioner from filing a Title VII suit in federal district court. According to the Court, however, petitioner lost his opportunity to bring a federal suit when he unsuccessfully sought review of the state agency's decision in the New York courts. As the Court applies preclusion principles to Title VII, the state court affirmance of the state agency decision — not the state agency decision itself — blocks any subsequent Title VII suit. The Court reaches this result through a schizophrenic reading of 706(b). See ante, at 469-470, and n. 8. According to the Court, when Congress amended 706(b) so that state "proceedings" would be accorded "substantial weight," it meant two different things at the same time: it intended state agency "proceedings" to be accorded only "substantial weight," while, simultaneously, state judicial "proceedings" in review of those agency "proceedings" would be accorded "substantial weight and more" — that is, "preclusive effect." But the statutory language gives no hint of this hidden double meaning. Instead of reading an unexpressed intent into 706(b), the Court should accept the plain language of the statute. All state "proceedings," whether agency proceedings or state judicial review proceedings, are entitled to "substantial weight," not "preclusive effect." As the Court implicitly concedes when it permits suit despite the conclusion *490 of agency proceedings, "substantial weight" is a very different concept from "preclusive effect," and Congress thus did not intend for the termination of any state "proceeding" to foreclose a subsequent Title VII suit. In addition, the Court must disregard the clear import of 706(c). That section explicitly contemplates that a complainant can bring a Title VII suit despite the termination of state "proceedings." Once again, the statute contains no suggestion that any state "proceeding" has preclusive effect on a subsequent Title VII suit. Nonetheless, contrary to 706(c), the Court bars petitioner's Title VII suit because of the termination of state "proceedings."[6] The Court's attempt to give 706(b) a double meaning and to avoid the language of 706(c) is made all the more awkward because the Court's decision artificially separates the proceedings before the reviewing state court from the state administrative process. Indeed, if Congress meant to permit a Title VII suit despite the termination of state agency proceedings, it is only natural to conclude that Congress also intended to permit a Title VII suit after the agency decision has been simply affirmed by a state court. State court review is merely the last step in the administrative process, the final means of review of the state agency's decision. For instance, in New York, the NYHRD "is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices." Imperial Diner, When, as in this case, the NYHRD finds no probable cause, a reviewing court must affirm the Division's decision unless it is "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion," see *491 N. Y. Exec. Law 97-a(7)(e) (McKinney 197),[7] that is, unless the decision is "devoid of a rational basis." State Office of Drug Abuse If the agency decides to hold a hearing, its decision must be affirmed if it is "supported by substantial evidence on the whole record." N. Y. Exec. Law 97-a(7)(d) (McKinney 197). See State Division of Human See generally N. Y. Exec. Law 98 (McKinney Supp. 1981-198). This review, therefore, is not de novo in the state courts. When it affirms the agency's decision, the reviewing court does not determine that the Division was correct. In fact, the court may not "substitute its judgment for that of the [NYHRD]," State Division of Human ; the court is "not empowered to find new facts or take a different view of the weight of the evidence if the [NYHRD's] determination is supported by substantial evidence," State Division of Human cert. denied sub nom. (19). In affirming, the reviewing court finds only that the agency's conclusion "was a reasonable *49 one and thus may not be set aside by the courts although a contrary decision may `have been reasonable and also sustainable.' " Imperial Diner, quoting[8] The Court purports to give preclusive effect to the New York court's decision. But the Appellate Division made no finding one way or the other concerning the merits of petitioner's discrimination claim. The NYHRD, not the New York court, dismissed petitioner's complaint for lack of probable cause. In affirming, the court merely found that the agency's decision was not arbitrary or capricious. Thus, although it claims to grant a state court decision preclusive effect, *493 in fact the Court bars petitioner's suit based on the state agency's decision of no probable cause. The Court thereby disregards the express provisions of Title VII, for, as the Court acknowledges, Congress has decided that an adverse state agency decision will not prevent a complainant's subsequent Title VII suit.[9] Finally, if the Court is in fact giving preclusive effect only to the state court decision, the Court misapplies 8 U.S. C. 1738 by barring petitioner's suit. The state reviewing court never considered the merits of petitioner's discrimination claim, the subject matter of a Title VII suit in federal court. It is a basic principle of preclusion doctrine, see ante, at 481-48, n. that a decision in one judicial proceeding cannot bar a subsequent suit raising issues that were not relevant to the first decision. "If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation." See also Here, the state court decided only whether the state agency decision was arbitrary or capricious. Since the discrimination claim, not the validity of the state agency's decision, is the issue before the federal court, under 1738 the state court's decision by itself cannot preclude a federal Title VII suit. *4 Thus, the Court is doing one of two things: either it is granting preclusive effect to the state agency's decision, a course that it concedes would violate Title VII, or it is misapplying 1738 by giving preclusive effect to a state court decision that did not address the issue before the federal court. Instead of making one of these two mistakes, the Court should accept the fact that the New York state court judicial review is simply the end of the state administrative process, the state "proceedings." The Court searches in vain for a partial repeal of 1738 in Title VII because it is blind to the fact that judicial review is a part — indeed, a distinctly secondary part — of the administration of discrimination claims filed before the NYHRD.[] II A The Court's decision also flies in the face of Title VII's legislative history. Under the Court's ruling, a complainant is foreclosed from pursuing his federal Title VII remedy if he unsuccessfully seeks judicial correction of the state agency's adverse disposition of his discrimination charge. Thus, state proceedings are the complainant's sole remedy when he unsuccessfully pursues judicial review on the state side. But Title VII's legislative history makes clear that Congress never intended the outcome of state agency proceedings to be the discrimination complainant's exclusive remedy. One of the principal issues during congressional consideration of Title VII in 1964 was the proper role of state fair employment practices commissions. See, e. g., 1 Cong. Rec. 716 (1964). At various times, Congress considered proposals to give the state commissions exclusive jurisdiction over *495 discrimination charges. But, repeatedly, Congress rejected those proposals. When Title VII was before the House for the first time, the House twice rejected attempts to prevent the application of Title VII in States that were enforcing adequate fair employment laws. See 1 Cong. Rec. 77 (1964); In the end, the House provided for exclusive jurisdiction in the States, but only under certain conditions. Under the House version, the EEOC would have been given authority to determine the adequacy of state agency procedures. If it found the procedures to be adequate, the EEOC was directed to enter into a written agreement with the state agency. In States covered by those agreements, the EEOC would not bring civil actions in cases referred to in the agreements and the complainants would likewise be barred from bringing a civil suit in federal court. H. R. 715, 88th Cong., d Sess., 708(b) (1964). See 1 Cong. Rec. 714 (1964). But when the bill went to the Senate, the House approach was discarded for the present provisions of the statute. *496 Senator Dirksen presented the explanation of the changes. Among these was the statement that the exclusive-jurisdiction provision of the House bill "which provides for the ceding of Federal jurisdiction is deleted." Instead, "it has been replaced by the new provisions of section 706 which provide that where there is a State or local law prohibiting the alleged unlawful employment practice, the State or local authorities are given exclusive jurisdiction for a limited period of time" (emphasis added). Thus, after state proceedings had terminated, the complainant was free to seek federal remedies. See ; (accepting final version because complainant can "eventually" pursue federal remedies after applying for state relief). Congress left open only a narrow exception for possible exclusive state agency jurisdiction. The EEOC was empowered to enter into worksharing agreements with state agencies. A worksharing agreement did not automatically foreclose a complainant from filing a federal civil suit, but the EEOC was free to include such a provision in a worksharing agreement if it considered that course wise. See 709(b). Thus, in the end, Congress expressly decided that no discrimination complainant should be left solely to his remedies before state fair employment commissions, unless the EEOC agreed otherwise. Yet, contrary to this congressional choice, the Court would deny some discrimination victims any federal remedy and would make the decisions of state commissions their exclusive redress, even in the absence of an EEOC agreement. When a state court refuses to overturn a state commission's rejection of a complainant's discrimination *497 claim, the Court declares the state remedy to be exclusive. B But the Court qualifies its holding. The Court permits the state agency's decision to be the complainant's exclusive remedy only if the agency's procedures satisfy the minimal requirements of due process. Ante, at 481-485. The Court surveys the procedures of the NYHRD and concludes that they are in accord with due process. Ante, at 483-485.[11] This discussion by itself demonstrates the fallacy of the Court's attempt to differentiate between the state agency's decision and the state court's affirmance of that decision. By relying more heavily on the adequacy of the state agency's procedures than on the adequacy of the state court's procedures, the Court underscores that it is, in fact, granting preclusive effect to a state administrative decision. It is important, also, to note that in two different ways the Court's inquiry violates the congressional intent. First, the Court undertakes to determine whether the state procedures are adequate when Congress has expressly left that decision to the EEOC. Congress explicitly permitted a state complainant to file suit in federal court despite a final state agency decision, unless the EEOC has signed a worksharing agreement with the state agency foreclosing subsequent federal suits. If the EEOC agreed with the Court that minimal due process in agency procedures justified barring subsequent Title VII suits when the state agency's decision had been affirmed by a state court, the EEOC could sign worksharing agreements with state agencies on those terms. By assuming the authority to make that decision, the Court usurps a role that Congress reserved to the EEOC. *498 Second, throughout its consideration of Title VII, Congress was concerned that state agency procedures were not the equivalent of those that it intended federal authorities to employ. Senator Clark told the Senate that "State and local FEPC laws vary widely in effectiveness." 1 Cong. Rec. 705 (1964). He continued: "In many areas effective enforcement is hampered by inadequate legislation, inadequate procedures, or an inadequate budget." Unlike the Court, Congress realized that no legal doctrine could accurately gauge the effectiveness of state agencies and laws in eliminating discrimination. In their interpretative memorandum, Senators Clark and Case[1] explained: "It has been suggested that there should be some provision automatically providing for exclusive State jurisdiction where adequate State remedies for discrimination in employment exist. Such a proposal is unworkable. Congress cannot determine nor can we devise a formula for determining which State laws and procedures are adequate. An antidiscrimination law cannot be evaluated simply by an examination of its provisions, `for the letter killeth, but the spirit giveth life.' " Yet the Court concludes that minimal due process standards provide safeguards sufficient to warrant denying a discrimination victim federal remedies if a state court rejects his request to overturn an adverse state agency decision. In Title VII, Congress wanted to assure discrimination victims more than bare due process; it wanted them to have the benefit of a vigorous effort to eliminate discrimination. See Alexander By affording some discrimination complainants less, the Court contravenes the congressional intent behind Title VII. C The Court's search of the legislative history uncovers only a single bit of concrete support for its interpretation of Title VII.[13] But, ironically, the legislative history cited by the Court actually undercuts its position. During the 197 debates over changes in Title VII, Senator Hruska proposed an amendment that would have made Title VII the exclusive remedy for a discrimination victim, with certain exceptions. One of the exceptions permitted concurrent state proceedings. The Senator explained: "[T]here would be a further exception and that would be proceedings in a State agency. Those proceedings could continue notwithstanding the pendency of an employee's action under section 706 of title VII. *500 It seems to me and others that this is only fair." 118 Cong. Rec. 3369 (197). Thus, even Senator Hruska would not have prevented duplicative state and federal proceedings. Here is strong evidence of a congressional consensus that state and federal remedies should exist independently of each other. The Court quotes part of Senator Javits' response to Senator Hruska's proposal. See ante, at 475. What the Court fails to point out is that the bulk of Senator Javits' response rejected the suggestion that the number of discrimination remedies should be reduced. Senator Javits quoted with approval from the testimony of an official of the Department of Justice: "In the field of civil rights, the Congress has regularly insured that there be a variety of enforcement devices to insure that all available resources are brought to bear on problems of discrimination. "At this juncture, when we are all agreed that some improvement in the enforcement of Title VII is needed, it would be unwise to diminish in any way the variety of enforcement means available to deal with discrimination in employment." 118 Cong. Rec. 3369-3370 (197). Thus, since Senator Javits was responding to a proposed amendment that expressly provided for separate federal and state proceedings, he certainly did not suggest that state proceedings should bar Title VII suits when he spoke of res judicata. See ante, at 475.[14] At the most, he may have been *501 referring to suits brought under overlapping federal statutes. And, given his reluctance to reduce the number of available antidiscrimination remedies, it is not clear that his remarks were intended to reach even that far.[15] In no sense can the defeat of Senator Hruska's amendment be interpreted as a congressional endorsement of the Court's decision to bar a complainant's Title VII suit based on a state court affirmance of an adverse state agency decision.[16] In Senator Javits' own words, "[w]e should not cut off the range of remedies which is available." 118 Cong. Rec. 3370 (197).[17] III The Court's opinion today is also contrary to the rationales underlying its past Title VII decisions. Time and again, the Court has held that Congress did not intend to foreclose a *50 Title VII suit because of the conclusion of proceedings in another forum. The case list begins with McDonnell Douglas when the Court refused to prevent a plaintiff from bringing suit in federal court because of an EEOC determination of no reasonable cause. The Court cited "the large volume of complaints before the Commission and the nonadversary character of many of its proceedings," ; noted that Title VII "does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause," ; and refused to "engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts," -799. The Court today could just as easily have written about "the nonadversary character" of state agency proceedings and the fact that Title VII does not "restrict a complainant's right to sue" to those charges as to which a state court has not affirmed the state agency's findings. In the Court repeated the same theme by permitting a Title VII suit despite a prior adverse arbitration under a collective-bargaining agreement. The Court emphasized that Congress intended a scheme of overlapping, independent, supplementary discrimination remedies: "[L]egislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. Title VII provides for consideration of employment-discrimination claims in several forums. And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history *503 of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." (emphasis added). The Court today disregards the congressional intent described in Alexander when it makes state agency proceedings the exclusive remedy for those complainants who unsuccessfully pursue state judicial review. Finally, in two subsequent decisions, the Court adhered to Alexander. In it held that Title VII and 4 U.S. C. 1981, although "related" and "directed to most of the same ends," provide "separate, distinct, and independent" discrimination remedies. And in the Court permitted a federal employee to bring a Title VII suit even though the Civil Service Commission had affirmed a federal agency's rejection of the employee's discrimination claim. In each of these four cases, the Court refused to close the doors of the federal courthouse to the Title VII plaintiff. The Court has allowed Title VII plaintiffs to sue in federal court, though they had failed before the EEOC, an arbitrator, and a federal agency. And even today's majority must add another forum to this list, namely, a state antidiscrimination agency. Until now, it has been "clear from [the] scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination." New York Gaslight Club, The Court departs from the reasoning of an unbroken line of its prior decisions when it bars a discrimination complainant from suing under Title VII simply because he unsuccessfully sought state judicial "review" of an adverse state agency decision. *504 IV Perhaps the most disturbing aspect of the Court's decision is its tendency to cut back upon two critical policies underlying Title VII. First, Congress intended that state antidiscrimination procedures be an integral part of the Nation's battle against discrimination. For that reason, Congress did not pre-empt state antidiscrimination agencies, see 1 Cong. Rec. 716 (1964), and instead gave state and local authorities an initial opportunity to resolve discrimination complaints. See e. g., The Court's decision is directly contrary to this congressional intent. The lesson of the Court's ruling is: An unsuccessful state discrimination complainant should not seek state judicial review.[18] If a discrimination complainant pursues state judicial review and loses — a likely result given the deferential standard of review in state court — he forfeits his right to seek redress in a federal court. If, however, he simply bypasses the state courts, he can proceed to the EEOC and ultimately to federal court. Instead of a deferential review of an agency record, he will receive in federal court a de novo hearing accompanied by procedural aids such as broad discovery rules and the ability to subpoena witnesses. Thus, paradoxically, the Court effectively has eliminated state reviewing courts from the fight against discrimination in an entire class of cases. Consequently, the state courts will not have a chance to correct state agency errors when the agencies rule against discrimination victims, and the quality of *505 state agency decisionmaking can only deteriorate.[19] It is a perverse sort of comity that eliminates the reviewing function of state courts in the name of giving their decisions due respect. This argument against preclusion is not novel. In prior decisions, the Court has refused to set up incentives for discrimination complainants to abandon alternative remedies. In it concluded: "Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII *506 claims would thus be reduced, and the result could well be more litigation, not less." In New York Gaslight Club, the Court addressed state proceedings directly, explaining: "Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme." In this case, the Court has chosen preclusion over common sense, with the result that the state courts will decline, not grow, in importance.[0] Second, the Court, for a small class of discrimination complainants, has undermined the remedial purpose of Title VII. Invariably, there will be some complainants who will not be aware of today's decision. The Court has thus constructed a rule that will serve as a trap for the unwary pro se or poorly represented complainant. For these complainants, their sole remedy lies in the state administrative processes. Yet, inevitably those agencies do not give all discrimination complaints careful attention. Often hampered by "inadequate *507 procedures" or "an inadequate budget," see 1 Cong. Rec. 705 (1964), the state antidiscrimination agency may give a discrimination charge less than the close examination it would receive in federal court.[1] When, as in this case, the state agency dismisses for lack of probable cause, the discrimination complainant is particularly at risk, because inadequate staffing of state agencies can lead to "a tendency to dismiss too many complaints for alleged lack of probable cause."[] Though state courts may be diligent in reviewing agency dismissals for no probable cause, the nature of the agency's deliberations combined with deferential judicial review can lead only to discrimination charges receiving less careful consideration than Congress intended when it passed Title VII. The Court's decision thus cannot be squared with the congressional intent that the fight against discrimination be a policy "of the highest priority."[3] *508 V For all these reasons, the Court's decision is neither "strongly suggested" nor "compelled" by See ante, at 476. In McCurry, the Court found only "the most equivocal support," for an argument that Congress intended to override the general preclusion rule of 1738 when it enacted 4 U.S. C. 1983. But here, the language, the legislative history, and the fundamental policies of Title VII all demonstrate that Congress contemplated relitigation of a discrimination claim in federal court, even though a state court had refused to disturb a state agency decision adverse to the complainant. And no drastic consequences would flow from a decision finding 1738 inapplicable in this case. The Court would not be forced to permit a subsequent Title VII suit in federal court if the complainant already had lost a trial on the merits in state court. See n. Furthermore, the state court affirmance of the state agency's decision would not be discarded. The state decision could be "admitted as evidence and accorded such weight as the court deems appropriate," that is, "substantial weight," see 706(b). But despite the reasonableness of the rule followed by other Courts of Appeals, see n. the Court improperly applies 1738 to bar petitioner from bringing a Title VII suit in federal court. I dissent.

Justice Kennedy

concurring

Lopez v. Monterey County

https://www.courtlistener.com/opinion/118257/lopez-v-monterey-county/

https://www.courtlistener.com/api/rest/v3/clusters/118257/

1998-016

I would not decide in this case whether "§ 5's preclearance requirement applies to a covered county's nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction." Ante, at 282. I think it quite possible, particularly in light of the constitutional concerns identified by Justice Thomas, that the phrase "seek to administer" in the statute requires that the covered jurisdiction exercise discretion or pursue its own policy aims before the obligation to preclear a voting change arises. See 14 Oxford English Dictionary 877 (2d ed. 1989) (defining "seek," inter alia, as "[t]o make it one's aim, to try or attempt to (do something)"). That interpretation draws some support from our decisions in Connor v. Johnson, 402 U.S. 690 (1971) (per curiam), and Young v. Fordice, 520 U.S. 273 (1997), which suggest that covered jurisdictions need not seek preclearance when a noncovered entity requires them to implement specific voting changes. See Connor v. Johnson, supra, at 691 (holding that covered jurisdictions need not preclear voting changes ordered by a federal court); Young v. Fordice, supra, at 290 (noting that a State's adoption of the National Voter Registration Act's registration system "is not, by itself, a change for the purposes of § 5, for the State has no choice but to do so"). I concur in the majority's disposition of this case, however, because it is clear that the state enactments requiring the voting changes at issue in fact embodied the policy preferences and determinations of the county itself. See McDaniel v. Sanchez, 452 U.S. 130, 148-151 (1981) (voting changes contained in federal-court order require preclearance if they were proposed by the covered jurisdiction); Young v. Fordice, supra, at 285 (state changes made in an effort to comply with federal law require preclearance if they "reflect the *289 exercise of policy choice and discretion by [state] officials"). For example, the 1979 state law which codified the county's merger of its municipal court districts stated on its face that it was enacted at the county's behest. 1979 Cal. Stats., ch. 694, § 4 ("[T]his act is in accordance with the request of a local governmental entity or entities which desired legislative authority to carry out the program specified in this act"). In these circumstances, the county was required to seek preclearance of the voting changes codified by the state enactments.

I would not decide in this case whether 5's preclearance requirement applies to a covered county's nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction." Ante, at 282. I think it quite possible, particularly in light of the constitutional concerns identified by Justice Thomas, that the phrase "seek to administer" in the statute requires that the covered jurisdiction exercise discretion or pursue its own policy aims before the obligation to preclear a voting change arises. See 14 Oxford English Dictionary 877 (2d ed. 1989) (defining "seek," inter alia, as "[t]o make it one's aim, to try or attempt to (do something)"). That interpretation draws some support from our decisions in and which suggest that covered jurisdictions need not seek preclearance when a noncovered entity requires them to implement specific voting changes. See ; (noting that a State's adoption of the National Voter Registration Act's registration system "is not, by itself, a change for the purposes of 5, for the State has no choice but to do so"). I concur in the majority's disposition of this case, however, because it is clear that the state enactments requiring the voting changes at issue in fact embodied the policy preferences and determinations of the county itself. See ; For example, the 1979 state law which codified the county's merger of its municipal court districts stated on its face that it was enacted at the county's behest. 1979 Cal. Stats., ch. 694, 4 ("[T]his act is in accordance with the request of a local governmental entity or entities which desired legislative authority to carry out the program specified in this act"). In these circumstances, the county was required to seek preclearance of the voting changes codified by the state enactments.

Justice Scalia

concurring

United States v. Cleveland Indians Baseball Co.

https://www.courtlistener.com/opinion/118419/united-states-v-cleveland-indians-baseball-co/

https://www.courtlistener.com/api/rest/v3/clusters/118419/

2000-039

If I believed that the text of the tax statutes addressed the issue before us, I might well find for the respondent, giving that text the same meaning the Court found it to have in the benefits provisions of the Social Security Act. See Social Security Bd. v. Nierotko, 327 U.S. 358, 370, and n. 25 (1946). The Court's principal reason for assigning the identical language a different meaning in the present case— *221 leaving aside statements in testimony and Committee Reports that I have no reason to believe Congress was aware of—is that tax assessments do not present the equitable considerations implicated by the potential arbitrary decrease of benefits in Nierotko. See ante, at 212-213. But the Court acknowledges that departing from Nierotko will produce arbitrary variations in tax liability. See ante, at 216-218. As between an immediate arbitrary increase in tax liability and a deferred arbitrary decrease in benefits, I cannot say the latter is the greater inequity. The difference is at least not so stark as to cause me to regard the two regulatory schemes as different in kind, which I would insist upon before giving different meanings to identical statutory texts. In fact, however, I do not think that the text of the FICA and FUTA provisions, 26 U.S. C. §§ 3111(a), 3111(b), 3301, addresses the issue we face today. Those provisions, which direct that taxes shall be assessed against "wages paid" during the calendar year, would be controlling if the income we had before us were "wages" within the normal meaning of that term; but it is not. The question we face is whether damages awards compensating an employee for lost wages should be regarded for tax purposes as wages paid when the award is received, or rather as wages paid when they would have been paid but for the employer's unlawful actions. (The parties have stipulated that the damages awards should be regarded as taxable "wages paid" of some sort, see also Social Security Bd. v. Nierotko, supra, at 364— 370.) The proper treatment of such damages awards is an issue the statute does not address, and hence it is an issue left to the reasonable resolution of the administering agency, here the Internal Revenue Service. In Nierotko, which we decided at a time when it was common for courts to fill statutory gaps that would now be left to the agency, we provided one rule for purposes of the benefits provisions. The Internal Revenue Service has since provided another *222 rule for purposes of the tax provisions. Both rules are reasonable; neither is compelled; and neither involves a direct application of the statutory term "wages paid" which would require (or at least strongly suggest) a uniform result. I therefore concur in the Court's judgment deferring to the Government's regulations.

If I believed that the text of the tax statutes addressed the issue before us, I might well find for the respondent, giving that text the same meaning the Court found it to have in the benefits provisions of the Social Security Act. See Social Security The Court's principal reason for assigning the identical language a different meaning in the present case— *221 leaving aside statements in testimony and Committee Reports that I have no reason to believe Congress was aware of—is that tax assessments do not present the equitable considerations implicated by the potential arbitrary decrease of benefits in See ante, at 212-213. But the Court acknowledges that departing from will produce arbitrary variations in tax liability. See ante, at 216-218. As between an immediate arbitrary increase in tax liability and a deferred arbitrary decrease in benefits, I cannot say the latter is the greater inequity. The difference is at least not so stark as to cause me to regard the two regulatory schemes as different in kind, which I would insist upon before giving different meanings to identical statutory texts. In fact, however, I do not think that the text of the FICA and FUTA provisions, 26 U.S. C. 3111(a), 3111(b), 3301, addresses the issue we face today. Those provisions, which direct that taxes shall be assessed against "wages paid" during the calendar year, would be controlling if the income we had before us were "wages" within the normal meaning of that term; but it is not. The question we face is whether damages awards compensating an employee for lost wages should be regarded for tax purposes as wages paid when the award is received, or rather as wages paid when they would have been paid but for the employer's unlawful actions. (The parties have stipulated that the damages awards should be regarded as taxable "wages paid" of some sort, see also Social Security at 364—) The proper treatment of such damages awards is an issue the statute does not address, and hence it is an issue left to the reasonable resolution of the administering agency, here the Internal Revenue Service. In which we decided at a time when it was common for courts to fill statutory gaps that would now be left to the agency, we provided one rule for purposes of the benefits provisions. The Internal Revenue Service has since provided another *222 rule for purposes of the tax provisions. Both rules are reasonable; neither is compelled; and neither involves a direct application of the statutory term "wages paid" which would require (or at least strongly suggest) a uniform result. I therefore concur in the Court's judgment deferring to the Government's regulations.

Justice Ginsburg

majority

Golan v. Holder

https://www.courtlistener.com/opinion/2959739/golan-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/2959739/

2011-015

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 1886, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in §514 of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to §514’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of §514, foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in §514 ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, §8, cl. 8, and First Amendment both decree the invalidity of §514. Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 565 U. S. ____ (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 164 member states, thus enjoy copyright protection in nations across the globe. Art. 2(6), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 750 (2003).2 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” §12, 102 Stat. 2860. Protection of future foreign works, the BCIA indicated, satisfied Article 18. See §2(3), 102 Stat. 2853 (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention . . . .”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 565 U. S. ____ (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, Office of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress . . . acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 (citing Gervais, Golan v. Holder: A Look at the Con- straints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 1886–1986, p. 675 (1987) 6 GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (USTR)); id., at 208 (statement of Profes- sor Shira Perlmutter); id., at 291 (statement of Jason S. Berman, Recording Industry Association of America (RIAA)).6 —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class . . . of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to §514 of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–16. One year later, Con- gress replaced this provision with the version of 17 U.S. C. §104A at issue here. See 3 M. Nimmer & D. Nimmer, Copyright §9A.03, 9A.04, pp. 9A–17, 9A–22 (2011) (hereinafter Nimmer). 6 This tension between the United States and its new Berne counter Cite as: 565 U. S. ____ (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not . . . bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. Gervais, The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle 6bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24–8 to 24–9 (2011). The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, 108 Stat. 4976 (codified at 17 U.S. C. §104A, 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See id., at 120 (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); id., at 268 (statement of Berman, RIAA). 9 Title 17 U.S. C. §104A is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under §514. The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. §104A(h)(6)(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 565 U. S. ____ (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See §104A(h)(6)(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” §104A(h)(3). As noted above, see supra, at 3, 164 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer §7.01[A], p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 46 (1957), reprinted in 1 Studies on Copyright 229, 272 (1963). In 1976, Congress eliminated the registration renewal requirement for future works. Copyright Act of 1976, §302, 408, 90 Stat. 2572, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102 Stat. 2857. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, 106 Stat. 264–266. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. §405(b) (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); §411(a) (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under §514. Ibid.12 Copyrights “restored”13 under URAA §514 “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed . . . if the work never entered the public domain.” §104A(a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See §302(a) (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before §514’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following §514’s enact- ment. See 17 U.S. C. §104A(h)(2)(A). Concerns about §514’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. §104A(h)(6)(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under §104A previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer §9A.04[A][1][b][iii], at 9A–26, and n. 29.4. Cite as: 565 U. S. ____ (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3). B In 2001, petitioners filed this lawsuit challenging §514. They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See §104A(h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer §9A.04[C][1][a], at 9A–45 to 9A–46. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, 112 Stat. 2827, which added 20 years to the duration of existing and future copyrights. After this Court rejected a similar challenge in Eldred v. Ashcroft, 537 U.S. 186 (2003), the District Court dismissed this portion of petitioners’ suit on the plead- ings, Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The Tenth Circuit affirmed, Golan v. Gonzales, 501 F.3d 1179 (2007), and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. Golan v. Gonzales, No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” Id., at *14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” Id., at *17. The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F.3d 1179 (2007). The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, as the Court of Appeals read our decision in Eldred v. Ash- croft, 537 U.S. 186 (2003), required further First Amend- ment inspection, 501 F.3d, at 1187. The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid. (quoting Eldred, 537 U. S., at 221). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” 611 F. Supp. 2d 1165, 1170–1171 (Colo. 2009) (quot- ing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that §514 violates the substantive component of the Due Process Clause. Cite as: 565 U. S. ____ (2012) 13 Opinion of the Court court concluded, because §514’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 611 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that §514 survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. 609 F.3d 1076 (2010). We granted certiorari to consider petitioners’ challenge to §514 under both the Copyright Clause and the First Amendment, 562 U. S. ___ (2011), and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact §514. The Constitution states that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 266 (2007). Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in Eldred is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- rights. 537 U.S., at 192–193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” Ibid. (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of Eldred, petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. §302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See Eldred, 537 U.S., at 199. Indeed, as earlier noted, see supra, at 2, 10, the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 565 U. S. ____ (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection . . . sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.16 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U.S., at 198–200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copyrights. B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 16 Cf.3 Nimmer §9A.02[A][2], at 9A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the . . . work need not be resurrected.”). 16 GOLAN v. HOLDER Opinion of the Court guishes their suit from Eldred’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term extensions, 537 U.S., at 200. No comparable prac- tice, they maintain, supports §514. On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), §1, 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 . . . men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (1967) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 236; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 1786 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 617; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 563; 1786 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 236; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 565 U. S. ____ (2012) 17 Opinion of the Court 111 U.S. 53, 57 (1884).21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 1396. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver Evans’ flour mill. When Evans sued for infringement, first Chief Justice Marshall in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washington for this Court, Evans v. Jordan, 9 Cranch 199 (1815), upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [Evans’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In Wheaton v. Peters, 8 Pet. 591 (1834), the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. Id., at 657, 663. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262, 1265 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in Eldred, “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 537 U.S., at 201. 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. Id., at 202. See also Blanchard v. Sprague, 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which . . . was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. Id., at 206–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See supra, at 9, and n. 11. Cite as: 565 U. S. ____ (2012) 19 Opinion of the Court 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24 Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Id., at 6; post, at 15. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., at 202, n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 7–8; cf. Eldred, 537 U.S., at 259, 264–265 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. id., at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see supra, at 13–14, is ever and always impermissible. Accord Luck’s Music Library, 407 F.3d, at 1265–1266 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by §514—“would necessarily have already entered the public domain . . . .”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, §8, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, 383 U.S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of . . . new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because §514 deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ . . . because it does not stimulate the creation of new works.” 537 U.S., at 211–212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U.S., at 208, n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 565 U. S. ____ (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205–206 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Perlmutter, Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 332 (2002))).26 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” Id., at 324, n. 5 (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, 6 Green Bag 2d 37, 44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 26 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, contra supra, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also Eldred, 537 U.S., at 206.27 Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 565 U. S. ____ (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by §514. To do so, we first recapitulate the relevant part of our pathmarking decision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in Eldred, offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U.S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–6, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with . . . America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Ibid. (quoting Harper & Row, 471 U.S., at 558 (internal quotation marks omit- ted)); see id., at 546 (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 560 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. §102(b): “In no case does copyright protec[t] . . . any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 556 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in Eldred to “traditional contours of copyright.” 501 F.3d, at 1187–1196. That reading was incorrect, as we here clarify. Cite as: 565 U. S. ____ (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. §107: “[T]he fair use of a copyright- ed work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U.S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholar- ship and comment, . . . even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see id., at 219, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before §514 took effect. See supra, at 10–11 (describing 17 U.S. C. §104A(c), (d), and (h)). See also Eldred, 537 U.S., at 220 (describing supplemental allowances and exemp- —————— 30 See Eldred, 537 U.S., at 221 (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 26 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in Eldred. First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in Eldred— enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before §514’s enactment. Nor, petitioners urge, does §514’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Eldred. Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see supra, at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” 501 F.3d, at 1184. And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 565 U. S. ____ (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in Eldred, we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in Eldred, who never “possessed unfettered access to any of the works at issue.” 501 F.3d, at 1193. See also id., at 1194 (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] §514’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners 44–45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966), noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See supra, at 19. The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479–484 (1974), and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. §201(a) (“Copyright in a work protected . . . vests initially in the author . . . .”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which . . . have not yet fallen into the public do- main . . . .”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, §13, 26 Stat. 1110; to dramatic works in 1856, Act of Aug. 18, 11 Stat. 138; to photographs and photographic negatives in 1865, Act of Mar. 3, §1, 13 Stat. 540; to mo- tion pictures in 1912, Act of Aug. 24, 37 Stat. 488; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, 104 Stat. 5133. And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See supra, at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 565 U. S. ____ (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or . . . the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 46– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.” Id., at 47.34 But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at 121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (state- ment of Shapiro, USTR); id., at 145 (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by §514, see supra, at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Office, Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 406, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; §514 gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Office, Report on Orphan Works 21–40 (2006). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under §514. It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by §514 got there after a term of zero or a term cut short by failure to observe U. S. formalities. See supra, at 9. Cite as: 565 U. S. ____ (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright Office, supra, at 41–44 (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 1976 Copyright Act).36 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–678 (SDNY 2011) (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing Eldred, 537 U.S., at 212)). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, at 678 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, §77 (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Office, Legal Issues in Mass Digitization 25–29 (2011) (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 36 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 565 U. S. ____ (2012) 33 Opinion Appendix of the of to opinion Court the Court APPENDIX Title 17 U.S. C. §104A provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 565 U. S. ____ (2012) 35 Opinion Appendix of the of to opinion Court the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 36 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 565 U. S. ____ (2012) 37 Opinion Appendix of the of to opinion Court the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information Office of the Copyright Office and shall be available for public inspection and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 565 U. S. ____ (2012) 39 Opinion Appendix of the of to opinion Court the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “(6) The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 565 U. S. ____ (2012) 41 Opinion Appendix of the of to opinion Court the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 565 U. S. ____ (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–545 _________________ LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 188, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to ’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, cl. 8, and First Amendment both decree the invalidity of Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 55 U. S. (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 188, as revised at Stockholm on July 14, 197, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 14 member states, thus enjoy copyright protection in nations across the globe. Art. 2(), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, 13, 2 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 7502 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–09, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” Protection of future foreign works, the BCIA indicated, satisfied Article 18. See (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 22, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 55 U. S. (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 ); (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 188–198, p. 75 (1987) GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 18 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (USTR)); (statement of Profes- sor Shira ); (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, ; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–1. One year later, Con- gress replaced this provision with the version of 17 U.S. C. at issue here. See 3 M. Nimmer & D. Nimmer, Copyright 9A.04, pp. 9A–17, 9A–22 (hereinafter Nimmer). This tension between the United States and its new Berne counter Cite as: 55 U. S. (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 1, 172 (199). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 187 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See ; 7 W. Patry, Copyright pp. 24–8 to 24–9 The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, (codified at 17 U.S. C. 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); (statement of Berman, RIAA). 9 Title 17 U.S. C. is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. (h)()(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 55 U. S. (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See (h)()(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” (h)(3). As noted above, see at 3, 14 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 4 (19), reprinted in 1 Studies on Copyright 229, 272 (193). In 197, Congress eliminated the registration renewal requirement for future works. Copyright Act of 197, 408, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA 102 Stat. 28. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, –2. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under 12 Copyrights “restored”13 under URAA “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed if the work never entered the public domain.” (a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before ’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following ’s enact- ment. See 17 U.S. C. (h)(2)(A). Concerns about ’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. (h)()(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer A–2, and n. 29.4. Cite as: 55 U. S. (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See (h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright within two years of restoration, or by actually notifying the reliance party. (c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. (d)(3). B In 2001, petitioners filed this lawsuit challenging They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See (h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer A–45 to 9A–4. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, which added 20 years to the duration of existing and future copy After this Court rejected a similar challenge in the District Court dismissed this portion of petitioners’ suit on the plead- ings, The Tenth Circuit affirmed, and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” The Court of Appeals for the Tenth Circuit affirmed in part. The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” at 1187 (internal quotations marks omitted). But as the Court of Appeals read our decision in required further First Amend- ment The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. (quoting ). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” (quot- ing (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that violates the substantive component of the Due Process Clause. Cite as: 55 U. S. (2012) 13 Opinion of the Court court concluded, because ’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 11 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. We granted certiorari to consider petitioners’ challenge to under both the Copyright Clause and the First Amendment, 52 U. S. and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact The Constitution states that “Congress shall have Power [t]o promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 2 Petitioners’ ry argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in and is similarly infirm. The terms afforded works restored by are no less “limited” than those the CTEA lengthened. In light of petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See 537 U.S., Indeed, as earlier noted, see the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 55 U. S. (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.1 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See –200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copy B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 1 Cf.3 Nimmer A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the work need not be resurrected.”). 1 GOLAN v. HOLDER Opinion of the Court guishes their suit from ’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term No comparable prac- tice, they maintain, supports On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (197) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 23; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 178 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 17; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 53; 178 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 23; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 55 U. S. (2012) 17 Opinion of the Court21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 9 Stat. 73; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 18; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 139. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver ’ flour mill. When sued for infringement, first Chief Justice Marshall in the Circuit Court, (No. 4,54) (Va. 1813), and then Justice Bushrod Washington for this Court, upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. 3. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Inc. v. Gonzales, 407 F.3d 122, 125 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. See also Blanchard v. Sprague, 3 F. Cas. 48, 50 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. at 20–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See and n. 11. Cite as: 55 U. S. (2012) 19 Opinion of the Court ; Act of Sept. 25, 1941, ch. 421,24 Pointing to dictum in petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ; post, at 15. But as we explained in this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See at 7–8; cf. 24–25 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see at 13–14, is ever and always impermissible. Accord Luck’s Music –12 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by —“would necessarily have already entered the public domain”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, and n. 1; (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In we rejected an argument nearly identical to the one petitioners rehearse. The petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ because it does not stimulate the creation of new works.” –212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); 537 U.S., n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 55 U. S. (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. See at 205–20 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 3 Loyola (LA) L. Rev. 323, 332 )).2 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 197, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 2 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also27 Considered against this backdrop, falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor ). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); at 2, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 55 U. S. (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by To do so, we first recapitulate the relevant part of our pathmarking decision in The petitioners in like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 2 Colum. J. L. & Arts 17, 59 (cautioning against “an isolationist reading of the Copyright Clause that is in tension with America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (quoting Harper & (internal quotation marks omit- ted)); see (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” ; see Harper & 471 U.S., at 50 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. “In no case does copyright protec[t] any idea, procedure, process, system, method of operation, concept, principle, or discovery described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. ; see Harper & 471 U.S., at 55 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in to “traditional contours of copyright.” –119. That reading was incorrect, as we here clarify. Cite as: 55 U. S. (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. “[T]he fair use of a copyright- ed work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” ; see (“fair use defense affords considerable latitude for scholar- ship and comment, even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see we concluded in that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before took effect. See at 10–11 (describing 17 U.S. C. (c), (d), and (h)). See also 537 U.S., (describing supplemental allowances and exemp- —————— 30 See (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 2 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before ’s enactment. Nor, petitioners urge, does ’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 55 U. S. (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in who never “possessed unfettered access to any of the works at issue.” See also (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] ’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners –45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil 41 U.S. 470, and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 49, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. (“Copyright in a work protected vests initially in the author”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which have not yet fallen into the public do- main”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, 2 Stat. 1110; to dramatic works in 185, Act of Aug. 18, ; to photographs and photographic negatives in 185, Act of Mar. 3, ; to mo- tion pictures in 1912, Act of Aug. 24, ; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 55 U. S. (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 4– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.”34 But Congress has not put petitioners in this bind. The question here, as in is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); at 121 (app. to statement of Lehman, Commerce Dept.); (state- ment of Shapiro, USTR); (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by see at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 40, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Report on Orphan Works 21–40 (200). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by got there after a term of zero or a term cut short by failure to observe U. S. formalities. See Cite as: 55 U. S. (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright at 41– (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 197 Copyright Act).3 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors 770 F. Supp. 2d 77–78 (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing )). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, 78 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Legal Issues in Mass Digitization 25–29 (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 3 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 55 U. S. (2012) 33 Opinion Appendix of the of to opinion Court the Court APPENDIX Title 17 U.S. C. provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 55 U. S. (2012) 35 Opinion Appendix of the of to opinion Court the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 3 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 55 U. S. (2012) 37 Opinion Appendix of the of to opinion Court the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information of the Copyright and shall be available for public and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 10 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 55 U. S. (2012) 39 Opinion Appendix of the of to opinion Court the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 199, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 10 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “() The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 55 U. S. (2012) 41 Opinion Appendix of the of to opinion Court the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 55 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–545 LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

Justice White

majority

Alfred Dunhill of London, Inc. v. Republic of Cuba

https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/

https://www.courtlistener.com/api/rest/v3/clusters/109448/

1975-096

[†] The issue in this case is whether the failure of respondents to return to petitioner Alfred Dunhill of London, Inc. (Dunhill), funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses was an "act of state" by Cuba precluding an affirmative judgment against respondents. I The rather involved factual and legal context in which this litigation arises is fully set out in the District Court's *685 opinion in this case, Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp. 527 (SDNY 1972), and in closely related litigation, F. Palicio y Compania, S. A. v. Brush, 256 F. Supp. 481 (SDNY 1966), aff'd, 375 F.2d 1011 (CA2), cert. denied, 389 U.S. 830 (1967). For present purposes, the following recitation will suffice. In 1960, the Cuban Government confiscated the business and assets of the five leading manufacturers of Havana cigars. These companies, three corporations and two partnerships, were organized under Cuban law. Virtually all of their owners were Cuban nationals. None were American. These companies sold large quantities of cigars to customers in other countries, including the United States, where the three principal importers were Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg, Inc. (Faber). The Cuban Government named "interventors" to take possession of and operate the business of the seized Cuban concerns. Interventors continued to ship cigars to foreign purchasers, including the United States importers. This litigation began when the former owners of the Cuban companies, most of whom had fled to the United States, brought various actions against the three American importers for trademark infringement and for the purchase price of any cigars that had been shipped to importers from the seized Cuban plants and that bore United States trademarks claimed by the former owners to be their property. Following the conclusion of the related litigation in F. Palicio y Compania, S. A. v. Brush, supra,[1] the Cuban interventors[2] and the Republic *686 of Cuba were allowed to intervene in these actions, which were consolidated for trial. Both the former owners and the interventors had asserted their right to some $700,000 due from the three importers for postintervention shipments: Faber, $582,588.86; Dunhill, $92,949.70; and Saks, $24,250. It also developed that as of the date of intervention, the three importers owed sums totaling $477,200 for cigars shipped prior to intervention: Faber, $322,000; Dunhill, $148,600; and Saks, $6,600. These latter sums the importers had paid to interventors subsequent to intervention on the assumption that interventors were entitled to collect the accounts receivable of the intervened businesses. The former owners claimed title to and demanded payment of these accounts. Based on the "act of state" doctrine which had been reaffirmed in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the District Court held in F. Palicio y Compania, S. A. v. Brush, supra, and here, that it was required to give full legal effect to the 1960 confiscation of the five cigar companies insofar as it purported to take the property of Cuban nationals located within Cuba. Interventors were accordingly entitled to collect from the importers all amounts due and unpaid with respect to shipments made after the date of intervention. The contrary conclusion was reached as to the accounts owing at the time of intervention: Because the United States *687 courts will not give effect to foreign government confiscations without compensation of property located in the United States and because under Republic of Iraq v. First Nat. City Bank, 353 F.2d 47 (CA2 1965), cert. denied, 382 U.S. 1027 (1966), the situs of the accounts receivable was with the importer-debtors, the 1960 seizures did not reach the preintervention accounts, and the former owners, rather than the interventors, were entitled to collect them from the importers—even though the latter had already paid them to interventors in the mistaken belief that they were fully discharging trade debts in the ordinary course of their business. This conclusion brought to the fore the importers' claim that their payment of the preintervention accounts had been made in error and that they were entitled to recover these payments from interventors by way of setoff and counterclaim. Although their position that the 1960 confiscation entitled them to the sums due for preintervention sales had been rejected and the District Court had ruled that they "had no right to receive or retain such payment,"[3] interventors claimed those payments on the additional ground that the obligation, if any, to repay was a quasi-contractual debt having a situs in Cuba and that their refusal to honor the obligation was an act of state not subject to question in our courts. The District Court rejected this position for two reasons. First, the repayment obligated was more properly deemed situated in the United States and hence remained unaffected by any purported confiscatory act of the Cuban Government. Second, in the District Court's *688 view, nothing had occurred which qualified for recognition as an act of state: "[T]here was no formal repudiation of these obligations by Cuban Government decree of general application or otherwise. . . . Here, all that occurred was a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment. This statement was made after the interventors had invoked the jurisdiction of this Court in order to pursue their claims against the importers for post-intervention shipments. It is hard to conceive how, if such a statement can be elevated to the status of an act of state, any refusal by any state to honor any obligation at any time could be considered anything else." 345 F. Supp., at 545. The importers were accordingly held entitled to set off their mistaken payments to interventors for preintervention shipments against the amounts due from them for their post-intervention purchases. Faber and Saks, because they owed more than interventors were obligated to return to them, were satisfied completely by the right to setoff. But Dunhill—and at last we arrive at the issue in this case—was entitled to more from interventors —$148,000—than it owed for postintervention shipments—$93,000—and to be made whole, asked for and was granted judgment against interventors for the full amount of its claim, from which would be deducted the smaller judgment entered against it. The Court of Appeals, Menendez v. Saks & Co., 485 F.2d 1355 (CA2 1973), agreed that the former owners were entitled to recover from the importers the full amount of preintervention accounts receivable. It also held that the mistaken payments by importers to interventors *689 gave rise to a quasi-contractual obligation to repay these sums. But, contrary to the District Court, the Court of Appeals was of the view that the obligation to repay had a situs in Cuba and had been repudiated in the course of litigation by conduct that was sufficiently official to be deemed an act of state: "[I]n the absence of evidence that the interventors were not acting within the scope of their authority as agents of the Cuban government, their repudiation was an act of state even though not embodied in a formal decree."[4]Id., at 1371. Although the repudiation of the interventors' obligation was considered an act of state, the Court of Appeals went on to hold that First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), entitled importers to recover the sums due them from interventors by way of setoff against the amounts due from them for postintervention shipments. The act of state doctrine was said to bar the affirmative judgment awarded Dunhill to the extent that its claim exceeded its debt. The judgment of the District Court was reversed in this respect, and it is this action which was the subject of the petition for certiorari filed by Dunhill. In granting the petition, 416 U.S. 981 (1974), we requested the parties to address certain questions,[5] the first being whether the statement by *690 counsel for the Republic of Cuba that Dunhill's unjust-enrichment claim would not be honored constituted an act of state. The case was argued twice in this Court. We have now concluded that nothing in the record reveals an act of state with respect to interventors' obligation to return monies mistakenly paid to them. Accordingly we reverse the judgment of the Court of Appeals. II The District Court and the Court of Appeals held that for purposes of this litigation interventors were not entitled to the preintervention accounts receivable by virtue of the 1960 confiscation and that, despite other arguments to the contrary, nothing based on their claim to those accounts entitled interventors to retain monies mistakenly paid on those accounts by importers. We do not disturb these conclusions.[6] The Court of Appeals nevertheless observed that interventors had "ignored" demands for the return of the monies and had "fail[ed] *691 to honor the importers' demand (which was confirmed by the Cuban government's counsel at trial)." This conduct was considered to be "the Cuban government's repudiation of its obligation to return the funds" and to constitute an act of state not subject to question in our courts.[7]Menendez v. Saks & Co., 485 F. 2d, at 1369, 1371. We cannot agree. If interventors, having had their liability adjudicated and various defenses rejected, including the claimed act of state, with respect to preintervention accounts, represented by the Cuban confiscation in 1960, were nevertheless to escape repayment by claiming a second and later act of state involving the funds mistakenly paid them, it was their burden to prove that act. Concededly, they declined to pay over the funds; but refusal to repay does not necessarily assert anything more than what interventors had claimed from the outset and what they have continued to claim in this Court—that the preintervention accounts receivable were theirs and that they had no obligation to return payments on those accounts.[8] Neither does it demonstrate that in addition *692 to authority to operate commercial businesses, to pay their bills and to collect their accounts receivable, interventors had been invested with sovereign authority to *693 repudiate all or any part of the debts incurred by those businesses. Indeed, it is difficult to believe that they had the power selectively to refuse payment of legitimate debts arising from the operation of those commercial enterprises. In The "Gul Djemal," 264 U.S. 90 (1924), a supplier libeled and caused the arrest of the Gul Djemal, a steamship owned and operated for commercial purposes by the Turkish Government, in an effort to recover for supplies and services sold to and performed for the ship. The ship's master, "a duly commissioned officer of the Turkish Navy," id., at 94-95, appeared in court and asserted sovereign immunity, claiming that such an assertion defeated the court's jurisdiction. A direct appeal was taken to this Court, where it was held that the master's assertion of sovereign immunity was insufficient because his mere representation of his government as master of a commercial ship furnished no basis for assuming he was entitled to represent the sovereign in other capacities.[9] Here there is no more reason to suppose that the interventors possess governmental, as opposed to commercial, authority than there was to suppose that the master of the Gul Djemal possessed such authority. The master of the Gul Djemal claimed the authority to assert sovereign immunity while the interventors claim that they *694 had the authority to commit an act of state, but the difference is unimportant. In both cases, a party claimed to have had the authority to exercise sovereign power. In both, the only authority shown is commercial authority. We thus disagree with the Court of Appeals that the mere refusal of the interventors to repay funds followed by a failure to prove that interventors "were not acting within the scope of their authority as agents of the Cuban government" satisfied respondents' burden of establishing their act of state defense. Menendez v. Saks & Co., 485 F. 2d, at 1371. Nor do we consider Underhill v. Hernandez, 168 U.S. 250 (1897), heavily relied upon by the Court of Appeals, to require a contrary conclusion.[10] In that case and in Oetjen v. Central Leather Co., 246 U.S. 297 (1918), and Ricaud v. American Metal Co., 246 U.S. 304 (1918), it was apparently concluded that the facts were sufficient to demonstrate that the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts. We draw no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was "a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment." Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp., at 545. But this merely restated respondents' *695 original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers. III If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors' adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to included the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals. Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904, 907 (1824): "It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with *696 whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." Cf. Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 567-568 (1922). In this same tradition, South Carolina v. United States, 199 U.S. 437 (1905), drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in Ohio v. Helvering, 292 U.S. 360, 369 (1934), the Court said: "If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function . . . . When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader . . . ." It is thus a familiar concept that "there is a constitutional line between the State as government and the State as trader . . . ." New York v. United States, 326 U.S. 572, 579 (1946). See also Parden v. Terminal R. Co., 377 U.S. 184, 189-190 (1964); California v. Taylor, 353 U.S. 553, 564 (1957); United States v. California, 297 U.S. 175, 183 (1936). It is the position of the United States, stated in an amicus brief filed by the Solicitor General, that such a line should be drawn in defining the outer limits of the act of state concept and that repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state beyond legal question in our courts. Attached to the brief of the United States and to this opinion as Appendix 1 is the letter of November 26, 1975, in which the Department of State, speaking through its Legal Adviser agrees with the brief filed by the Solicitor General and, more specifically, declares that *697 "we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial,[11] and not public, in nature."[12] The major underpinning of the act of state doctrine is the policy of foreclosing court adjudications involving the legality of acts of foreign states on their own soil that might embarrass the Executive Branch of our Government in the conduct of our foreign relations. Banco Nacional de Cuba v. Sabbatino, 376 U. S., at 427-428, 431-433. But based on the presently expressed views of those who conduct our relations with foreign countries, we are in no sense compelled to recognize as *698 an act of state the purely commercial conduct of foreign governments in order to avoid embarrassing conflicts with the Executive Branch. On the contrary, for the reasons to which we now turn, we fear that embarrassment and conflict would more likely ensue if we were to require that the repudiation of a foreign government's debts arising from its operation of a purely commercial business be recognized as an act of state and immunized from question in our courts. Although it had other views in years gone by, in 1952, as evidenced by Appendix 2 (the Tate letter) attached to this opinion, the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state's public or governmental actions and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our Government since that time as the attached letter of November 26, 1975, confirms: "Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity." Repudiation of a commercial debt cannot, consistent with this restrictive approach to sovereign immunity, be treated as an act of state; for if it were, foreign governments, *699 by merely repudiating the debt before or after its adjudication, would enjoy an immunity which our Government would not extend them under prevailing sovereign immunity principles in this country. This would undermine the policy supporting the restrictive view of immunity, which is to assure those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible. Although at one time this Court ordered sovereign immunity extended to a commercial vessel of a foreign country absent a suggestion of immunity from the Executive Branch and although the policy of the United States with respect to its own merchant ships was then otherwise, Berizzi Bros. Co. v. S. S. Pesaro, 271 U.S. 562 (1926), the authority of that case has been severely diminished by later cases such as Ex parte Peru, 318 U.S. 578 (1943), and Mexico v. Hoffman, 324 U.S. 30 (1945). In the latter case the Court unanimously denied immunity to a commercial ship owned but not possessed by the Mexican Government. The decision rested on the fact that the Mexican Government was not in possession, but the Court declared, id., at 35-36: "Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. `In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.' United States v. Lee, supra, 209; Ex parte Peru, supra, 588. "It is therefore not for the courts to deny an *700 immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize. The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte Peru, supra, 588. But recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of our national interests and their recognition by other nations." (Footnote omitted.) In a footnote the Court expressly questioned the Berizzi Bros. holding,[13] and two concurring Justices asserted that the Court had effectively overruled that case.[14] *701 Since that time, as we have said, the United States has adopted and adhered to the policy declining to extend sovereign immunity to the commercial dealings of *702 foreign governments. It has based that policy in part on the fact that this approach has been accepted by a large and increasing number of foreign states in the international community;[15] in part on the fact that the United States had already adopted a policy of consenting to be sued in foreign courts in connection with suits against its merchant vessels; and in part because the enormous increase in the extent to which foreign sovereigns had become involved in international trade made essential "a practice which will enable persons doing business with them to have their rights determined in the courts." Appendix 2 to this opinion, infra, at 714. In the last 20 years, lower courts have concluded, in *703 light of this Court's decisions in Ex parte Peru, supra, and Mexico v. Hoffman, supra, and from the Tate letter and the changed international environment, that Berizzi Bros. Co. v. S. S. Pesaro, supra, no longer correctly states the law; and they have declined to extend sovereign immunity to foreign sovereigns in cases arising out of purely commercial transactions. Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (CA2 1964), cert. denied, 381 U.S. 934 (1965); Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (CA2), cert. denied, 385 U.S. 931 (1966); Premier S. S. Co. v. Embassy of Algeria, 336 F. Supp. 507 (SDNY 1971); Ocean Transport Co. v. Government of Republic of Ivory Coast, 269 F. Supp. 703 (ED La. 1967); ADM Milling Co. v. Republic of Bolivia, Civ. Action No. 75-946 (DC Aug. 8, 1975); Et Ve Balik Kurumu v. B. N. S. Int'l Sales Corp., 25 Misc. 2d 299, 304 N. Y. S. 2d 971 (1960); Harris & Co. Advtg., Inc. v. Republic of Cuba, 127 So. 2d 687 (Fla. Ct. App. 1961). Indeed, it is fair to say that the "restrictive theory" of sovereign immunity appears to be generally accepted as the prevailing law in this country. ALI, Restatement (Second), Foreign Relations Law of the United States, § 69 (1965). Participation by foreign sovereigns in the international commercial market has increased substantially in recent years. Cf. International Economic Report of the President 56 (1975). The potential injury to private businessmen —and ultimately to international trade itself— from a system in which some of the participants in the international market are not subject to the rule of law has therefore increased correspondingly. As noted above, courts of other countries have also recently adopted the restrictive theory of sovereign immunity. Of equal importance is the fact that subjecting foreign governments to the rule of law in their commercial dealings presents a much smaller risk of affronting their sovereignty than *704 would an attempt to pass on the legality of their governmental acts.[16] In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens. Subjecting them in connection with such acts to the same rules of law that apply to private citizens is unlikely to touch very sharply on "national nerves." Moreover, as this Court has noted: "[T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice." Banco Nacional de Cuba v. Sabbatino, 376 U. S., at 428. See also id., at 430 n. 34. There may be little codification or consensus as to the rules of international law concerning exercises of governmental powers, including military powers and expropriations, within a sovereign state's borders affecting the property or persons of aliens. However, more discernible rules of international law have emerged with regard to the commercial dealings of private parties in the international market.[17] The restrictive *705 approach to sovereign immunity suggests that these established rules should be applied to the commercial transactions of sovereign states. Of course, sovereign immunity has not been pleaded in this case; but it is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments. Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective if given the label "Act of State" than if it is given the label "sovereign immunity."[18]*706 In describing the act of state doctrine in the past we have said that it "precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory." Banco Nacional de Cuba v. Sabbatino, supra, at 401 (emphasis added), and that it applies to "acts done within their own States, in the exercise of governmental authority." Underhill v. Hernandez, 168 U. S., at 252 (emphasis added). We decline to extend the act of state doctrine to acts committed by foreign sovereigns in the course of their purely commercial operations. Because the act relied on by respondents in this case was an act arising out of the conduct by Cuba's agents in the operation of cigar businesses for profit, the act was not an act of state. Reversed. APPENDIX 1 TO OPINION OF THE COURT THE LEGAL ADVISER, DEPARTMENT OF STATE, Washington, November 26, 1975. DEAR MR. SOLICITOR GENERAL: In the case of Alfred Dunhill of London, Inc. v. The *707 Republic of Cuba, which is before the Supreme Court on petition for a writ of certiorari, No. 73-1288, the Court has requested the parties to discuss whether its holding in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, should be reconsidered. The Department of State believes that the question of whether the Sabbatino case should be reconsidered involves matters of importance to the foreign policy interests of the United States and requests that its views be conveyed to the Supreme Court. The views expressed herein are in addition to the arguments presented in the brief amicus curiae which the United States is filing in the Dunhill case. As urged in that brief, we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial, and not public, in nature. Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity. In the event, however, that the Court reaches the question whether the Sabbatino holding should be reconsidered, we believe that the following considerations should be called to the Court's attention: Since Sabbatino was decided in 1964, the Department of State has on two occasions expressed to courts in the United States its views concerning act of state adjudications. First, in the Sabbatino case itself, on remand, the Executive Branch declined to make a determination under the Hickenlooper Amendment, 22 U.S. C. 2370 (e) (2), "that application of the act of state doctrine is required in this case by the foreign policy *708 interests of the United States." Banco Nacional de Cuba v. Farr, 272 F. Supp. 836, 837 (S. D. N. Y.), aff'd, 383 F.2d 166 (C. A. 2), certiorari denied, 390 U.S. 956. Having taken note of the Executive Branch's position, the district court in Farr applied the Hicken-looper Amendment and held that a Cuban decree of confiscation violated customary international law. 272 F. Supp., at 838. Second, in First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, the Department of State informed the Supreme Court that general foreign relations considerations did not require application of the act of state doctrine to bar adjudication of a counterclaim when the foreign state's claim arises from a relationship between the parties existing when the act of state occurred, and when the amount of relief to be granted is limited to the amount of the foreign state's claim.[1] Relying on the precedent of Bernstein v. N. V. Nederlandsche Amerikaanshe, Etc., 210 F.2d 375 (C. A. 2), where the Department had advised that the act of state doctrine need not apply to a class of cases involving Nazi confiscations, the Department in First National City Bank concluded that the act of state doctrine need not be applied "in this or like cases." *709 Significantly, the Farr, Bernstein and First National City Bank cases each involved an Executive Branch determination which opened the way for U. S. courts to review an act of state on the merits under international law. In each of these cases, the claim or counterclaim in question alleged that an act of state violated customary international law. Thus, at least on a case-by-case basis, the trend in Executive Branch pronouncements has been that foreign relations considerations do not require application of the act of state doctrine to bar adjudications under international law. This trend is mirrored in other countries. Apart from the cases cited by Mr. Justice White in Sabbatino, 376 U. S., at 440 n. 1, there have been several recent decisions where foreign courts have reviewed state acts under international law.[2] English law, from *710 which our act of state doctrine derives, does not require British courts to abstain from reviewing state acts under international law.[3] As far as can be determined, this exercise of the judicial function in foreign jurisdictions has not caused serious foreign relations consequences for the countries concerned. The present case is similar to Bernstein, Farr and First National City Bank. This Department is of the opinion that there would be no embarrassment to the conduct of foreign policy if the Court should decide in this case to adjudicate the legality of any act of state found to have taken place and to make such adjudication in accordance with any principle of international law found to be relevant. In general this Department's experience provides little support for a presumption that adjudication of acts of foreign states in accordance with relevant principles of international law would embarrass the conduct of foreign policy. Thus, it is our view that if the Court should decide to overrule the holding in Sabbatino so that acts of state would thereafter be subject to adjudication in American courts under international law, we would not anticipate embarrassment *711 to the conduct of the foreign policy of the United States. Sincerely, MONROE LEIGH. APPENDIX 2 TO OPINION OF THE COURT[*] May 19, 1952. MY DEAR MR. ATTORNEY GENERAL: The Department of State has for some time had under consideration the question whether the practice of the Government in granting immunity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the obvious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department's decision. A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agreement by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property excepted) or with respect to the disposition of the *712 property of a deceased person even though a foreign sovereign is the beneficiary. The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland. The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sufficient on which to base a conclusion. The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restrictive theory of immunity if and when the occasion presents itself. A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory. The German courts, after a period of hesitation at the end of the nineteenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive *713 theory since that time the German courts might take a different view today. The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20's to embrace the restrictive theory. Rumania, Peru, and possibly Denmark also appear to follow this theory. Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favoring the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the law. Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory. Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which immunity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming immunity for its public owned or operated merchant vessels. Keeping in mind the importance played by cases involving public vessels in the field of sovereign immunity, it is thus noteworthy that these ten countries (Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Poland, Portugal, Sweden) and the United States have already relinquished by treaty or in practice an important part of the immunity which they claim under the classical theory. *714 It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. There are evidences that British authorities are aware of its deficiencies and ready for a change. The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity. It is realized that a shift in policy by the executive cannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so. There have been indications that at least some Justices of the Supreme Court feel that in this matter courts should follow the branch of the Government charged with responsibility for the conduct of foreign relations. In order that your Department, which is charged with representing the interests of the Government before the courts, may be adequately informed it will be the Department's practice to advise you of all requests by foreign *715 governments for the grant of immunity from suit and of the Department's action thereon. Sincerely yours, For the Secretary of State: JACK B. TATE Acting Legal Adviser MR.

[†] The issue in this case is whether the failure of respondents to return to petitioner Alfred Dunhill of London, (Dunhill), funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses was an "act of state" by Cuba precluding an affirmative judgment against respondents. I The rather involved factual and legal context in which this litigation arises is fully set out in the District Court's *685 opinion in this case, and in closely related litigation, F. Palicio y Compania, S. aff'd, (CA2), cert. denied, For present purposes, the following recitation will suffice. In the Cuban Government confiscated the business and assets of the five leading manufacturers of Havana cigars. These companies, three corporations and two partnerships, were organized under Cuban Virtually all of their owners were Cuban nationals. None were American. These companies sold large quantities of cigars to customers in other countries, including the United States, where the three principal importers were Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg, (Faber). The Cuban Government named "interventors" to take possession of and operate the business of the seized Cuban concerns. Interventors continued to ship cigars to foreign purchasers, including the United States importers. This litigation began when the former owners of the Cuban companies, most of whom had fled to the United States, brought various actions against the three American importers for trademark infringement and for the purchase price of any cigars that had been shipped to importers from the seized Cuban plants and that bore United States trademarks claimed by the former owners to be their property. Following the conclusion of the related litigation in F. Palicio y Compania, S. [1] the Cuban interventors[2] and the Republic *686 of Cuba were allowed to intervene in these actions, which were consolidated for trial. Both the former owners and the interventors had asserted their right to some $700,000 due from the three importers for postintervention shipments: Faber, $582,.86; Dunhill, $92,949.70; and Saks, $24,250. It also developed that as of the date of intervention, the three importers owed sums totaling $477,200 for cigars shipped prior to intervention: Faber, $322,000; Dunhill, $148,600; and Saks, $6,600. These latter sums the importers had paid to interventors subsequent to intervention on the assumption that interventors were entitled to collect the accounts receivable of the intervened businesses. The former owners claimed title to and demanded payment of these accounts. Based on the "act of state" doctrine which had been reaffirmed in Banco Nacional de the District Court held in F. Palicio y Compania, S. and here, that it was required to give full legal effect to the confiscation of the five cigar companies insofar as it purported to take the property of Cuban nationals located within Cuba. Interventors were accordingly entitled to collect from the importers all amounts due and unpaid with respect to shipments made after the date of intervention. The contrary conclusion was reached as to the accounts owing at the time of intervention: Because the United States *687 courts will not give effect to foreign government confiscations without compensation of property located in the United States and because under Republic of cert. denied, the situs of the accounts receivable was with the importer-debtors, the seizures did not reach the preintervention accounts, and the former owners, rather than the interventors, were entitled to collect them from the importers—even though the latter had already paid them to interventors in the mistaken belief that they were fully discharging trade debts in the ordinary course of their business. This conclusion brought to the fore the importers' claim that their payment of the preintervention accounts had been made in error and that they were entitled to recover these payments from interventors by way of setoff and counterclaim. Although their position that the confiscation entitled them to the sums due for preintervention sales had been rejected and the District Court had ruled that they "had no right to receive or retain such payment,"[3] interventors claimed those payments on the additional ground that the obligation, if any, to repay was a quasi-contractual debt having a situs in Cuba and that their refusal to honor the obligation was an act of state not subject to question in our courts. The District Court rejected this position for two reasons. First, the repayment obligated was more properly deemed situated in the United States and hence remained unaffected by any purported confiscatory act of the Cuban Government. Second, in the District Court's *688 view, nothing had occurred which qualified for recognition as an act of state: "[T]here was no formal repudiation of these obligations by Cuban Government decree of general application or otherwise. Here, all that occurred was a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment. This statement was made after the interventors had invoked the jurisdiction of this Court in order to pursue their claims against the importers for post-intervention shipments. It is hard to conceive how, if such a statement can be elevated to the status of an act of state, any refusal by any state to honor any obligation at any time could be considered anything else." The importers were accordingly held entitled to set off their mistaken payments to interventors for preintervention shipments against the amounts due from them for their post-intervention purchases. Faber and Saks, because they owed more than interventors were obligated to return to them, were satisfied completely by the right to setoff. But Dunhill—and at last we arrive at the issue in this case—was entitled to more from interventors —$148,000—than it owed for postintervention shipments—$93,000—and to be made whole, asked for and was granted judgment against interventors for the full amount of its claim, from which would be deducted the smaller judgment entered against it. The Court of Appeals, agreed that the former owners were entitled to recover from the importers the full amount of preintervention accounts receivable. It also held that the mistaken payments by importers to interventors *689 gave rise to a quasi-contractual obligation to repay these sums. But, contrary to the District Court, the Court of Appeals was of the view that the obligation to repay had a situs in Cuba and had been repudiated in the course of litigation by conduct that was sufficiently official to be deemed an act of state: "[I]n the absence of evidence that the interventors were not acting within the scope of their authority as agents of the Cuban government, their repudiation was an act of state even though not embodied in a formal decree."[4]Id., at 1371. Although the repudiation of the interventors' obligation was considered an act of state, the Court of Appeals went on to hold that First Nat. City entitled importers to recover the sums due them from interventors by way of setoff against the amounts due from them for postintervention shipments. The act of state doctrine was said to bar the affirmative judgment awarded Dunhill to the extent that its claim exceeded its debt. The judgment of the District Court was reversed in this respect, and it is this action which was the subject of the petition for certiorari filed by Dunhill. In granting the petition, we requested the parties to address certain questions,[5] the first being whether the statement by *690 counsel for the Republic of Cuba that Dunhill's unjust-enrichment claim would not be honored constituted an act of state. The case was argued twice in this Court. We have now concluded that nothing in the record reveals an act of state with respect to interventors' obligation to return monies mistakenly paid to them. Accordingly we reverse the judgment of the Court of Appeals. II The District Court and the Court of Appeals held that for purposes of this litigation interventors were not entitled to the preintervention accounts receivable by virtue of the confiscation and that, despite other arguments to the contrary, nothing based on their claim to those accounts entitled interventors to retain monies mistakenly paid on those accounts by importers. We do not disturb these conclusions.[6] The Court of Appeals nevertheless observed that interventors had "ignored" demands for the return of the monies and had "fail[ed] *691 to honor the importers' demand (which was confirmed by the Cuban government's counsel at trial)." This conduct was considered to be "the Cuban government's repudiation of its obligation to return the funds" and to constitute an act of state not subject to question in our courts.[7], 485 F. 2d, at 1, 1371. We cannot agree. If interventors, having had their liability adjudicated and various defenses rejected, including the claimed act of state, with respect to preintervention accounts, represented by the Cuban confiscation in were nevertheless to escape repayment by claiming a second and later act of state involving the funds mistakenly paid them, it was their burden to prove that act. Concededly, they declined to pay over the funds; but refusal to repay does not necessarily assert anything more than what interventors had claimed from the outset and what they have continued to claim in this Court—that the preintervention accounts receivable were theirs and that they had no obligation to return payments on those accounts.[8] Neither does it demonstrate that in addition *692 to authority to operate commercial businesses, to pay their bills and to collect their accounts receivable, interventors had been invested with sovereign authority to *693 repudiate all or any part of the debts incurred by those businesses. Indeed, it is difficult to believe that they had the power selectively to refuse payment of legitimate debts arising from the operation of those commercial enterprises. In The "Gul Djemal," a supplier libeled and caused the arrest of the Gul Djemal, a steamship owned and operated for commercial purposes by the Turkish Government, in an effort to recover for supplies and services sold to and performed for the ship. The ship's master, "a duly commissioned officer of the Turkish Navy," appeared in court and asserted sovereign immunity, claiming that such an assertion defeated the court's jurisdiction. A direct appeal was taken to this Court, where it was held that the master's assertion of sovereign immunity was insufficient because his mere representation of his government as master of a commercial ship furnished no basis for assuming he was entitled to represent the sovereign in other capacities.[9] Here there is no more reason to suppose that the interventors possess governmental, as opposed to commercial, authority than there was to suppose that the master of the Gul Djemal possessed such authority. The master of the Gul Djemal claimed the authority to assert sovereign immunity while the interventors claim that they *694 had the authority to commit an act of state, but the difference is unimportant. In both cases, a party claimed to have had the authority to exercise sovereign power. In both, the only authority shown is commercial authority. We thus disagree with the Court of Appeals that the mere refusal of the interventors to repay funds followed by a failure to prove that interventors "were not acting within the scope of their authority as agents of the Cuban government" satisfied respondents' burden of establishing their act of state defense. 485 F. 2d, at 1371. Nor do we consider heavily relied upon by the Court of Appeals, to require a contrary conclusion.[10] In that case and in and it was apparently concluded that the facts were sufficient to demonstrate that the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts. We draw no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was "a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment." But this merely restated respondents' *695 original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers. III If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors' adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to included the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals. Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United : "It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with *696 whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." Cf. Sloan In this same tradition, South drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in the Court said: "If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader" It is thus a familiar concept that "there is a constitutional line between the State as government and the State as trader" New See also ; ; United It is the position of the United States, stated in an amicus brief filed by the Solicitor General, that such a line should be drawn in defining the outer limits of the act of state concept and that repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state beyond legal question in our courts. Attached to the brief of the United States and to this opinion as Appendix 1 is the letter of November 26, 1975, in which the Department of State, speaking through its Legal Adviser agrees with the brief filed by the Solicitor General and, more specifically, declares that *697 "we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial,[11] and not public, in nature."[12] The major underpinning of the act of state doctrine is the policy of foreclosing court adjudications involving the legality of acts of foreign states on their own soil that might embarrass the Executive Branch of our Government in the conduct of our foreign relations. Banco Nacional de -428, 431-433. But based on the presently expressed views of those who conduct our relations with foreign countries, we are in no sense compelled to recognize as *698 an act of state the purely commercial conduct of foreign governments in order to avoid embarrassing conflicts with the Executive Branch. On the contrary, for the reasons to which we now turn, we fear that embarrassment and conflict would more likely ensue if we were to require that the repudiation of a foreign government's debts arising from its operation of a purely commercial business be recognized as an act of state and immunized from question in our courts. Although it had other views in years gone by, in 1952, as evidenced by Appendix 2 (the Tate letter) attached to this opinion, the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state's public or governmental actions and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our Government since that time as the attached letter of November 26, 1975, confirms: "Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity." Repudiation of a commercial debt cannot, consistent with this restrictive approach to sovereign immunity, be treated as an act of state; for if it were, foreign governments, *699 by merely repudiating the debt before or after its adjudication, would enjoy an immunity which our Government would not extend them under prevailing sovereign immunity principles in this country. This would undermine the policy supporting the restrictive view of immunity, which is to assure those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible. Although at one time this Court ordered sovereign immunity extended to a commercial vessel of a foreign country absent a suggestion of immunity from the Executive Branch and although the policy of the United States with respect to its own merchant ships was then otherwise, Berizzi Bros. the authority of that case has been severely diminished by later cases such as Ex parte and In the latter case the Court unanimously denied immunity to a commercial ship owned but not possessed by the Mexican Government. The decision rested on the fact that the Mexican Government was not in possession, but the Court declared, at 35-36: "Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. `In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.' United States v. ; Ex parte "It is therefore not for the courts to deny an *700 immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize. The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte But recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of our national interests and their recognition by other nations." (Footnote omitted.) In a footnote the Court expressly questioned the Berizzi Bros. holding,[13] and two concurring Justices asserted that the Court had effectively overruled that case.[14] *701 Since that time, as we have said, the United States has adopted and adhered to the policy declining to extend sovereign immunity to the commercial dealings of *702 foreign governments. It has based that policy in part on the fact that this approach has been accepted by a large and increasing number of foreign states in the international community;[15] in part on the fact that the United States had already adopted a policy of consenting to be sued in foreign courts in connection with suits against its merchant vessels; and in part because the enormous increase in the extent to which foreign sovereigns had become involved in international trade made essential "a practice which will enable persons doing business with them to have their rights determined in the courts." Appendix 2 to this opinion, infra, at 714. In the last 20 years, lower courts have concluded, in *703 light of this Court's decisions in Ex parte and and from the Tate letter and the changed international environment, that Berizzi Bros. no longer correctly states the law; and they have declined to extend sovereign immunity to foreign sovereigns in cases arising out of purely commercial transactions. Victory Transport, v. Comisaria General, cert. denied, ; Petrol Shipping (CA2), cert. denied, ; Premier S. S. ; Ocean Transport ; ADM Milling Co. v. Republic of Bolivia, Civ. Action No. 75-946 (DC Aug. 8, 1975); Et Ve Balik ; Harris & Co. Advtg., v. Republic of Cuba, Indeed, it is fair to say that the "restrictive theory" of sovereign immunity appears to be generally accepted as the prevailing law in this country. ALI, Restatement (Second), Foreign Relations Law of the United States, 69 Participation by foreign sovereigns in the international commercial market has increased substantially in recent years. Cf. International Economic Report of the President 56 (1975). The potential injury to private businessmen —and ultimately to international trade itself— from a system in which some of the participants in the international market are not subject to the rule of law has therefore increased correspondingly. As noted above, courts of other countries have also recently adopted the restrictive theory of sovereign immunity. Of equal importance is the fact that subjecting foreign governments to the rule of law in their commercial dealings presents a much smaller risk of affronting their sovereignty than *704 would an attempt to pass on the legality of their governmental acts.[16] In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens. Subjecting them in connection with such acts to the same rules of law that apply to private citizens is unlikely to touch very sharply on "national nerves." Moreover, as this Court has noted: "[T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice." Banco Nacional de See also at 430 n. 34. There may be little codification or consensus as to the rules of international law concerning exercises of governmental powers, including military powers and expropriations, within a sovereign state's borders affecting the property or persons of aliens. However, more discernible rules of international law have emerged with regard to the commercial dealings of private parties in the international market.[17] The restrictive *705 approach to sovereign immunity suggests that these established rules should be applied to the commercial transactions of sovereign states. Of course, sovereign immunity has not been pleaded in this case; but it is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments. Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective if given the label "Act of State" than if it is given the label "sovereign immunity."[18]*706 In describing the act of state doctrine in the past we have said that it "precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory." Banco Nacional de and that it applies to "acts done within their own States, in the exercise of governmental authority." We decline to extend the act of state doctrine to acts committed by foreign sovereigns in the course of their purely commercial operations. Because the act relied on by respondents in this case was an act arising out of the conduct by Cuba's agents in the operation of cigar businesses for profit, the act was not an act of state. Reversed. APPENDIX 1 TO OPINION OF THE COURT THE LEGAL ADVISER, DEPARTMENT OF STATE, Washington, November 26, 1975. DEAR MR. SOLICITOR GENERAL: In the case of Alfred Dunhill of London, v. The *707 Republic of Cuba, which is before the Supreme Court on petition for a writ of certiorari, No. 73-1288, the Court has requested the parties to discuss whether its holding in Banco Nacional de should be reconsidered. The Department of State believes that the question of whether the case should be reconsidered involves matters of importance to the foreign policy interests of the United States and requests that its views be conveyed to the Supreme Court. The views expressed herein are in addition to the arguments presented in the brief amicus curiae which the United States is filing in the Dunhill case. As urged in that brief, we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial, and not public, in nature. Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity. In the event, however, that the Court reaches the question whether the holding should be reconsidered, we believe that the following considerations should be called to the Court's attention: Since was decided in the Department of State has on two occasions expressed to courts in the United States its views concerning act of state adjudications. First, in the case itself, on remand, the Executive Branch declined to make a determination under the Hickenlooper Amendment, 22 U.S. C. 2370 (e) (2), "that application of the act of state doctrine is required in this case by the foreign policy *708 interests of the United States." Banco Nacional de (S. D. N. Y.), aff'd, (C. A. 2), certiorari denied, Having taken note of the Executive Branch's position, the district court in Farr applied the Hicken-looper Amendment and held that a Cuban decree of confiscation violated customary international Second, in First National City the Department of State informed the Supreme Court that general foreign relations considerations did not require application of the act of state doctrine to bar adjudication of a counterclaim when the foreign state's claim arises from a relationship between the parties existing when the act of state occurred, and when the amount of relief to be granted is limited to the amount of the foreign state's claim.[1] Relying on the precedent of Bernstein v. N. V. Nederlandsche Amerikaanshe, Etc., (C. A. 2), where the Department had advised that the act of state doctrine need not apply to a class of cases involving Nazi confiscations, the Department in First National City Bank concluded that the act of state doctrine need not be applied "in this or like cases." *709 Significantly, the Farr, Bernstein and First National City Bank cases each involved an Executive Branch determination which opened the way for U. S. courts to review an act of state on the merits under international In each of these cases, the claim or counterclaim in question alleged that an act of state violated customary international Thus, at least on a case-by-case basis, the trend in Executive Branch pronouncements has been that foreign relations considerations do not require application of the act of state doctrine to bar adjudications under international This trend is mirrored in other countries. Apart from the cases cited by Mr. Justice White in n. 1, there have been several recent decisions where foreign courts have reviewed state acts under international [2] English law, from *710 which our act of state doctrine derives, does not require British courts to abstain from reviewing state acts under international [3] As far as can be determined, this exercise of the judicial function in foreign jurisdictions has not caused serious foreign relations consequences for the countries concerned. The present case is similar to Bernstein, Farr and First National City Bank. This Department is of the opinion that there would be no embarrassment to the conduct of foreign policy if the Court should decide in this case to adjudicate the legality of any act of state found to have taken place and to make such adjudication in accordance with any principle of international law found to be relevant. In general this Department's experience provides little support for a presumption that adjudication of acts of foreign states in accordance with relevant principles of international law would embarrass the conduct of foreign policy. Thus, it is our view that if the Court should decide to overrule the holding in so that acts of state would thereafter be subject to adjudication in American courts under international law, we would not anticipate embarrassment *711 to the conduct of the foreign policy of the United States. Sincerely, MONROE LEIGH. APPENDIX 2 TO OPINION OF THE COURT[*] May 19, 1952. MY DEAR MR. ATTORNEY GENERAL: The Department of State has for some time had under consideration the question whether the practice of the Government in granting immunity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the obvious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department's decision. A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agreement by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property excepted) or with respect to the disposition of the *712 property of a deceased person even though a foreign sovereign is the beneficiary. The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland. The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sufficient on which to base a conclusion. The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restrictive theory of immunity if and when the occasion presents itself. A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory. The German courts, after a period of hesitation at the end of the nineteenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive *713 theory since that time the German courts might take a different view today. The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20's to embrace the restrictive theory. Rumania, and possibly Denmark also appear to follow this theory. Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favoring the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory. Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which immunity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming immunity for its public owned or operated merchant vessels. Keeping in mind the importance played by cases involving public vessels in the field of sovereign immunity, it is thus noteworthy that these ten countries (Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Poland, Portugal, Sweden) and the United States have already relinquished by treaty or in practice an important part of the immunity which they claim under the classical theory. *714 It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. There are evidences that British authorities are aware of its deficiencies and ready for a change. The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity. It is realized that a shift in policy by the executive cannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so. There have been indications that at least some Justices of the Supreme Court feel that in this matter courts should follow the branch of the Government charged with responsibility for the conduct of foreign relations. In order that your Department, which is charged with representing the interests of the Government before the courts, may be adequately informed it will be the Department's practice to advise you of all requests by foreign *715 governments for the grant of immunity from suit and of the Department's action thereon. Sincerely yours, For the Secretary of State: JACK B. TATE Acting Legal Adviser MR.

per_curiam

per_curiam

Quinn v. Muscare

https://www.courtlistener.com/opinion/109441/quinn-v-muscare/

https://www.courtlistener.com/api/rest/v3/clusters/109441/

1975-088

The respondent, a lieutenant in the Chicago Fire Department, was suspended from his job for a 29-day period in 1974 as a result of charges related to his violation of *561 the department's personal-appearance regulation.[1] Following the suspension, the respondent brought an action in the United States District Court for the Northern District of Illinois seeking an injunction and backpay on the ground that the regulation infringed his constitutional right to determine "the details of his personal appearance."[2] The department defended the challenged regulation as a safety measure designed to insure proper functioning of gas masks worn by firefighters and as a means of promoting discipline in the department and the uniform, well-groomed appearance of its members. After a hearing focusing on the operation of the self-contained breathing apparatus used by members of the department, the District Court found that the personal-appearance regulation was justified "on safety grounds" *562 and that the respondent's goatee violated the regulation. Explaining that the other regulations cited in the discharge notice were not "relevant or pertinent to the issues," the court denied the respondent's motion for injunctive relief. The Court of Appeals for the Seventh Circuit reversed, holding that the respondent "was suspended without procedural due process."[3] The appellate court concluded that the Constitution requires "that some opportunity to respond to charges against him be made available to the governmental employee prior to disciplinary action against him." The Court of Appeals did not dispute the District Court's determination that "the only issue" was whether the suspension for having a goatee was "justifiable under the circumstances." Although it did not reach the merits of the respondent's challenge to the constitutionality of the hair regulation, the Court of Appeals did note that the regulation "does not appear to be co-extensive with the need for safe and efficient use of gas masks and, if that is the sole justification, might well be more narrowly drawn." Following the grant of certiorari and the oral argument in this case, this Court in another case upheld a police department hair regulation similar to that challenged by the respondent in the present litigation. Kelley v. Johnson, ante, p. 238. In that case, we concluded that "the overall need for discipline, esprit de corps, and uniformity" defeated the policeman's "claim based on the liberty guaranty of the Fourteenth Amendment." Ante, at 246, 248. Kelley v. Johnson renders immaterial the District Court's factual determination regarding the *563 safety justification for the department's hair regulation about which the Court of Appeals expressed doubt. Moreover, after the grant of certiorari, this Court was informed that the Civil Service Commission of the city of Chicago had revised its rules to provide for presuspension hearings in all nonemergency cases.[4] While this voluntary rule change was subject to rescission, counsel for the petitioner candidly advised the Court at oral argument that even if the petitioner should prevail, it was very doubtful that the Commission would revert to its former suspension procedures. In view of these developments, the writ of certiorari is dismissed as improvidently granted. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

The respondent, a lieutenant in the Chicago Fire Department, was suspended from his job for a 29-day period in 1974 as a result of charges related to his violation of *561 the department's personal-appearance regulation.[1] Following the suspension, the respondent brought an action in the United States District Court for the Northern District of Illinois seeking an injunction and backpay on the ground that the regulation infringed his constitutional right to determine "the details of his personal appearance."[2] The department defended the challenged regulation as a safety measure designed to insure proper functioning of gas masks worn by firefighters and as a means of promoting discipline in the department and the uniform, well-groomed appearance of its members. After a hearing focusing on the operation of the self-contained breathing apparatus used by members of the department, the District Court found that the personal-appearance regulation was justified "on safety grounds" *562 and that the respondent's goatee violated the regulation. Explaining that the other regulations cited in the discharge notice were not "relevant or pertinent to the issues," the court denied the respondent's motion for injunctive relief. The Court of Appeals for the Seventh Circuit reversed, holding that the respondent "was suspended without procedural due process."[3] The appellate court concluded that the Constitution requires "that some opportunity to respond to charges against him be made available to the governmental employee prior to disciplinary action against him." The Court of Appeals did not dispute the District Court's determination that "the only issue" was whether the suspension for having a goatee was "justifiable under the circumstances." Although it did not reach the merits of the respondent's challenge to the constitutionality of the hair regulation, the Court of Appeals did note that the regulation "does not appear to be co-extensive with the need for safe and efficient use of gas masks and, if that is the sole justification, might well be more narrowly drawn." Following the grant of certiorari and the oral argument in this case, this Court in another case upheld a police department hair regulation similar to that challenged by the respondent in the present litigation. Kelley v. Johnson, ante, p. 238. In that case, we concluded that "the overall need for discipline, esprit de corps, and uniformity" defeated the policeman's "claim based on the liberty guaranty of the Fourteenth Amendment." Ante, at 246, 248. Kelley v. Johnson renders immaterial the District Court's factual determination regarding the *563 safety justification for the department's hair regulation about which the Court of Appeals expressed doubt. Moreover, after the grant of certiorari, this Court was informed that the Civil Service Commission of the city of Chicago had revised its rules to provide for presuspension hearings in all nonemergency cases.[4] While this voluntary rule change was subject to rescission, counsel for the petitioner candidly advised the Court at oral argument that even if the petitioner should prevail, it was very doubtful that the Commission would revert to its former suspension procedures. In view of these developments, the writ of certiorari is dismissed as improvidently granted. So ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

Justice Marshall

majority

Thomas v. Arn

https://www.courtlistener.com/opinion/111545/thomas-v-arn/

https://www.courtlistener.com/api/rest/v3/clusters/111545/

1985-014

In 1976, Congress amended § 101 of the Federal Magistrates Act, 28 U.S. C. § 636, to provide that a United States district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions. *142 Pub. L. 94-577, 90 Stat. 2729.[1] The amendments also provide that any party that disagrees with the magistrate's recommendations "may serve and file written objections" to the magistrate's report, and thus obtain de novo review by the district judge.[2] The question presented is whether a court of appeals may exercise its supervisory powers to establish a rule that the failure to file objections to the magistrate's report waives the right to appeal the district court's judgment. We hold that it may. I Petitioner was convicted by an Ohio court in 1978 of fatally shooting her common-law husband during an argument. *143 The evidence at trial showed that the victim was a violent man who had beaten petitioner on a number of occasions during the previous three years. Petitioner raised the issue of self-defense at trial, and sought to call two witnesses who would present expert testimony concerning the Battered Wife Syndrome. After conducting a voir dire of these witnesses in chambers, the trial court refused to admit the testimony, on the grounds that the jury did not need the assistance of expert testimony to understand the case and that the witnesses, who had not personally examined petitioner, could not testify about her state of mind at the time of the shooting. The Court of Appeals of Cuyahoga County reversed. State v. Thomas, 64 Ohio App. 2d 141, 411 N.E.2d 845 (1979). The court's syllabus[3] concluded that testimony concerning the Battered Wife Syndrome is admissible "to afford the jury an understanding of the defendant's state of mind at the time she committed the homicide." App. 9. The Ohio Supreme Court, on discretionary review, reversed. State v. Thomas, 66 Ohio St. 2d 518, 423 N.E.2d 137 (1981). The court held that the testimony was irrelevant to the issue of self-defense, and that its prejudicial effect would outweigh its probative value. Having exhausted state remedies, petitioner sought habeas corpus relief in the United States District Court for the Northern District of Ohio. The petition raised, inter alia, the question whether petitioner was denied a fair trial by the trial court's refusal to admit testimony concerning the Battered Wife Syndrome. Petitioner filed a memorandum of law in support of the petition. The District Judge, acting pursuant to 28 U.S. C. § 636(b)(1)(B), referred the case, including petitioner's memorandum of law, to a Magistrate. The Magistrate did not hold a hearing. On May 11, 1982, the Magistrate issued his report, containing proposed findings of fact and conclusions of law and recommending *144 that the writ be denied. On the issue of the Battered Wife Syndrome testimony, the Magistrate concluded that the trial court's failure to admit the proffered testimony had not impaired the fundamental fairness of the trial, and therefore was not an adequate ground for habeas corpus relief. The last page of the Magistrate's report contained the prominent legend: "ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See: United States v. Walters, 638 F.2d 947 (6th Cir. 1981)." Despite this clear notice, petitioner failed to file objections at any time. She sought and received an extension of time to file objections through June 15, 1982, on the grounds that "this case entails many substantive issues and counsel needs more time to write his brief." However, petitioner made no further submissions on the merits to the District Court. Notwithstanding petitioner's failure to file objections, the District Judge sua sponte "review[ed] . . . the entire record de novo," App. 59, and dismissed the petition on the merits. Petitioner sought and was granted leave to appeal. Petitioner's brief on appeal raised only the issue of the Battered Wife Syndrome testimony. The brief provided no explanation for petitioner's failure to object to the Magistrate's report. Counsel for petitioner waived oral argument, and the case was decided on the briefs. The Court of Appeals for the Sixth Circuit affirmed. 728 F.2d 813 (1984). Without reaching the merits, it held that petitioner had waived the right to appeal by failing to file objections to the Magistrate's report. Id., at 815. The court relied upon its prior decision in United States v. Walters, 638 F.2d 947 (1981), which established the prospective rule that failure to file timely objections with the district court waives subsequent review in the *145 court of appeals. We granted the petition for a writ of certiorari, 470 U.S. 1027 (1985), and we now affirm. II In United States v. Walters, supra, the appellant failed to object to the Magistrate's report, and the District Court adopted that report as its disposition of the case. The appellant then brought an appeal. The Court of Appeals for the Sixth Circuit considered the threshold question whether the appellant's failure to apprise the District Court of its disagreement with the Magistrate's recommendation waived the right to appeal. The court held: "The permissive language of 28 U.S. C. § 636 suggests that a party's failure to file objections is not a waiver of appellate review. However, the fundamental congressional policy underlying the Magistrate's Act — to improve access to the federal courts and aid the efficient administration of justice — is best served by our holding that a party shall file objections with the district court or else waive right to appeal. Additionally, through the exercise of our supervisory power, we hold that a party shall be informed by the magistrate that objections must be filed within ten days or further appeal is waived. ..... "However, we give our ruling only prospective effect because rules of procedure should promote, not defeat the ends of justice . . . ." Id., at 949-950 (footnote and citations omitted). The nature of the rule and its prospective application demonstrate that the court intended to adopt a "rul[e] of procedure," id., at 950, in the exercise of its supervisory powers. Later opinions of the Sixth Circuit make it clear that the court views Walters in this way. See Patterson v. Mintzes, 717 F.2d 284, 286 (1983) ("In Walters . . . this Court promulgated [a] rule of waiver"); United States v. Martin, 704 F.2d 267, 275 (1983) (Jones, J., concurring) (characterizing Walters *146 as "[r]ulemaking through the exercise of supervisory powers"). Thus, petitioner's first contention — that the Court of Appeals has refused to exercise the jurisdiction that Congress granted it — is simply inaccurate. The Court of Appeals expressly acknowledged that it had subject-matter jurisdiction over petitioner's appeal. 728 F.2d, at 814. The Sixth Circuit has also shown that its rule is not jurisdictional by excusing the procedural default in a recent case. See Patterson v. Mintzes, supra (considering appeal on merits despite pro se litigant's late filing of objections). We therefore conclude that neither the intent nor the practical effect of the Sixth Circuit's waiver rule is to restrict the court's own jurisdiction.[4] III It cannot be doubted that the courts of appeals have supervisory powers that permit, at the least, the promulgation of procedural rules governing the management of litigation. Cf. Cuyler v. Sullivan, 446 U.S. 335, 346, n. 10 (1980) (approving exercise of supervisory powers to require district court inquiry concerning joint representation of criminal defendants). Indeed, this Court has acknowledged the power of the courts of appeals to mandate "procedures deemed desirable from the viewpoint of sound judicial practice although *147 in nowise commanded by statute or by the Constitution." Cupp v. Naughten, 414 U.S. 141, 146 (1973); see also Barker v. Wingo, 407 U.S. 514, 530, n. 29 (1972).[5] Had petitioner failed to comply with a scheduling order or pay a filing fee established by a court of appeals, that court could certainly dismiss the appeal. Cf. Link v. Wabash R. Co., 370 U.S. 626 (1962) (recognizing "inherent power" of court to dismiss case for want of prosecution). The fact that the Sixth Circuit has deemed petitioner to have forfeited her statutory right to an appeal is not enough, standing alone, to invalidate the court's exercise of its supervisory power. The Sixth Circuit's decision to require the filing of objections is supported by sound considerations of judicial economy. The filing of objections to a magistrate's report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute.[6] The Sixth Circuit's rule, by precluding appellate *148 review of any issue not contained in objections, prevents a litigant from "sandbagging" the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate's analysis and even if both parties were satisfied with the magistrate's report. Either result would be an inefficient use of judicial resources. In short, "[t]he same rationale that prevents a party from raising an issue before a circuit court of appeals that was not raised before the district court applies here." United States v. Schronce, 727 F.2d 91, 94 (CA4) (footnote omitted), cert. denied, 467 U.S. 1208 (1984). IV Even a sensible and efficient use of the supervisory power, however, is invalid if it conflicts with constitutional or statutory provisions. A contrary result "would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737 (1980). Thus we now consider whether the Sixth Circuit's waiver rule conflicts with statutory law or with the Constitution. A Petitioner argues that the Federal Magistrates Act precludes the waiver rule adopted by the Sixth Circuit. Her argument focuses on the permissive nature of the statutory language. The statute provides that a litigant "may" file objections, and nowhere states that the failure to do so will waive an appeal. Petitioner cites the Eighth Circuit's conclusion that "[o]ne would think that if Congress had wished such a drastic consequence to follow from the missing of the ten-day time limit, it would have said so explicitly." Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (1983). However, *149 we need not decide whether the Act mandates a waiver of appellate review absent objections. We hold only that it does not forbid such a rule. Section 636(b)(1)(C) provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." The statute does not on its face require any review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection. Petitioner argues, however, that the statutory language and purpose implicitly require the district court to review a magistrate's report even if no party objects. If petitioner's interpretation of the statute is correct, then the waiver of appellate review, as formulated by the Sixth and other Circuits, proceeds from an erroneous assumption — that the failure to object may constitute a procedural default waiving review even at the district court level.[7] Moreover, were the district judge required to review the magistrate's report in every case, the waiver of appellate review would not promote judicial economy as discussed in Part III, supra. Petitioner first argues that a failure to object waives only de novo review, and that the district judge must still review the magistrate's report under some lesser standard. However, § 636(b)(1)(C) simply does not provide for such review. This omission does not seem to be inadvertent, because Congress provided for a "clearly erroneous or contrary to law" standard of review of a magistrate's disposition of certain pretrial matters in § 636(b)(1)(A). See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (CA1 1980). Nor *150 does petitioner point to anything in the legislative history of the 1976 amendments mandating review under some lesser standard. We are therefore not persuaded that the statute positively requires some lesser review by the district court when no objections are filed. Petitioner also argues that, under the Act, the obligatory filing of objections extends only to findings of fact. She urges that Congress, in order to vest final authority over questions of law in an Article III judge, intended that the district judge would automatically review the magistrate's conclusions of law. We reject, however, petitioner's distinction between factual and legal issues. Once again, the plain language of the statute recognizes no such distinction.[8] We also fail to find such a requirement in the legislative history. It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate's report. See S. Rep. No. 94-625, pp. 9-10 (1976) (hereafter Senate Report); H. R. Rep. No. 94-1609, p. 11 (1976) (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate's report than the court considers appropriate.[9] Moreover, the Subcommittee *151 that drafted and held hearings on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that "[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time." See Jurisdiction of United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975) (emphasis added) (hereafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See id., at 11 ("If any objections come in, . . . I review [the record] and decide it. If no objections come in, I merely sign the magistrate's order").[10] The *152 Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in § 636(b)(1)(C), opined that in most instances no party would object to the magistrate's recommendation, and the litigation would terminate with the judge's adoption of the magistrate's report. See Senate Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate's report would file objections, and those objections would trigger district court review.[11] There is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit. Nor is the waiver of appellate review inconsistent with the purposes of the Act. The Act grew out of Congress' desire to give district judges "additional assistance" in dealing with a caseload that was increasing far more rapidly than the number of judgeships. Mathews v. Weber, 423 U.S. 261, 268 (1976).[12] Congress did not intend district judges "to devote a *153 substantial portion of their available time to various procedural steps rather than to the trial itself." House Report, at 7. Nor does the legislative history indicate that Congress intended this task merely to be transferred to the court of appeals. It seems clear that Congress would not have wanted district judges to devote time to reviewing magistrate's reports except to the extent that such review is requested by the parties or otherwise necessitated by Article III of the Constitution. We now turn to the latter question. B Petitioner contends that the waiver of appellate review violates Article III and the Due Process Clause of the Fifth Amendment. Article III vests the judicial power of the United States in judges who have life tenure and protection from decreases in salary.[13] Although a magistrate is not an Article III judge, this Court has held that a district court may refer dispositive motions to a magistrate for a recommendation so long as "the entire process takes place under the district court's total control and jurisdiction," United States v. Raddatz, 447 U.S. 667, 681 (1980), and the judge " `exercise[s] the ultimate authority to issue an appropriate order,' " id., at 682, quoting Senate Report, at 3. The Sixth Circuit's rule, as petitioner sees it, permits a magistrate to exercise the Article III judicial power, because the rule forecloses meaningful review of a magistrate's report at both the district and appellate levels if no objections are filed. We find that argument untenable. The waiver of appellate review does not implicate Article III, because it is the *154 district court, not the court of appeals, that must exercise supervision over the magistrate. Even assuming, however, that the effect of the Sixth Circuit's rule is to permit both the district judge and the court of appeals to refuse to review a magistrate's report absent timely objection, we do not believe that the rule elevates the magistrate from an adjunct to the functional equivalent of an Article III judge. The rule merely establishes a procedural default that has no effect on the magistrate's or the court's jurisdiction. The district judge has jurisdiction over the case at all times. He retains full authority to decide whether to refer a case to the magistrate, to review the magistrate's report, and to enter judgment. Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard. Indeed, in the present case, the District Judge made a de novo determination of the petition despite petitioner's failure even to suggest that the Magistrate erred. The Sixth Circuit's rule, therefore, has not removed " `the essential attributes of the judicial power,' " Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 77 (1982) (plurality opinion), quoting Crowell v. Benson, 285 U.S. 22, 51 (1932), from the Article III tribunal.[14] *155 Petitioner claims also that she was denied her statutory right of appeal, in violation of the Due Process Clause. That right was not denied, however; it was merely conditioned upon the filing of a piece of paper. Petitioner was notified in unambiguous terms of the consequences of a failure to file, and deliberately failed to file nevertheless. We recently reiterated our longstanding maxim that "the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). The same rationale applies to the forfeiture of an appeal, and we believe that the Sixth Circuit's rule is reasonable. Litigants subject to the Sixth Circuit's rule are afforded " `an opportunity . . . granted at a meaningful time and in a meaningful manner,' " ibid., quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965), to obtain a hearing by the Court of Appeals. We also emphasize that, because the rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interests of justice.[15] V We hold that a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired. Such a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power that does not violate either the Federal Magistrates Act or the Constitution. The judgment of the Court of Appeals is Affirmed.

In 1976, Congress amended 101 of the Federal Magistrates Act, 28 U.S. C. 636, to provide that a United States district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions. *142 Stat. 2729.[1] The amendments also provide that any party that disagrees with the magistrate's recommendations "may serve and file written objections" to the magistrate's report, and thus obtain de novo review by the district judge.[2] The question presented is whether a court of appeals may exercise its supervisory powers to establish a rule that the failure to file objections to the magistrate's report waives the right to appeal the district court's judgment. We hold that it may. I Petitioner was convicted by an Ohio court in 1978 of fatally shooting her common-law husband during an argument. *143 The evidence at trial showed that the victim was a violent man who had beaten petitioner on a number of occasions during the previous three years. Petitioner raised the issue of self-defense at trial, and sought to call two witnesses who would present expert testimony concerning the Battered Wife Syndrome. After conducting a voir dire of these witnesses in chambers, the trial court refused to admit the testimony, on the grounds that the jury did not need the assistance of expert testimony to understand the case and that the witnesses, who had not personally examined petitioner, could not testify about her state of mind at the time of the shooting. The Court of Appeals of Cuyahoga County reversed. The court's syllabus[3] concluded that testimony concerning the Battered Wife Syndrome is admissible "to afford the jury an understanding of the defendant's state of mind at the time she committed the homicide." App. 9. The Ohio Supreme Court, on discretionary review, reversed. The court held that the testimony was irrelevant to the issue of self-defense, and that its prejudicial effect would outweigh its probative value. Having exhausted state remedies, petitioner sought habeas corpus relief in the United States District Court for the Northern District of Ohio. The petition raised, inter alia, the question whether petitioner was denied a fair trial by the trial court's refusal to admit testimony concerning the Battered Wife Syndrome. Petitioner filed a memorandum of law in support of the petition. The District Judge, acting pursuant to 28 U.S. C. 636(b)(1)(B), referred the case, including petitioner's memorandum of law, to a Magistrate. The Magistrate did not hold a hearing. On May 11, 1982, the Magistrate issued his report, containing proposed findings of fact and conclusions of law and recommending *144 that the writ be denied. On the issue of the Battered Wife Syndrome testimony, the Magistrate concluded that the trial court's failure to admit the proffered testimony had not impaired the fundamental fairness of the trial, and therefore was not an adequate ground for habeas corpus relief. The last page of the Magistrate's report contained the prominent legend: "ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See: United" Despite this clear notice, petitioner failed to file objections at any time. She sought and received an extension of time to file objections through June 15, 1982, on the grounds that "this case entails many substantive issues and counsel needs more time to write his brief." However, petitioner made no further submissions on the merits to the District Court. Notwithstanding petitioner's failure to file objections, the District Judge sua sponte "review[ed] the entire record de novo," App. 59, and dismissed the petition on the merits. Petitioner sought and was granted leave to Petitioner's brief on appeal raised only the issue of the Battered Wife Syndrome testimony. The brief provided no explanation for petitioner's failure to object to the Magistrate's report. Counsel for petitioner waived oral argument, and the case was decided on the briefs. The Court of Appeals for the Sixth Circuit affirmed. Without reaching the merits, it held that petitioner had waived the right to appeal by failing to file objections to the Magistrate's report. The court relied upon its prior decision in United which established the prospective rule that failure to file timely objections with the district court waives subsequent review in the *145 court of appeals. We granted the petition for a writ of certiorari, and we now affirm. II In United the appellant failed to object to the Magistrate's report, and the District Court adopted that report as its disposition of the case. The appellant then brought an The Court of Appeals for the Sixth Circuit considered the threshold question whether the appellant's failure to apprise the District Court of its disagreement with the Magistrate's recommendation waived the right to The court held: "The permissive language of 28 U.S. C. 636 suggests that a party's failure to file objections is not a waiver of appellate review. However, the fundamental congressional policy underlying the Magistrate's Act — to improve access to the federal courts and aid the efficient administration of justice — is best served by our holding that a party shall file objections with the district court or else waive right to Additionally, through the exercise of our supervisory power, we hold that a party shall be informed by the magistrate that objections must be filed within ten days or further appeal is waived. "However, we give our ruling only prospective effect because rules of procedure should promote, not defeat the ends of justice" The nature of the rule and its prospective application demonstrate that the court intended to adopt a "rul[e] of procedure," in the exercise of its supervisory powers. Later opinions of the Sixth Circuit make it clear that the court views in this way. See ("In this Court promulgated [a] rule of waiver"); United (characterizing * as "[r]ulemaking through the exercise of supervisory powers"). Thus, petitioner's first contention — that the Court of Appeals has refused to exercise the jurisdiction that Congress granted it — is simply inaccurate. The Court of Appeals expressly acknowledged that it had subject-matter jurisdiction over petitioner's The Sixth Circuit has also shown that its rule is not jurisdictional by excusing the procedural default in a recent case. See We therefore conclude that neither the intent nor the practical effect of the Sixth Circuit's waiver rule is to restrict the court's own jurisdiction.[4] It cannot be doubted that the courts of appeals have supervisory powers that permit, at the least, the promulgation of procedural rules governing the management of litigation. Cf. Indeed, this Court has acknowledged the power of the courts of appeals to mandate "procedures deemed desirable from the viewpoint of sound judicial practice although *147 in nowise commanded by statute or by the Constitution." ; see also[5] Had petitioner failed to comply with a scheduling order or pay a filing fee established by a court of appeals, that court could certainly dismiss the Cf. The fact that the Sixth Circuit has deemed petitioner to have forfeited her statutory right to an appeal is not enough, standing alone, to invalidate the court's exercise of its supervisory power. The Sixth Circuit's decision to require the filing of objections is supported by sound considerations of judicial economy. The filing of objections to a magistrate's report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute.[6] The Sixth Circuit's rule, by precluding appellate *148 review of any issue not contained in objections, prevents a litigant from "sandbagging" the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate's analysis and even if both parties were satisfied with the magistrate's report. Either result would be an inefficient use of judicial resources. In short, "[t]he same rationale that prevents a party from raising an issue before a circuit court of appeals that was not raised before the district court applies here." United (CA4) (footnote omitted), cert. denied, IV Even a sensible and efficient use of the supervisory power, however, is invalid if it conflicts with constitutional or statutory provisions. A contrary result "would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing." United Thus we now consider whether the Sixth Circuit's waiver rule conflicts with statutory law or with the Constitution. A Petitioner argues that the Federal Magistrates Act precludes the waiver rule adopted by the Sixth Circuit. Her argument focuses on the permissive nature of the statutory language. The statute provides that a litigant "may" file objections, and nowhere states that the failure to do so will waive an Petitioner cites the Eighth Circuit's conclusion that "[o]ne would think that if Congress had wished such a drastic consequence to follow from the missing of the ten-day time limit, it would have said so explicitly." Lorin However, *149 we need not decide whether the Act mandates a waiver of appellate review absent objections. We hold only that it does not forbid such a rule. Section 636(b)(1)(C) provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." The statute does not on its face require any review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection. Petitioner argues, however, that the statutory language and purpose implicitly require the district court to review a magistrate's report even if no party objects. If petitioner's interpretation of the statute is correct, then the waiver of appellate review, as formulated by the Sixth and other Circuits, proceeds from an erroneous assumption — that the failure to object may constitute a procedural default waiving review even at the district court level.[7] Moreover, were the district judge required to review the magistrate's report in every case, the waiver of appellate review would not promote judicial economy as discussed in Part Petitioner first argues that a failure to object waives only de novo review, and that the district judge must still review the magistrate's report under some lesser standard. However, 636(b)(1)(C) simply does not provide for such review. This omission does not seem to be inadvertent, because Congress provided for a "clearly erroneous or contrary to law" standard of review of a magistrate's disposition of certain pretrial matters in 636(b)(1)(A). See Park Motor Mart, Nor *150 does petitioner point to anything in the legislative history of the 1976 amendments mandating review under some lesser standard. We are therefore not persuaded that the statute positively requires some lesser review by the district court when no objections are filed. Petitioner also argues that, under the Act, the obligatory filing of objections extends only to findings of fact. She urges that Congress, in order to vest final authority over questions of law in an Article judge, intended that the district judge would automatically review the magistrate's conclusions of law. We reject, however, petitioner's distinction between factual and legal issues. Once again, the plain language of the statute recognizes no such distinction.[8] We also fail to find such a requirement in the legislative history. It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate's report. See S. Rep. No. -625, pp. 9-10 (hereafter Senate Report); H. R. Rep. No. -1609, p. 11 (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate's report than the court considers appropriate.[9] Moreover, the Subcommittee *1 that drafted and held hearings on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that "[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time." See Jurisdiction of United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, th Cong., 1st Sess., 24 (1975) (emphasis added) (hereafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See[10] The *152 Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in 636(b)(1)(C), opined that in most instances no party would object to the magistrate's recommendation, and the litigation would terminate with the judge's adoption of the magistrate's report. See Senate Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate's report would file objections, and those objections would trigger district court review.[11] There is no indication that Congress, in enacting 636(b)(1)(C), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit. Nor is the waiver of appellate review inconsistent with the purposes of the Act. The Act grew out of Congress' desire to give district judges "additional assistance" in dealing with a caseload that was increasing far more rapidly than the number of judgeships.[12] Congress did not intend district judges "to devote a *153 substantial portion of their available time to various procedural steps rather than to the trial itself." House Report, at 7. Nor does the legislative history indicate that Congress intended this task merely to be transferred to the court of appeals. It seems clear that Congress would not have wanted district judges to devote time to reviewing magistrate's reports except to the extent that such review is requested by the parties or otherwise necessitated by Article of the Constitution. We now turn to the latter question. B Petitioner contends that the waiver of appellate review violates Article and the Due Process Clause of the Fifth Amendment. Article vests the judicial power of the United States in judges who have life tenure and protection from decreases in salary.[13] Although a magistrate is not an Article judge, this Court has held that a district court may refer dispositive motions to a magistrate for a recommendation so long as "the entire process takes place under the district court's total control and jurisdiction," United and the judge " `exercise[s] the ultimate authority to issue an appropriate order,' " quoting Senate Report, at 3. The Sixth Circuit's rule, as petitioner sees it, permits a magistrate to exercise the Article judicial power, because the rule forecloses meaningful review of a magistrate's report at both the district and appellate levels if no objections are filed. We find that argument untenable. The waiver of appellate review does not implicate Article because it is the *154 district court, not the court of appeals, that must exercise supervision over the magistrate. Even assuming, however, that the effect of the Sixth Circuit's rule is to permit both the district judge and the court of appeals to refuse to review a magistrate's report absent timely objection, we do not believe that the rule elevates the magistrate from an adjunct to the functional equivalent of an Article judge. The rule merely establishes a procedural default that has no effect on the magistrate's or the court's jurisdiction. The district judge has jurisdiction over the case at all times. He retains full authority to decide whether to refer a case to the magistrate, to review the magistrate's report, and to enter judgment. Any party that desires plenary consideration by the Article judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard. Indeed, in the present case, the District Judge made a de novo determination of the petition despite petitioner's failure even to suggest that the Magistrate erred. The Sixth Circuit's rule, therefore, has not removed " `the essential attributes of the judicial power,' " Northern Pipeline quoting from the Article tribunal.[14] *155 Petitioner claims also that she was denied her statutory right of appeal, in violation of the Due Process Clause. That right was not denied, however; it was merely conditioned upon the filing of a piece of paper. Petitioner was notified in unambiguous terms of the consequences of a failure to file, and deliberately failed to file nevertheless. We recently reiterated our longstanding maxim that "the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule." The same rationale applies to the forfeiture of an appeal, and we believe that the Sixth Circuit's rule is reasonable. Litigants subject to the Sixth Circuit's rule are afforded " `an opportunity granted at a meaningful time and in a meaningful manner,' " ib quoting to obtain a hearing by the Court of Appeals. We also emphasize that, because the rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interests of justice.[15] V We hold that a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired. Such a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power that does not violate either the Federal Magistrates Act or the Constitution. The judgment of the Court of Appeals is Affirmed.

Justice Douglas

majority

American Farm Lines v. Black Ball Freight Service

https://www.courtlistener.com/opinion/108117/american-farm-lines-v-black-ball-freight-service/

https://www.courtlistener.com/api/rest/v3/clusters/108117/

1969-074

The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority "without hearings or other proceedings" when the authority relates to a "service for which there is an immediate and urgent need" and where there is "no *534 carrier service capable of meeting such need."[1] Interstate Commerce Act § 210a, 52 Stat. 1238, as amended, 49 U.S. C. § 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131.[2] Among other things, those rules require that an applicant accompany his application with supporting statements of shippers that contain information "designed to establish an immediate and urgent need for service which cannot be met by existing carriers." Id., § 1131.2 (c). Each such supporting statement "must contain at least" 11 items of information[3] including the following: "(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts. "(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal." *535 Appellant American Farm Lines (AFL) filed an application for temporary operating authority.[4] The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary *536 Authorities Board denied the application on the ground that the "applicant has not established that there exists an immediate and urgent need for any of the service proposed." Division I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits.[5] The ICC admitted at that stage that its first order "may not have been based upon evidence to support its conclusion," but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F. Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction.[6] 396 U.S. 884. *537 I The first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve "jurisdictional" problems but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority. The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved "in the most expeditious manner possible," and that, since air transport was prohibitively expensive "except in the most extreme emergencies," there was an "imperative" need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but in addition rested on the need to coordinate arrival times of shipments with factory production schedules and with shiploading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD's transportation needs. Concededly, the Caputo statement did not give the dates of DOD's efforts to secure service from other existing carriers or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9). 49 CFR § 1131.2 (c). Such a complete listing of this information, *538 given the volume of traffic involved, would indeed have been a monumental undertaking. The failure of the Caputo statement to provide these particular specifics did not prejudice the carriers in making precise and informed objections to AFL's application. The briefest perusal of the objecting carriers' replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL's service was required to meet DOD's immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission's decision. The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission's use in deciding applications for temporary authority. We agree with the Commission that the rules were promulgated for the purpose of providing the "necessary information" for the Commission "to reach an informed and equitable decision" on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down "if the applications do not adequately comply with [the] . . . rules." Ibid. (Emphasis added.) The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion *539 as in Vitarelli v. Seaton, 359 U.S. 535; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Accardi v. Shaughnessy, 347 U.S. 260; Yellin v. United States, 374 U.S. 109. Thus there is no reason to exempt this case from the general principle that "[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party." NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764. And see NLRB v. Grace Co., 184 F.2d 126, 129; Sun Oil Co. v. FPC, 256 F.2d 233; McKenna v. Seaton, 104 U. S. App. D. C. 50, 259 F.2d 780. We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, 292 F. Supp. 842, aff'd, 394 U.S. 718. There the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission's rules. That result was in line with § 210a (a) of the Act which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions but as tools to aid the Commission in exercising its discretion to meet "an immediate and urgent need" for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency's independent discretion. II After the Commission issued its first order, petitions for reconsideration were filed and before they were passed *540 upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued and over a month before the case was argued to the three-judge court that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement. The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record. Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U.S. C. § 160 (d) and § 160 (e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S. C. § 45 (c) and in § 11 of the Clayton Act, 38 Stat. 734, as amended, 15 U.S. C. § 21 (c). And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U.S. C. § 2347 (c) (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act.[7] It indeed empowers the Commission "at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same."[8] The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U.S. C. *541 § 17 (6) or § 17 (7). Thus in § 17 (6) it is said, "Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear." And § 17 (7) provides that if after rehearing or reconsideration the original decision, order, or requirement appears "unjust or unwarranted," the Commission may "reverse, change, or modify" the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court. Unless Congress provides otherwise, "[W]here a motion for rehearing is in fact filed there is no final action until the rehearing is denied." Outland v. CAB, 109 U. S. App. D. C. 90, 93, 284 F.2d 224, 227. In multi-party proceedings, such as the present one, some may seek judicial review and others may seek administrative reconsideration. "That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes." Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U. S. App. D. C. 324, 327, 248 F.2d 646, 649. The concept "of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit" some statutory schemes, ibid., but it does not fit this one. This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is "without power to act inconsistently with the court's jurisdiction." Inland Steel Co. v. United States, 306 U.S. 153, 160. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court's protective *542 order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission.[9] Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings. The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced and fully honored the stay order of the District Court. It therefore acted in full harmony with the court's jurisdiction. Reversed. MR. JUSTICE BRENNAN, whom MR. JUSTICE STEWART and MR.

The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority "without hearings or other proceedings" when the authority relates to a "service for which there is an immediate and urgent need" and where there is "no *534 carrier service capable of meeting such need."[1] Interstate Commerce Act 210a, as amended, 49 U.S. C. 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131.[2] Among other things, those rules require that an applicant accompany his application with supporting statements of shippers that contain information "designed to establish an immediate and urgent need for service which cannot be met by existing carriers." 1131.2 Each such supporting statement "must contain at least" 11 items of information[3] including the following: "(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts. "(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal." *535 Appellant American Farm Lines (AFL) filed an application for temporary operating authority.[4] The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary *536 Authorities Board denied the application on the ground that the "applicant has not established that there exists an immediate and urgent need for any of the service proposed." Division I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits.[5] The ICC admitted at that stage that its first order "may not have been based upon evidence to support its conclusion," but argued that there was no infirmity in the new order. The three-judge court set aside both orders. Both AFL and ICC appealed to this Court and we noted probable jurisdiction.[6] *537 I The first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve "jurisdictional" problems but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority. The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved "in the most expeditious manner possible," and that, since air transport was prohibitively expensive "except in the most extreme emergencies," there was an "imperative" need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but in addition rested on the need to coordinate arrival times of shipments with factory production schedules and with shiploading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD's transportation needs. Concededly, the Caputo statement did not give the dates of DOD's efforts to secure service from other existing carriers or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9). 49 CFR 1131.2 Such a complete listing of this information, *538 given the volume of traffic involved, would indeed have been a monumental undertaking. The failure of the Caputo statement to provide these particular specifics did not prejudice the carriers in making precise and informed objections to AFL's application. The briefest perusal of the objecting carriers' replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL's service was required to meet DOD's immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission's decision. The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission's use in deciding applications for temporary authority. We agree with the Commission that the rules were promulgated for the purpose of providing the "necessary information" for the Commission "to reach an informed and equitable decision" on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down "if the applications do not adequately comply with [the] rules." The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion *539 as in ; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. ; Thus there is no reason to exempt this case from the general principle that "[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party." And see ; Sun Oil ; We deal here with the grant of temporary authority similar to that granted in Estes Express aff'd, There the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission's rules. That result was in line with 210a (a) of the Act which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions but as tools to aid the Commission in exercising its discretion to meet "an immediate and urgent need" for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency's independent discretion. II After the Commission issued its first order, petitions for reconsideration were filed and before they were passed *540 upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued and over a month before the case was argued to the three-judge court that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement. The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record. Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 29 U.S. C. (d) and (e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in 5 of the Federal Trade Commission Act, as amended, 15 U.S. C. 45 and in 11 of the Clayton Act, as amended, 15 U.S. C. 21 And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U.S. C. 2347 (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act.[7] It indeed empowers the Commission "at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same."[8] The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U.S. C. *541 17 (6) or 17 (7). Thus in 17 (6) it is said, "Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear." And 17 (7) provides that if after rehearing or reconsideration the original decision, order, or requirement appears "unjust or unwarranted," the Commission may "reverse, change, or modify" the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court. Unless Congress provides otherwise, "[W]here a motion for rehearing is in fact filed there is no final action until the rehearing is denied." In multi-party proceedings, such as the present one, some may seek judicial review and others may seek administrative reconsideration. "That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes." Wrather-Alvarez Broadcasting, The concept "of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit" some statutory schemes, ibid., but it does not fit this one. This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is "without power to act inconsistently with the court's jurisdiction." Inland Steel When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court's protective *542 order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission.[9] Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings. The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced and fully honored the stay order of the District Court. It therefore acted in full harmony with the court's jurisdiction. Reversed. MR. JUSTICE BRENNAN, whom MR. JUSTICE STEWART and MR.

Justice Burger

majority

Santobello v. New York

https://www.courtlistener.com/opinion/108416/santobello-v-new-york/

https://www.courtlistener.com/api/rest/v3/clusters/108416/

1971-026

We granted certiorari in this case to determine whether the State's failure to keep a commitment concerning *258 the sentence recommendation on a guilty plea required a new trial. The facts are not in dispute. The State of New York indicted petitioner in 1969 on two felony counts, Promoting Gambling in the First Degree, and Possession of Gambling Records in the First Degree, N. Y. Penal Law §§ 225.10, 225.20. Petitioner first entered a plea of not guilty to both counts. After negotiations, the Assistant District Attorney in charge of the case agreed to permit petitioner to plead guilty to a lesser-included offense, Possession of Gambling Records in the Second Degree, N. Y. Penal Law § 225.15, conviction of which would carry a maximum prison sentence of one year. The prosecutor agreed to make no recommendation as to the sentence. On June 16, 1969, petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. Petitioner represented to the sentencing judge that the plea was voluntary and that the facts of the case, as described by the Assistant District Attorney, were true. The court accepted the plea and set a date for sentencing. A series of delays followed, owing primarily to the absence of a pre-sentence report, so that by September 23, 1969, petitioner had still not been sentenced. By that date petitioner acquired new defense counsel. Petitioner's new counsel moved immediately to withdraw the guilty plea. In an accompanying affidavit, petitioner alleged that he did not know at the time of his plea that crucial evidence against him had been obtained as a result of an illegal search. The accuracy of this affidavit is subject to challenge since petitioner had filed and withdrawn a motion to suppress, before pleading guilty. In addition to his motion to withdraw his guilty plea, petitioner renewed the motion to suppress and filed a motion to inspect the grand jury minutes. *259 These three motions in turn caused further delay until November 26, 1969, when the court denied all three and set January 9, 1970, as the date for sentencing. On January 9 petitioner appeared before a different judge, the judge who had presided over the case to this juncture having retired. Petitioner renewed his motions, and the court again rejected them. The court then turned to consideration of the sentence. At this appearance, another prosecutor had replaced the prosecutor who had negotiated the plea. The new prosecutor recommended the maximum one-year sentence. In making this recommendation, he cited petitioner's criminal record and alleged links with organized crime. Defense counsel immediately objected on the ground that the State had promised petitioner before the plea was entered that there would be no sentence recommendation by the prosecution. He sought to adjourn the sentence hearing in order to have time to prepare proof of the first prosecutor's promise. The second prosecutor, apparently ignorant of his colleague's commitment, argued that there was nothing in the record to support petitioner's claim of a promise, but the State, in subsequent proceedings, has not contested that such a promise was made. The sentencing judge ended discussion, with the following statement, quoting extensively from the presentence report: "Mr. Aronstein [Defense Counsel], I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn't make a particle of difference what the District Attorney says he will do, or what he doesn't do. "I have here, Mr. Aronstein, a probation report. I have here a history of a long, long serious criminal record. I have here a picture of the life history of this man. . . . *260 " `He is unamenable to supervision in the community. He is a professional criminal.' This is in quotes. `And a recidivist. Institutionalization—'; that means, in plain language, just putting him away, `is the only means of halting his anti-social activities,' and protecting you, your family, me, my family, protecting society. `Institutionalization.' Plain language, put him behind bars. "Under the plea, I can only send him to the New York City Correctional Institution for men for one year, which I am hereby doing." The judge then imposed the maximum sentence of one year. Petitioner sought and obtained a certificate of reasonable doubt and was admitted to bail pending an appeal. The Supreme Court of the State of New York, Appellate Division, First Department, unanimously affirmed petitioner's conviction, 35 A.D. 2d 1084, 316 N. Y. S. 2d 194 (1970), and petitioner was denied leave to appeal to the New York Court of Appeals. Petitioner then sought certiorari in this Court. Mr. Justice Harlan granted bail pending our disposition of the case. This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. *261 Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752 (1970). However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v. Michigan, 355 U.S. 155 (1957). Fed. Rule Crim. Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.[1] The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must *262 in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719 (1962); Fed. Rule Crim. Proc. 11. A court may reject a plea in exercise of sound judicial discretion. This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor's office have the burden of "letting the left hand know what the right hand is doing" or has done. That the breach of agreement was inadvertent does not lessen its impact. We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case *263 to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty.[2] We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge. The judgment is vacated and the case is remanded for reconsideration not inconsistent with this opinion. MR.

We granted certiorari in this case to determine whether the State's failure to keep a commitment concerning *258 the sentence recommendation on a guilty plea required a new trial. The facts are not in dispute. The State of New York indicted petitioner in 1969 on two felony counts, Promoting Gambling in the First Degree, and Possession of Gambling Records in the First Degree, N. Y. Penal Law 225.10, 225.20. Petitioner first entered a plea of not guilty to both counts. After negotiations, the Assistant District Attorney in charge of the case agreed to permit petitioner to plead guilty to a lesser-included offense, Possession of Gambling Records in the Second Degree, N. Y. Penal Law 225.15, conviction of which would carry a maximum prison sentence of one year. The prosecutor agreed to make no recommendation as to the sentence. On June 16, 1969, petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. Petitioner represented to the sentencing judge that the plea was voluntary and that the facts of the case, as described by the Assistant District Attorney, were true. The court accepted the plea and set a date for sentencing. A series of delays followed, owing primarily to the absence of a pre-sentence report, so that by September 23, 1969, petitioner had still not been sentenced. By that date petitioner acquired new defense counsel. Petitioner's new counsel moved immediately to withdraw the guilty plea. In an accompanying affidavit, petitioner alleged that he did not know at the time of his plea that crucial evidence against him had been obtained as a result of an illegal search. The accuracy of this affidavit is subject to challenge since petitioner had filed and withdrawn a motion to suppress, before pleading guilty. In addition to his motion to withdraw his guilty plea, petitioner renewed the motion to suppress and filed a motion to inspect the grand jury minutes. *259 These three motions in turn caused further delay until November 26, 1969, when the court denied all three and set January 9, as the date for sentencing. On January 9 petitioner appeared before a different judge, the judge who had presided over the case to this juncture having retired. Petitioner renewed his motions, and the court again rejected them. The court then turned to consideration of the sentence. At this appearance, another prosecutor had replaced the prosecutor who had negotiated the plea. The new prosecutor recommended the maximum one-year sentence. In making this recommendation, he cited petitioner's criminal record and alleged links with organized crime. Defense counsel immediately objected on the ground that the State had promised petitioner before the plea was entered that there would be no sentence recommendation by the prosecution. He sought to adjourn the sentence hearing in order to have time to prepare proof of the first prosecutor's promise. The second prosecutor, apparently ignorant of his colleague's commitment, argued that there was nothing in the record to support petitioner's claim of a promise, but the State, in subsequent proceedings, has not contested that such a promise was made. The sentencing judge ended discussion, with the following statement, quoting extensively from the presentence report: "Mr. Aronstein [Defense Counsel], I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn't make a particle of difference what the District Attorney says he will do, or what he doesn't do. "I have here, Mr. Aronstein, a probation report. I have here a history of a long, long serious criminal record. I have here a picture of the life history of this man. *260 " `He is unamenable to supervision in the community. He is a professional criminal.' This is in quotes. `And a recidivist. Institutionalization—'; that means, in plain language, just putting him away, `is the only means of halting his anti-social activities,' and protecting you, your family, me, my family, protecting society. `Institutionalization.' Plain language, put him behind bars. "Under the plea, I can only send him to the New York City Correctional Institution for men for one year, which I am hereby doing." The judge then imposed the maximum sentence of one year. Petitioner sought and obtained a certificate of reasonable doubt and was admitted to bail pending an appeal. The Supreme Court of the State of New York, Appellate Division, First Department, unanimously affirmed petitioner's conviction, and petitioner was denied leave to appeal to the New York Court of Appeals. Petitioner then sought certiorari in this Court. Mr. Justice Harlan granted bail pending our disposition of the case. This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. *261 Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Fed. Rule Crim. Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.[1] The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must *262 in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. ; Fed. Rule Crim. Proc. 11. A court may reject a plea in exercise of sound judicial discretion. This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor's office have the burden of "letting the left hand know what the right hand is doing" or has done. That the breach of agreement was inadvertent does not lessen its impact. We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case *263 to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty.[2] We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge. The judgment is vacated and the case is remanded for reconsideration not inconsistent with this opinion. MR.

Justice Kennedy

concurring

Moseley v. v. Secret Catalogue, Inc.

https://www.courtlistener.com/opinion/122261/moseley-v-v-secret-catalogue-inc/

https://www.courtlistener.com/api/rest/v3/clusters/122261/

2002-022

As of this date, few courts have reviewed the statute we are considering, the Federal Trademark Dilution Act, 15 U.S. C. § 1125(c), and I agree with the Court that the evidentiary showing required by the statute can be clarified on remand. The conclusion that the VICTORIA'S SECRET mark is a famous mark has not been challenged throughout the litigation, ante, at 425, 432, and seems not to be in question. The remaining issue is what factors are to be considered to establish dilution. For this inquiry, considerable attention should be given, in my view, to the word "capacity" in the statutory phrase that defines dilution as "the lessening of the capacity of a famous mark to identify and distinguish goods or services." 15 U.S. C. § 1127. When a competing mark is first adopted, there will be circumstances when the case can turn on the probable consequences its commercial use will have for the famous mark. In this respect, the word "capacity" imports into the dilution inquiry both the present and the potential power of the famous mark to identify and distinguish goods, and in some cases the fact that this power will be diminished could suffice to show dilution. Capacity is defined as "the power or ability to hold, receive, or accommodate." Webster's Third New International Dictionary 330 (1961); see also Webster's New International Dictionary 396 (2d ed. 1949) ("Power of receiving, containing, or absorbing"); 2 Oxford English Dictionary 857 (2d ed. 1989) ("Ability to receive or contain; holding power"); American Heritage Dictionary 275 (4th ed. 2000) ("The ability to receive, hold, or absorb"). If a mark will erode or lessen the power of the famous mark to give customers the assurance of quality and the full satisfaction they have in knowing they have purchased goods bearing the famous mark, the elements of dilution may be established. Diminishment of the famous mark's capacity can be shown by the probable consequences flowing from use or adoption *436 of the competing mark. This analysis is confirmed by the statutory authorization to obtain injunctive relief. 15 U.S. C. § 1125(c)(2). The essential role of injunctive relief is to "prevent future wrong, although no right has yet been violated." Swift & Co. v. United States, 276 U.S. 311, 326 (1928). Equity principles encourage those who are injured to assert their rights promptly. A holder of a famous mark threatened with diminishment of the mark's capacity to serve its purpose should not be forced to wait until the damage is done and the distinctiveness of the mark has been eroded. In this case, the District Court found that petitioners' trademark had tarnished the VICTORIA'S SECRET mark. App. to Pet. for Cert. 38a-39a. The Court of Appeals affirmed this conclusion and also found dilution by blurring. 259 F.3d 464, 477 (CA6 2001). The Court's opinion does not foreclose injunctive relief if respondents on remand present sufficient evidence of either blurring or tarnishment. With these observations, I join the opinion of the Court.

As of this date, few courts have reviewed the statute we are considering, the Federal Trademark Dilution Act, 15 U.S. C. 1125(c), and I agree with the Court that the evidentiary showing required by the statute can be clarified on remand. The conclusion that the VICTORIA'S SECRET mark is a famous mark has not been challenged throughout the litigation, ante, at 425, 432, and seems not to be in question. The remaining issue is what factors are to be considered to establish dilution. For this inquiry, considerable attention should be given, in my view, to the word "capacity" in the statutory phrase that defines dilution as "the lessening of the capacity of a famous mark to identify and distinguish goods or services." 15 U.S. C. 1127. When a competing mark is first adopted, there will be circumstances when the case can turn on the probable consequences its commercial use will have for the famous mark. In this respect, the word "capacity" imports into the dilution inquiry both the present and the potential power of the famous mark to identify and distinguish goods, and in some cases the fact that this power will be diminished could suffice to show dilution. Capacity is defined as "the power or ability to hold, receive, or accommodate." Webster's Third New International Dictionary 330 (1961); see also Webster's New International Dictionary 396 (2d ed. 1949) ("Power of receiving, containing, or absorbing"); 2 Oxford English Dictionary 857 (2d ed. 1989) ("Ability to receive or contain; holding power"); American Heritage Dictionary 275 (4th ed. 2000) ("The ability to receive, hold, or absorb"). If a mark will erode or lessen the power of the famous mark to give customers the assurance of quality and the full satisfaction they have in knowing they have purchased goods bearing the famous mark, the elements of dilution may be established. Diminishment of the famous mark's capacity can be shown by the probable consequences flowing from use or adoption *436 of the competing mark. This analysis is confirmed by the statutory authorization to obtain injunctive relief. 15 U.S. C. 1125(c)(2). The essential role of injunctive relief is to "prevent future wrong, although no right has yet been violated." Swift & Equity principles encourage those who are injured to assert their rights promptly. A holder of a famous mark threatened with diminishment of the mark's capacity to serve its purpose should not be forced to wait until the damage is done and the distinctiveness of the mark has been eroded. In this case, the District Court found that petitioners' trademark had tarnished the VICTORIA'S SECRET mark. App. to Pet. for Cert. 38a-39a. The Court of Appeals affirmed this conclusion and also found dilution by blurring. The Court's opinion does not foreclose injunctive relief if respondents on remand present sufficient evidence of either blurring or tarnishment. With these observations, I join the opinion of the Court.

Justice Douglas

dissenting

Johnson v. Louisiana

https://www.courtlistener.com/opinion/108538/johnson-v-louisiana/

https://www.courtlistener.com/api/rest/v3/clusters/108538/

1971-110

[*] Appellant in the Louisiana case and petitioners in the Oregon case were convicted by juries that were less than unanimous. This procedure is authorized by both the *381 Louisiana and Oregon Constitutions. Their claim, rejected by the majority, is that this procedure is a violation of their federal constitutional rights. With due respect to the majority, I dissent from this radical departure from American traditions. I The Constitution does not mention unanimous juries. Neither does it mention the presumption of innocence, nor does it say that guilt must be proved beyond a reasonable doubt in all criminal cases. Yet it is almost inconceivable that anyone would have questioned whether proof beyond a reasonable doubt was in fact the constitutional standard. And, indeed, when such a case finally arose we had little difficult disposing of the issue. In re Winship, 397 U.S. 358, 364. The Court, speaking through MR. JUSTICE BRENNAN, stated that: "[The] use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Ibid. *382 I had similarly assumed that there was no dispute that the Federal Constitution required a unanimous jury in all criminal cases. After all, it has long been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous. See American Publishing Co. v. Fisher, 166 U.S. 464, where the Court said that "unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition." Id., at 468. Like proof beyond a reasonable doubt, the issue of unanimous juries in criminal cases simply never arose. Yet in cases dealing with juries it had always been assumed that a unanimous jury was required.[1] See Maxwell v. Dow, 176 U.S. 581, 586; Patton v. United States, 281 U.S. 276, 288; Andres v. United States, 333 U.S. 740, *383 748. Today the bases of those cases are discarded and two centuries of American history are shunted aside.[2] The result of today's decisions is anomalous: though unanimous jury decisions are not required in state trials, they are constitutionally required in federal prosecutions. How can that be possible when both decisions stem from the Sixth Amendment? We held unanimously in 1948 that the Bill of Rights requires a unanimous jury verdict: "Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it." Andres v. United States, 333 U. S., at 748. After today's decisions, a man's property may only be taken away by a unanimous jury vote, yet he can be stripped of his liberty by a lesser standard. How can that result be squared with the law of the land as expressed in the settled and traditional requirements of procedural due process? Rule 31 (a) of the Federal Rules of Criminal Procedure states, "The verdict shall be unanimous." That Rule was made by this Court with the concurrence of Congress pursuant to 18 U.S. C. § 3771. After today a unanimous verdict will be required in a federal prosecution but not in a state prosecution. Yet the source of the right in each case is the Sixth Amendment. I fail *384 to see how with reason we can maintain those inconsistent dual positions. There have, of course, been advocates of the view that the duties imposed on the States by reason of the Bill of Rights operating through the Fourteenth Amendment are a watered-down version of those guarantees. But we held to the contrary in Malloy v. Hogan, 378 U.S. 1, 10-11: "We have held that the guarantees of the First Amendment, Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U.S. 296; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, the prohibition of unreasonable searches and seizures of the Fourth Amendment, Ker v. California, 374 U.S. 23, and the right to counsel guaranteed by the Sixth Amendment, Gideon v. Wainwright, supra, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. In the coerced confession cases, involving the policies of the privilege itself, there has been no suggestion that a confession might be considered coerced if used in a federal but not a state tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a `watered-down, subjective version of the individual guarantees of the Bill of Rights.' " Malloy, of course, not only applied the Self-Incrimination Clause to the States but also stands for the proposition, as mentioned, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." Id., at 11. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 79. The equation of federal and state standards for the Self-Incrimination Clause was expressly reaffirmed in Griffin *385 v. California, 380 U.S. 609, 615; and in Miranda v. Arizona, 384 U.S. 436, 464. Similarly, when the Confrontation Clause was finally made obligatory on the States, Mr. Justice Black for the majority was careful to observe that its guarantee, "like the right against compelled self-incrimination, is `to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' " Pointer v. Texas, 380 U.S. 400, 406. Cf. Dutton v. Evans, 400 U.S. 74, 81. Likewise, when we applied the Double Jeopardy Clause against the States MR. JUSTICE MARSHALL wrote for the Court that "[o]nce it is decided that a particular Bill of Rights guarantee is `fundamental to the American scheme of justice,' Duncan v. Louisiana . . . the same constitutional standards apply against both the State and Federal Governments." Benton v. Maryland, 395 U.S. 784, 795. And, the doctrine of coextensive coverage was followed in holding the Speedy Trial Clause applicable to the States. Klopfer v. North Carolina, 386 U.S. 213, 222. And, in Duncan v. Louisiana, 391 U.S. 145, 158 n. 30, in holding the jury trial guarantee binding in state trials, we noted that its prohibitions were to be identical against both the Federal and State Governments. See also id., at 213 (Fortas, J., concurring). Only once has this Court diverged from the doctrine of coextensive coverage of guarantees brought within the Fourteenth Amendment, and that aberration was later rectified. In Wolf v. Colorado, 338 U.S. 25, it was held that the Fourth Amendment ban against unreasonable and warrantless searches was enforceable against the States but the Court declined to incorporate the Fourth Amendment exclusionary rule of Weeks v. United States, *386 232 U.S. 383. Happily, however, that gap was partially closed in Elkins v. United States, 364 U.S. 206, and then completely bridged in Mapp v. Ohio, 367 U.S. 643. In Mapp we observed that "[t]his Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial . . . ." We concluded that "the same rule" should apply where the Fourth Amendment was concerned. Id., at 656. And, later, we made clear that "the standard for obtaining a search warrant is . . . `the same under the Fourth and Fourteenth Amendments,' " Aguilar v. Texas, 378 U.S. 108, 110; and that the "standard of reasonableness is the same under the Fourth and Fourteenth Amendments." Ker v. California, 374 U.S. 23, 33. It is said, however, that the Sixth Amendment, as applied to the States by reason of the Fourteenth, does not mean what it does in federal proceedings, that it has a "due process" gloss on it, and that that gloss gives the States power to experiment with the explicit or implied guarantees in the Bill of Rights. Mr. Justice Holmes, dissenting in Truax v. Corrigan, 257 U.S. 312, 344, and Mr. Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, thought that the States should be allowed to improvise remedies for social and economic ills. But in that area there are not many "thou shalt nots" in the Constitution and Bill of Rights concerning property rights. The most conspicuous is the Just Compensation Clause of the Fifth Amendment. It has been held applicable with full vigor to the States by reason of the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226. Do today's decisions mean that States may apply a "watered down" version of the Just Compensation *387 Clause? Or are today's decisions limited to a paring down of civil rights protected by the Bill of Rights and up until now as fully applicable to the States as to the Federal Government? These civil rights—whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the "thou shalt nots" in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to "experiment" with the basic rights of people, we open a veritable Pandora's box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.[3] *388 That, however, is only one of my concerns when we make the Bill of Rights, as applied to the States, a "watered down" version of what that charter guarantees. My chief concern is one often expressed by the late Mr. Justice Black, who was alarmed at the prospect of nine men appointed for life sitting as a super-legislative body to determine whether government has gone too far. The balancing was done when the Constitution and Bill of Rights were written and adopted. For this Court to determine, say, whether one person but not another is entitled to free speech is a power never granted it. But that is the ultimate reach of decisions that let the States, subject to our veto, experiment with rights guaranteed by the Bill of Rights. I would construe the Sixth Amendment, when applicable to the States, precisely as I would when applied to the Federal Government. II The plurality approves a procedure which diminishes the reliability of a jury. First, it eliminates the circumstances in which a minority of jurors (a) could have rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prosecutors in Oregon and Louisiana to enjoy a conviction-acquittal ratio substantially greater than that ordinarily returned by unanimous juries. The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion *389 does in fact occasionally occur in States where the unanimous requirement applies: "In roughly one case in ten, the minority eventually succeeds in reversing an initial majority, and these may be cases of special importance."[4] One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect memories, the forensic process of forcing jurors to defend their conflicting recollections and conclusions flushes out many nuances which otherwise would go overlooked. This collective effort to piece together the puzzle of historical truth, however, is cut short as soon as the requisite majority is reached in Oregon and Louisiana. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these States. (There is a suggestion that this may have happened in the 10-2 verdict rendered in only 41 minutes in Apodaca's case.) To be sure, in jurisdictions other than these two States, initial majorities normally prevail in the end, but about a tenth of the time the rough-and-tumble of the jury room operates to reverse completely their preliminary perception of guilt or innocence. The Court now extracts from the jury room this automatic check against hasty factfinding by relieving jurors of the duty to hear out fully the dissenters. It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity. As mentioned earlier, in Apodaca's case, whatever courtesy dialogue transpired could not have lasted more than 41 minutes. I fail to understand *390 why the Court should lift from the States the burden of justifying so radical a departure from an accepted and applauded tradition and instead demand that these defendants document with empirical evidence what has always been thought to be too obvious for further study. To be sure, in Williams v. Florida, 399 U.S. 78, we held that a State could provide a jury less than 12 in number in a criminal trial. We said: "What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members." Id., at 101-102. That rationale of Williams can have no application here. Williams requires that the change be neither more nor less advantageous to either the State or the defendant. It is said that such a showing is satisfied here since a 3:9 (Louisiana) or 2:10 (Oregon) verdict will result in acquittal. Yet experience shows that the less-than-unanimous jury overwhelmingly favors the States. Moreover, even where an initial majority wins the dissent over to its side, the ultimate result in unanimous-jury States may nonetheless reflect the reservations of uncertain jurors. I refer to many compromise verdicts on lesser-included offenses and lesser sentences. Thus, even though a minority may not be forceful enough to carry the day, their doubts may nonetheless cause a majority to exercise caution. Obviously, however, in Oregon and Louisiana, dissident jurors will not have the opportunity through full deliberation to temper the opposing faction's degree of certainty of guilt. The new rule also has an impact on cases in which a unanimous jury would have neither voted to acquit nor *391 to convict, but would have deadlocked. In unanimous-jury States, this occurs about 5.6% of the time. Of these deadlocked juries, Kalven and Zeisel say that 56% contain either one, two, or three dissenters. In these latter cases, the majorities favor the prosecution 44% (of the 56%) but the defendant only 12% (of the 56%).[5] Thus, by eliminating these deadlocks, Louisiana wins 44 cases for every 12 that it loses, obtaining in this band of outcomes a substantially more favorable conviction ratio (3.67 to 1) than the unanimous-jury ratio of slightly less than two guilty verdicts for every acquittal. H. Kalven & H. Zeisel, The American Jury 461, 488 (Table 139) (1966). By eliminating the one-and-two-dissenting-juror cases, Oregon does even better, gaining 4.25 convictions for every acquittal. While the statutes on their face deceptively appear to be neutral, the use of the nonunanimous jury stacks the truth-determining process against the accused. Thus, we take one step more away from the accusatorial system that has been our proud boast. It is my belief that a unanimous jury is necessary if the great barricade known as proof beyond a reasonable *392 doubt is to be maintained. This is not to equate proof beyond a reasonable doubt with the requirement of a unanimous jury. That would be analytically fallacious since a deadlocked jury does not bar, as double jeopardy, retrial for the same offense. See Dreyer v. Illinois, 187 U.S. 71. Nevertheless, one is necessary for a proper effectuation of the other. Compare Mapp v. Ohio, 367 U.S. 643, with Wolf v. Colorado, 338 U.S. 25. Suppose a jury begins with a substantial minority but then in the process of deliberation a sufficient number changes to reach the required 9:3 or 10:2 for a verdict. Is not there still a lingering doubt about that verdict? Is it not clear that the safeguard of unanimity operates in this context to make it far more likely that guilt is established beyond a reasonable doubt? The late Learned Hand said that "as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death."[6] At the criminal level that dread multiplies. Any person faced with the awesome power of government is in great jeopardy, even though innocent. Facts are always elusive and often two-faced. What may appear to one to imply guilt may carry no such overtones to another. Every criminal prosecution crosses treacherous ground, for guilt is common to all men. Yet the guilt of one may be irrelevant to the charge on which he is tried or indicate that if there is to be a penalty, it should be of an extremely light character. The risk of loss of his liberty and the certainty that if found guilty he will be "stigmatized by the conviction" were factors we emphasized in Winship in sustaining the requirement that no man should be condemned where there is reasonable doubt about his guilt. 397 U.S., at 363-364. *393 We therefore have always held that in criminal cases we would err on the side of letting the guilty go free rather than sending the innocent to jail. We have required proof beyond a reasonable doubt as "concrete substance for the presumption of innocence." Id., at 363. That procedure has required a degree of patience on the part of the jurors, forcing them to deliberate in order to reach a unanimous verdict. Up until today the price has never seemed too high. Now a "law and order" judicial mood causes these barricades to be lowered. The requirements of a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are so embedded in our constitutional law and touch so directly all the citizens and are such important barricades of liberty that if they are to be changed they should be introduced by constitutional amendment. Today the Court approves a nine-to-three verdict. Would the Court relax the standard of reasonable doubt still further by resorting to eight-to-four verdicts, or even a majority rule? Moreover, in light of today's holdings and that of Williams v. Florida, in the future would it invalidate three-to-two or even two-to-one convictions? Is the next step the elimination of the presumption of innocence? Mr. Justice Frankfurter, writing in dissent in Leland v. Oregon, 343 U.S. 790, 802-803, said: "It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stirs popular sentiment may lead the legislature of a State, in one of those emotional storms which on occasion sweep over our people, to enact that thereafter an indictment for murder, following attempted rape, should be presumptive proof of guilt and cast upon the defendant the burden of proving beyond a reasonable doubt that he did not do the killing. Can there be any doubt that such a statute would go beyond *394 the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fashion their own penal codes and their own procedures for enforcing them? Why is that so? Because from the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of `due process.' Accordingly there can be no doubt, I repeat, that a State cannot cast upon an accused the duty of establishing beyond a reasonable doubt that his was not the act which caused the death of another." The vast restructuring of American law which is entailed in today's decisions is for political not for judicial action. Until the Constitution is rewritten, we have the present one to support and construe. It has served us well. We lifetime appointees, who sit here only by happenstance, are the last who should sit as a Committee of Revision on rights as basic as those involved in the present cases. Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. What we do today is not in that tradition but more in the tradition of the inquisition. Until amendments are adopted setting new standards, I would let no man be fined or imprisoned in derogation of what up to today was indisputably the law of the land. *395 MR. JUSTICE BRENNAN, with whom MR.

[*] Appellant in the Louisiana case and petitioners in the Oregon case were convicted by juries that were less than unanimous. This procedure is authorized by both the *3 Louisiana and Oregon Constitutions. Their claim, rejected by the majority, is that this procedure is a violation of their federal constitutional rights. With due respect to the majority, I dissent from this radical departure from American traditions. I The Constitution does not mention unanimous juries. Neither does it mention the presumption of innocence, nor does it say that guilt must be proved beyond a reasonable doubt in all criminal cases. Yet it is almost inconceivable that anyone would have questioned whether proof beyond a reasonable doubt was in fact the constitutional standard. And, indeed, when such a case finally arose we had little difficult disposing of the issue. In re Winship, The Court, speaking through MR. JUSTICE BRENNAN, stated that: "[The] use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." *382 I had similarly assumed that there was no dispute that the Federal Constitution required a unanimous jury in all criminal cases. After all, it has long been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous. See American Publishing where the Court said that "unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition." Like proof beyond a reasonable doubt, the issue of unanimous juries in criminal cases simply never arose. Yet in cases dealing with juries it had always been assumed that a unanimous jury was required.[1] See ; ; *383 748. Today the bases of those cases are discarded and two centuries of American history are shunted aside.[2] The result of today's decisions is anomalous: though unanimous jury decisions are not required in state trials, they are constitutionally required in federal prosecutions. How can that be possible when both decisions stem from the Sixth Amendment? We held unanimously in 1948 that the Bill of Rights requires a unanimous jury verdict: "Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it." After today's decisions, a man's property may only be taken away by a unanimous jury vote, yet he can be stripped of his liberty by a lesser standard. How can that result be squared with the law of the land as expressed in the settled and traditional requirements of procedural due process? Rule 31 (a) of the Federal Rules of Criminal Procedure states, "The verdict shall be unanimous." That Rule was made by this Court with the concurrence of Congress pursuant to 18 U.S. C. 3771. After today a unanimous verdict will be required in a federal prosecution but not in a state prosecution. Yet the source of the right in each case is the Sixth Amendment. I fail *384 to see how with reason we can maintain those inconsistent dual positions. There have, of course, been advocates of the view that the duties imposed on the by reason of the Bill of Rights operating through the Fourteenth Amendment are a watered-down version of those guarantees. But we held to the contrary in 10-11: "We have held that the guarantees of the First Amendment, Gitlow v. New ; Louisiana ex rel. the prohibition of unreasonable searches and seizures of the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment, Gideon v. are all to be enforced against the under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. In the coerced confession cases, involving the policies of the privilege itself, there has been no suggestion that a confession might be considered coerced if used in a federal but not a state tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the only a `watered-down, subjective version of the individual guarantees of the Bill of Rights.' " Malloy, of course, not only applied the Self-Incrimination Clause to the but also stands for the proposition, as mentioned, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." See also The equation of federal and state standards for the Self-Incrimination Clause was expressly reaffirmed in Griffin ; and in Similarly, when the Confrontation Clause was finally made obligatory on the Mr. Justice Black for the majority was careful to observe that its guarantee, "like the right against compelled self-incrimination, is `to be enforced against the under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.' " Cf. Likewise, when we applied the Double Jeopardy Clause against the MR. JUSTICE MARSHALL wrote for the Court that "[o]nce it is decided that a particular Bill of Rights guarantee is `fundamental to the American scheme of justice,' the same constitutional standards apply against both the State and Federal Governments." 5. And, the doctrine of coextensive coverage was followed in holding the Speedy Trial Clause applicable to the And, in 158 n. 30, in holding the jury trial guarantee binding in state trials, we noted that its prohibitions were to be identical against both the Federal and State Governments. See also Only once has this Court diverged from the doctrine of coextensive coverage of guarantees brought within the Fourteenth Amendment, and that aberration was later rectified. In it was held that the Fourth Amendment ban against unreasonable and warrantless searches was enforceable against the but the Court declined to incorporate the Fourth Amendment exclusionary rule of Weeks v. United *386 Happily, however, that gap was partially closed in Elkins v. United U.S. 206, and then completely bridged in In Mapp we observed that "[t]his Court has not hesitated to enforce as strictly against the as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial" We concluded that "the same rule" should apply where the Fourth Amendment was concerned. And, later, we made clear that "the standard for obtaining a search warrant is `the same under the Fourth and Fourteenth Amendments,' " 08, ; and that the "standard of reasonableness is the same under the Fourth and Fourteenth Amendments." It is said, however, that the Sixth Amendment, as applied to the by reason of the Fourteenth, does not mean what it does in federal proceedings, that it has a "due process" gloss on it, and that that gloss gives the power to experiment with the explicit or implied guarantees in the Bill of Rights. Mr. Justice Holmes, dissenting in and Mr. Justice Brandeis, dissenting in New State Ice thought that the should be allowed to improvise remedies for social and economic ills. But in that area there are not many "thou shalt nots" in the Constitution and Bill of Rights concerning property rights. The most conspicuous is the Just Compensation Clause of the Fifth Amendment. It has been held applicable with full vigor to the by reason of the Fourteenth Amendment. Chicago, B. & Q. R. Do today's decisions mean that may apply a "watered down" version of the Just Compensation *387 Clause? Or are today's decisions limited to a paring down of civil rights protected by the Bill of Rights and up until now as fully applicable to the as to the Federal Government? These civil rights—whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the the power to experiment in diluting their civil rights? It has long been thought that the "thou shalt nots" in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit to "experiment" with the basic rights of people, we open a veritable Pandora's box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.[3] *388 That, however, is only one of my concerns when we make the Bill of Rights, as applied to the a "watered down" version of what that charter guarantees. My chief concern is one often expressed by the late Mr. Justice Black, who was alarmed at the prospect of nine men appointed for life sitting as a super-legislative body to determine whether government has gone too far. The balancing was done when the Constitution and Bill of Rights were written and adopted. For this Court to determine, say, whether one person but not another is entitled to free speech is a power never granted it. But that is the ultimate reach of decisions that let the subject to our veto, experiment with rights guaranteed by the Bill of Rights. I would construe the Sixth Amendment, when applicable to the precisely as I would when applied to the Federal Government. II The plurality approves a procedure which diminishes the reliability of a jury. First, it eliminates the circumstances in which a minority of jurors (a) could have rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prosecutors in Oregon and Louisiana to enjoy a conviction-acquittal ratio substantially greater than that ordinarily returned by unanimous juries. The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion *389 does in fact occasionally occur in where the unanimous requirement applies: "In roughly one case in ten, the minority eventually succeeds in reversing an initial majority, and these may be cases of special importance."[4] One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect memories, the forensic process of forcing jurors to defend their conflicting recollections and conclusions flushes out many nuances which otherwise would go overlooked. This collective effort to piece together the puzzle of historical truth, however, is cut short as soon as the requisite majority is reached in Oregon and Louisiana. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these (There is a suggestion that this may have happened in the 10-2 verdict rendered in only 41 minutes in Apodaca's case.) To be sure, in jurisdictions other than these two initial majorities normally prevail in the end, but about a tenth of the time the rough-and-tumble of the jury room operates to reverse completely their preliminary perception of guilt or innocence. The Court now extracts from the jury room this automatic check against hasty factfinding by relieving jurors of the duty to hear out fully the dissenters. It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity. As mentioned earlier, in Apodaca's case, whatever courtesy dialogue transpired could not have lasted more than 41 minutes. I fail to understand *390 why the Court should lift from the the burden of justifying so radical a departure from an accepted and applauded tradition and instead demand that these defendants document with empirical evidence what has always been thought to be too obvious for further study. To be sure, in we held that a State could provide a jury less than 12 in number in a criminal trial. We said: "What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members." That rationale of Williams can have no application here. Williams requires that the change be neither more nor less advantageous to either the State or the defendant. It is said that such a showing is satisfied here since a 3:9 (Louisiana) or 2:10 (Oregon) verdict will result in acquittal. Yet experience shows that the less-than-unanimous jury overwhelmingly favors the Moreover, even where an initial majority wins the dissent over to its side, the ultimate result in unanimous-jury may nonetheless reflect the reservations of uncertain jurors. I refer to many compromise verdicts on lesser-included offenses and lesser sentences. Thus, even though a minority may not be forceful enough to carry the day, their doubts may nonetheless cause a majority to exercise caution. Obviously, however, in Oregon and Louisiana, dissident jurors will not have the opportunity through full deliberation to temper the opposing faction's degree of certainty of The new rule also has an impact on cases in which a unanimous jury would have neither voted to acquit nor *391 to convict, but would have deadlocked. In unanimous-jury this occurs about 5.6% of the time. Of these deadlocked juries, Kalven and Zeisel say that 56% contain either one, two, or three dissenters. In these latter cases, the majorities favor the prosecution 44% (of the 56%) but the defendant only 12% (of the 56%).[5] Thus, by eliminating these deadlocks, Louisiana wins 44 cases for every 12 that it loses, obtaining in this band of outcomes a substantially more favorable conviction ratio (3.67 to 1) than the unanimous-jury ratio of slightly less than two guilty verdicts for every acquittal. H. Kalven & H. Zeisel, The American Jury 461, 488 (Table 139) (1966). By eliminating the one-and-two-dissenting-juror cases, Oregon does even better, gaining 4.25 convictions for every acquittal. While the statutes on their face deceptively appear to be neutral, the use of the nonunanimous jury stacks the truth-determining process against the accused. Thus, we take one step more away from the accusatorial system that has been our proud boast. It is my belief that a unanimous jury is necessary if the great barricade known as proof beyond a reasonable *392 doubt is to be maintained. This is not to equate proof beyond a reasonable doubt with the requirement of a unanimous jury. That would be analytically fallacious since a deadlocked jury does not bar, as double jeopardy, retrial for the same offense. See Nevertheless, one is necessary for a proper effectuation of the other. Compare with Suppose a jury begins with a substantial minority but then in the process of deliberation a sufficient number changes to reach the required 9:3 or 10:2 for a verdict. Is not there still a lingering doubt about that verdict? Is it not clear that the safeguard of unanimity operates in this context to make it far more likely that guilt is established beyond a reasonable doubt? The late Learned Hand said that "as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death."[6] At the criminal level that dread multiplies. Any person faced with the awesome power of government is in great jeopardy, even though innocent. Facts are always elusive and often two-faced. What may appear to one to imply guilt may carry no such overtones to another. Every criminal prosecution crosses treacherous ground, for guilt is common to all men. Yet the guilt of one may be irrelevant to the charge on which he is tried or indicate that if there is to be a penalty, it should be of an extremely light character. The risk of loss of his liberty and the certainty that if found guilty he will be "stigmatized by the conviction" were factors we emphasized in Winship in sustaining the requirement that no man should be condemned where there is reasonable doubt about his -. *393 We therefore have always held that in criminal cases we would err on the side of letting the guilty go free rather than sending the innocent to jail. We have required proof beyond a reasonable doubt as "concrete substance for the presumption of innocence." That procedure has required a degree of patience on the part of the jurors, forcing them to deliberate in order to reach a unanimous verdict. Up until today the price has never seemed too high. Now a "law and order" judicial mood causes these barricades to be lowered. The requirements of a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are so embedded in our constitutional law and touch so directly all the citizens and are such important barricades of liberty that if they are to be changed they should be introduced by constitutional amendment. Today the Court approves a nine-to-three verdict. Would the Court relax the standard of reasonable doubt still further by resorting to eight-to-four verdicts, or even a majority rule? Moreover, in light of today's holdings and that of in the future would it invalidate three-to-two or even two-to-one convictions? Is the next step the elimination of the presumption of innocence? Mr. Justice Frankfurter, writing in dissent in 343 U.S. 0, said: "It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stirs popular sentiment may lead the legislature of a State, in one of those emotional storms which on occasion sweep over our people, to enact that thereafter an indictment for murder, following attempted rape, should be presumptive proof of guilt and cast upon the defendant the burden of proving beyond a reasonable doubt that he did not do the killing. Can there be any doubt that such a statute would go beyond *394 the freedom of the under the Due Process Clause of the Fourteenth Amendment, to fashion their own penal codes and their own procedures for enforcing them? Why is that so? Because from the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of `due process.' Accordingly there can be no doubt, I repeat, that a State cannot cast upon an accused the duty of establishing beyond a reasonable doubt that his was not the act which caused the death of another." The vast restructuring of American law which is entailed in today's decisions is for political not for judicial action. Until the Constitution is rewritten, we have the present one to support and construe. It has served us well. We lifetime appointees, who sit here only by happenstance, are the last who should sit as a Committee of Revision on rights as basic as those involved in the present cases. Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. What we do today is not in that tradition but more in the tradition of the inquisition. Until amendments are adopted setting new standards, I would let no man be fined or imprisoned in derogation of what up to today was indisputably the law of the land. *395 MR. JUSTICE BRENNAN, with whom MR.

Justice O'Connor

concurring

Thompson v. Thompson

https://www.courtlistener.com/opinion/111974/thompson-v-thompson/

https://www.courtlistener.com/api/rest/v3/clusters/111974/

1987-014

For the reasons expressed by JUSTICE SCALIA in Part I of his opinion in this case, I join all but the first full paragraph of Part II of the Court's opinion and judgment. JUSTICE SCALIA, concurring in the judgment. I write separately because in my view the Court is not being faithful to current doctrine in its dicta denying the necessity of an actual congressional intent to create a private right of action, and in referring to Cort v. Ash, 422 U.S. 66 (1975), as though its analysis had not been effectively overruled by our later opinions. I take the opportunity to suggest, at the same time, why in my view the law revision that the Court's dicta would undertake moves in precisely the wrong direction. I I agree that the Parental Kidnaping Prevention Act, 28 U.S. C. § 1738A, does not create a private right of action in federal court to determine which of two conflicting child custody decrees is valid. I disagree, however, with the portion of the Court's analysis that flows from the following statement: "Our focus on congressional intent does not mean that we require evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action." Ante, at 179. I am at a loss to imagine what congressional intent to create a private right of action might mean, if it does not mean that Congress had in mind the creation of a private right of action. Our precedents, moreover, give no indication of a secret meaning, but to the contrary seem to use "intent" to mean "intent." For example: *189 "[T]he focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U. S., at 771-772; Trans-america Mortgage Advisors, Inc. v. Lewis, 444 U. S. at 23-24; Touche Ross & Co. v. Redington, [442 U. S.], at 575-576. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide." California v. Sierra Club, 451 U.S. 287, 297 (1981) (WHITE, J.). We have said, to be sure, that the existence of intent may be inferred from various indicia; but that is worlds apart from today's Delphic pronouncement that intent is required but need not really exist. I also find misleading the Court's statement that, in determining the existence of a private right of action, "we have relied on the four factors set out in Cort v. Ash, . . . along with other tools of statutory construction." Ante, at 179. That is not an accurate description of what we have done. It could not be plainer that we effectively overruled the Cort v. Ash analysis in Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18 (1979), converting one of its four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence. Compare Cort v. Ash, supra, at 78, with Trans-america, supra, at 23-24. Finally, the Court's opinion conveys a misleading impression of current law when it proceeds to examine the "context" of the legislation for indication of intent to create a private right of action, after having found no such indication in either text or legislative history. In my view that examination is entirely superfluous, since context alone cannot suffice. We have held context to be relevant to our determination in only two cases — both of which involved statutory language that, in the judicial interpretation of related legislation prior to the subject statute's enactment, or of the same legislation prior *190 to its reenactment, had been held to create private rights of action. See Cannon v. University of Chicago, 441 U.S. 677 (1979); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353 (1982). Since this is not a case where such textual support exists, or even where there is any support in legislative history, the "context" of the enactment is immaterial. Contrary to what the language of today's opinion suggests, this Court has long since abandoned its hospitable attitude towards implied rights of action. In the 23 years since Justice Clark's opinion for the court in J. I. Case Co. v. Borak, 377 U.S. 426 (1964), we have twice narrowed the test for implying a private right, first in Cort v. Ash, supra, itself, and then again in Touche Ross & Co. v. Redington, supra, and Transamerica Mortgage Advisers, Inc. v. Lewis, supra. See also Cannon v. University of Chicago, supra, at 730 (Powell, J., dissenting), and California v. Sierra Club, supra, at 301 (REHNQUIST, J., joined by Burger, C. J., and Stewart and Powell, JJ., concurring). The recent history of our holdings is one of repeated rejection of claims of an implied right. This has been true in 9 of 11 recent private right of action cases heard by this Court, including the instant case. See Touche Ross, supra; Transamerica, supra; Universities Research Assn., Inc. v. Coutu, 450 U.S. 754 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 91-94 (1981); California v. Sierra Club, supra; Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639-640 (1981); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 13-18 (1981); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535-536 (1984); and Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145-148 (1985). But see Merrill Lynch, supra, and Cannon, supra. The Court's opinion exaggerates the difficulty of establishing an implied right when it surmises that "[t]he implied cause of action doctrine would be a virtual dead letter were it limited to correcting drafting errors when Congress simply forgot to codify its evident intention to provide a *191 cause of action." Ante, at 179. That statement rests upon the erroneous premise that one never implies anything except when he forgets to say it expressly. It is true, however, that the congressional intent test for implying private rights of action as it has evolved since the repudiation of Cort v. Ash is much more stringent than the Court's dicta in the present case suggest. II I have found the Court's dicta in the present case particularly provocative of response because it is my view that, if the current state of the law were to be changed, it should be moved in precisely the opposite direction — away from our current congressional intent test to the categorical position that federal private rights of action will not be implied. As Justice Powell observed in his dissent in Cannon, supra, at 730-731: "Under Art. III, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction." (Footnote omitted.) It is, to be sure, not beyond imagination that in a particular case Congress may intend to create a private right of action, but chooses to do so by implication. One must wonder, however, whether the good produced by a judicial rule that accommodates this remote possibility is outweighed by its adverse effects. An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed. Committee reports, *192 floor speeches, and even colloquies between Congressmen, ante, at 184-185, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President. See generally INS v. Chadha, 462 U.S. 919 (1983). It is at best dangerous to assume that all the necessary participants in the law-enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the policies they favor. I suppose all this could be said, to a greater or lesser degree, of all implications that courts derive from statutory language, which are assuredly numerous as the stars. But as the likelihood that Congress would leave the matter to implication decreases, so does the justification for bearing the risk of distorting the constitutional process. A legislative act so significant, and so separable from the remainder of the statute, as the creation of a private right of action seems to me so implausibly left to implication that the risk should not be endured. If we were to announce a flat rule that private rights of action will not be implied in statutes hereafter enacted, the risk that that course would occasionally frustrate genuine legislative intent would decrease from its current level of minimal to virtually zero. It would then be true that the opportunity for frustration of intent "would be a virtual dead letter[,] . . . limited to . . . drafting errors when Congress simply forgot to codify its . . . intention to provide a cause of action." Ante, at 179. I believe, moreover, that Congress would welcome the certainty that such a rule would produce. Surely conscientious legislators cannot relish the current situation, in which the existence or nonexistence of a private right of action depends upon which of the opposing legislative forces may have guessed right as to the implications the statute will be found to contain. If a change is to be made, we should get out of the business of implied private rights of action altogether.

For the reasons expressed by JUSTICE SCALIA in Part I of his opinion in this case, I join all but the first full paragraph of Part II of the Court's opinion and judgment. JUSTICE SCALIA, concurring in the judgment. I write separately because in my view the Court is not being faithful to current doctrine in its dicta denying the necessity of an actual congressional intent to create a private right of action, and in referring to as though its analysis had not been effectively overruled by our later opinions. I take the opportunity to suggest, at the same time, why in my view the law revision that the Court's dicta would undertake moves in precisely the wrong direction. I I agree that the Parental Kidnaping Prevention Act, 28 U.S. C. 1738A, does not create a private right of action in federal court to determine which of two conflicting child custody decrees is valid. I disagree, however, with the portion of the Court's analysis that flows from the following statement: "Our focus on congressional intent does not mean that we require evidence that Members of Congress, in enacting the statute, actually had in mind the creation of a private cause of action." Ante, at 179. I am at a loss to imagine what congressional intent to create a private right of action might mean, if it does not mean that Congress had in mind the creation of a private right of action. Our precedents, moreover, give no indication of a secret meaning, but to the contrary seem to use "intent" to mean "intent." For example: *9 "[T]he focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. -772; Mortgage Advisors, Inc. v. -24; Touche & [442 U. S.], at The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide." We have said, to be sure, that the existence of intent may be inferred from various indicia; but that is worlds apart from today's Delphic pronouncement that intent is required but need not really exist. I also find misleading the Court's statement that, in determining the existence of a private right of action, "we have relied on the four factors set out in along with other tools of statutory construction." Ante, at 179. That is not an accurate description of what we have done. It could not be plainer that we effectively overruled the analysis in Touche & and Mortgage Advisors, Inc. v. converting one of its four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence. Compare with Finally, the Court's opinion conveys a misleading impression of current law when it proceeds to examine the "context" of the legislation for indication of intent to create a private right of action, after having found no such indication in either text or legislative history. In my view that examination is entirely superfluous, since context alone cannot suffice. We have held context to be relevant to our determination in only two cases — both of which involved statutory language that, in the judicial interpretation of related legislation prior to the subject statute's enactment, or of the same legislation prior *190 to its reenactment, had been held to create private rights of action. See ; Merrill Pierce, Fenner & Smith, Since this is not a case where such textual support exists, or even where there is any support in legislative history, the "context" of the enactment is immaterial. Contrary to what the language of today's opinion suggests, this Court has long since abandoned its hospitable attitude towards implied rights of action. In the 23 years since Justice Clark's opinion for the court in J. I. Case we have twice narrowed the test for implying a private right, first in itself, and then again in Touche & and Mortgage Advisers, Inc. v. See also and The recent history of our holdings is one of repeated rejection of claims of an implied right. This has been true in 9 of 11 recent private right of action cases heard by this Court, including the instant case. See Touche Universities Research Assn., Inc. v. ; Northwest Airlines, ; Texas Industries, ; Middlesex County Sewerage 13- ; Daily Income Fund, ; and Massachusetts Mut. Life Ins. But see Merrill and The Court's opinion exaggerates the difficulty of establishing an implied right when it surmises that "[t]he implied cause of action doctrine would be a virtual dead letter were it limited to correcting drafting errors when Congress simply forgot to codify its evident intention to provide a *191 cause of action." Ante, at 179. That statement rests upon the erroneous premise that one never implies anything except when he forgets to say it expressly. It is true, however, that the congressional intent test for implying private rights of action as it has evolved since the repudiation of is much more stringent than the Court's dicta in the present case suggest. II I have found the Court's dicta in the present case particularly provocative of response because it is my view that, if the current state of the law were to be changed, it should be moved in precisely the opposite direction — away from our current congressional intent test to the categorical position that federal private rights of action will not be implied. As Justice Powell observed in his dissent in -731: "Under Art. III, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction." (Footnote omitted.) It is, to be sure, not beyond imagination that in a particular case Congress may intend to create a private right of action, but chooses to do so by implication. One must wonder, however, whether the good produced by a judicial rule that accommodates this remote possibility is outweighed by its adverse effects. An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed. Committee reports, *192 floor speeches, and even colloquies between Congressmen, ante, at 4-5, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President. See generally It is at best dangerous to assume that all the necessary participants in the law-enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the policies they favor. I suppose all this could be said, to a greater or lesser degree, of all implications that courts derive from statutory language, which are assuredly numerous as the stars. But as the likelihood that Congress would leave the matter to implication decreases, so does the justification for bearing the risk of distorting the constitutional process. A legislative act so significant, and so separable from the remainder of the statute, as the creation of a private right of action seems to me so implausibly left to implication that the risk should not be endured. If we were to announce a flat rule that private rights of action will not be implied in statutes hereafter enacted, the risk that that course would occasionally frustrate genuine legislative intent would decrease from its current level of minimal to virtually zero. It would then be true that the opportunity for frustration of intent "would be a virtual dead letter[,] limited to drafting errors when Congress simply forgot to codify its intention to provide a cause of action." Ante, at 179. I believe, moreover, that Congress would welcome the certainty that such a rule would produce. Surely conscientious legislators cannot relish the current situation, in which the existence or nonexistence of a private right of action depends upon which of the opposing legislative forces may have guessed right as to the implications the statute will be found to contain. If a change is to be made, we should get out of the business of implied private rights of action altogether.

Justice Stevens

dissenting

Graham v. Collins

https://www.courtlistener.com/opinion/112810/graham-v-collins/

https://www.courtlistener.com/api/rest/v3/clusters/112810/

1992-023

Neither the race of the defendant nor the race of the victim should play a part in any decision to impose a death sentence. As Justice Thomas points out, there is reason to believe that this imperative was routinely violated in the *501 years before the Court first held that capital punishment may violate the Eighth Amendment, when racial discrimination infected the administration of the death penalty "particularly in Southern States, and most particularly in rape cases." Ante, at 479 (concurring opinion). And Justice Thomas is surely correct that concern about racial discrimination played a significant role in the development of our modern capital sentencing jurisprudence. Ante, at 479— 484. Where I cannot agree with Justice Thomas is in the remarkable suggestion that the Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989), somehow threatens what progress we have made in eliminating racial discrimination and other arbitrary considerations from the capital sentencing determination. In recent years, the Court's capital punishment cases have erected four important safeguards against arbitrary imposition of the death penalty. First, notwithstanding a minority view that proportionality should play no part in our analysis,[1] we have concluded that death is an impermissible punishment for certain offenses. Specifically, neither the crime of rape nor the kind of unintentional homicide referred to by Justice Thomas, ante, at 485, may now support a death sentence. See Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977). Second, as a corollary to the proportionality requirement, the Court has demanded that the States narrow the class of individuals eligible for the death penalty, either through statutory definitions of capital murder, or through statutory specification of aggravating circumstances. This narrowing requirement, like the categorical exclusion of the offense of rape, has significantly minimized the risk of racial bias in the sentencing process.[2] Indeed, as I pointed out in my dissent *502 in McCleskey v. Kemp, 481 U.S. 279 (1987), there is strong empirical evidence that an adequate narrowing of the class of death-eligible offenders would eradicate any significant risk of bias in the imposition of the death penalty.[3] Third, the Court has condemned the use of aggravating factors so vague that they actually enhance the risk that unguided discretion will control the sentencing determination. See, e. g., Maynard v. Cartwright, 486 U.S. 356 (1988) (invalidating "especially heinous, atrocious, or cruel" aggravating circumstance); Godfrey v. Georgia, 446 U.S. 420 (1980) (invalidating "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance). An aggravating factor that invites a judgment as to whether a murder committed by a member of another race is especially "heinous" or "inhuman" may increase, rather than decrease, the chance of arbitrary decisionmaking, by creating room for the influence of personal prejudices. In my view, it is just such aggravating factors, which fail to cabin sentencer discretion *503 in the determination of death eligibility, that pose the "evident danger" of which Justice Thomas warns. See ante, at 479. Finally, at the end of the process, when dealing with the narrow class of offenders deemed death eligible, we insist that the sentencer be permitted to give effect to all relevant mitigating evidence offered by the defendant, in making the final sentencing determination. See, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978). I have already explained my view that once the class of death-eligible offenders is sufficiently narrowed, consideration of relevant, individual mitigating circumstances in no way compromises the "rationalizing principle," ante, at 490 (Thomas, J., concurring), of Furman v. Georgia, 408 U.S. 238 (1972). See Walton v. Arizona, 497 U.S. 639, 715— 719 (1990) (Stevens, J., dissenting). To the contrary, the requirement that sentencing decisions be guided by consideration of relevant mitigating evidence reduces still further the chance that the decision will be based on irrelevant factors such as race. Lockett itself illustrates this point. A young black woman,[4] Lockett was sentenced to death because the Ohio statute "did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime." 438 U.S., at 597. When such relevant facts are excluded from the sentencing determination, there is more, not less, reason to believe that the sentencer will be left to rely on irrational considerations like racial animus. I remain committed to our "mitigating" line of precedent, as a critical protection against arbitrary and discriminatory capital sentencing that is fully consonant with the principles of Furman. Nothing in Justice Thomas' opinion explains *504 why the requirement that sentencing decisions be based on relevant mitigating evidence, as applied by Penry, increases the risk that those decisions will be based on the irrelevant factor of race. More specifically, I do not see how permitting full consideration of a defendant's mental retardation and history of childhood abuse, as in Penry, or of a defendant's youth, as in this case, in any way increases the risk of race-based or otherwise arbitrary decisionmaking. Justice Souter, in whose dissent I join, has demonstrated that the decision in Penry is completely consistent with our capital sentencing jurisprudence. In my view, it is also faithful to the goal of eradicating racial discrimination in capital sentencing, which I share with Justice Thomas.

Neither the race of the defendant nor the race of the victim should play a part in any decision to impose a death sentence. As Justice Thomas points out, there is reason to believe that this imperative was routinely violated in the *501 years before the Court first held that capital punishment may violate the Eighth Amendment, when racial discrimination infected the administration of the death penalty "particularly in Southern States, and most particularly in rape cases." Ante, at 479 (concurring opinion). And Justice Thomas is surely correct that concern about racial discrimination played a significant role in the development of our modern capital sentencing jurisprudence. Ante, at 479— 484. Where I cannot agree with Justice Thomas is in the remarkable suggestion that the Court's decision in somehow threatens what progress we have made in eliminating racial discrimination and other arbitrary considerations from the capital sentencing determination. In recent years, the Court's capital punishment cases have erected four important safeguards against arbitrary imposition of the death penalty. First, notwithstanding a minority view that proportionality should play no part in our analysis,[1] we have concluded that death is an impermissible punishment for certain offenses. Specifically, neither the crime of rape nor the kind of unintentional homicide referred to by Justice Thomas, ante, at 485, may now support a death sentence. See ; Second, as a corollary to the proportionality requirement, the Court has demanded that the States narrow the class of individuals eligible for the death penalty, either through statutory definitions of capital murder, or through statutory specification of aggravating circumstances. This narrowing requirement, like the categorical exclusion of the offense of rape, has significantly minimized the risk of racial bias in the sentencing process.[2] Indeed, as I pointed out in my dissent *502 in there is strong empirical evidence that an adequate narrowing of the class of death-eligible offenders would eradicate any significant risk of bias in the imposition of the death penalty.[3] Third, the Court has condemned the use of aggravating factors so vague that they actually enhance the risk that unguided discretion will control the sentencing determination. See, e. g., ; An aggravating factor that invites a judgment as to whether a murder committed by a member of another race is especially "heinous" or "inhuman" may increase, rather than decrease, the chance of arbitrary decisionmaking, by creating room for the influence of personal prejudices. In my view, it is just such aggravating factors, which fail to cabin sentencer discretion *503 in the determination of death eligibility, that pose the "evident danger" of which Justice Thomas warns. See ante, at 479. Finally, at the end of the process, when dealing with the narrow class of offenders deemed death eligible, we insist that the sentencer be permitted to give effect to all relevant mitigating evidence offered by the defendant, in making the final sentencing determination. See, e. g., ; I have already explained my view that once the class of death-eligible offenders is sufficiently narrowed, consideration of relevant, individual mitigating circumstances in no way compromises the "rationalizing principle," ante, at 490 (Thomas, J., concurring), of See To the contrary, the requirement that sentencing decisions be guided by consideration of relevant mitigating evidence reduces still further the chance that the decision will be based on irrelevant factors such as race. Lockett itself illustrates this point. A young black woman,[4] Lockett was sentenced to death because the Ohio statute "did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime." When such relevant facts are excluded from the sentencing determination, there is more, not less, reason to believe that the sentencer will be left to rely on irrational considerations like racial animus. I remain committed to our "mitigating" line of precedent, as a critical protection against arbitrary and discriminatory capital sentencing that is fully consonant with the principles of Furman. Nothing in Justice Thomas' opinion explains *504 why the requirement that sentencing decisions be based on relevant mitigating evidence, as applied by Penry, increases the risk that those decisions will be based on the irrelevant factor of race. More specifically, I do not see how permitting full consideration of a defendant's mental retardation and history of childhood abuse, as in Penry, or of a defendant's youth, as in this case, in any way increases the risk of race-based or otherwise arbitrary decisionmaking. Justice Souter, in whose dissent I join, has demonstrated that the decision in Penry is completely consistent with our capital sentencing jurisprudence. In my view, it is also faithful to the goal of eradicating racial discrimination in capital sentencing, which I share with Justice Thomas.

Justice Souter

dissenting

United States v. Morrison

https://www.courtlistener.com/opinion/118363/united-states-v-morrison/

https://www.courtlistener.com/api/rest/v3/clusters/118363/

1999-057

The Court says both that it leaves Commerce Clause precedent undisturbed and that the Civil Rights Remedy of the Violence Against Women Act of 1994, 42 U.S. C. § 13981, exceeds Congress's power under that Clause. I find the claims irreconcilable and respectfully dissent.[1] I Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 124-128 (1942); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 277 (1981). The fact of such a substantial effect is not an issue for the courts in the first instance, ibid., but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. See ibid. Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied. Applying those propositions in these cases can lead to only one conclusion. One obvious difference from United States v. Lopez, 514 U.S. 549 (1995), is the mountain of data assembled by Congress, *629 here showing the effects of violence against women on interstate commerce.[2] Passage of the Act in 1994 was preceded by four years of hearings,[3] which included testimony from physicians and law professors;[4] from survivors *630 of rape and domestic violence;[5] and from representatives of state law enforcement and private business.[6] The record includes reports on gender bias from task forces in 21 States,[7] and we have the benefit of specific factual findings *631 in the eight separate Reports issued by Congress and its committees over the long course leading to enactment.[8] Cf. Hodel, 452 U. S., at 278-279 (noting "extended hearings," "vast amounts of testimony and documentary evidence," and "years of the most thorough legislative consideration"). With respect to domestic violence, Congress received evidence for the following findings: "Three out of four American women will be victims of violent crimes sometime during their life." H. R. Rep. No. 103-395, p. 25 (1993) (citing U. S. Dept. of Justice, Report to the Nation on Crime and Justice 29 (2d ed. 1988)). "Violence is the leading cause of injuries to women ages 15 to 44 . . . ." S. Rep. No. 103-138, p. 38 (1993) (citing Surgeon General Antonia Novello, From the Surgeon General, U. S. Public Health Services, 267 JAMA 3132 (1992)). "[A]s many as 50 percent of homeless women and children are fleeing domestic violence." S. Rep. No. 101— 545, p. 37 (1990) (citing E. Schneider, Legal Reform Efforts for Battered Women: Past, Present, and Future (July 1990)). "Since 1974, the assault rate against women has outstripped the rate for men by at least twice for some age groups and far more for others." S. Rep. No. 101— *632 545, at 30 (citing Bureau of Justice Statistics, Criminal Victimization in the United States (1974) (Table 5)). "[B]attering `is the single largest cause of injury to women in the United States.' " S. Rep. No. 101-545, at 37 (quoting Van Hightower & McManus, Limits of State Constitutional Guarantees: Lessons from Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269 (May/June 1989). "An estimated 4 million American women are battered each year by their husbands or partners." H. R. Rep. No. 103-395, at 26 (citing Council on Scientific Affairs, American Medical Assn., Violence Against Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992). "Over 1 million women in the United States seek medical assistance each year for injuries sustained [from] their husbands or other partners." S. Rep. No. 101— 545, at 37 (citing Stark & Flitcraft, Medical Therapy as Repression: The Case of the Battered Woman, Health & Medicine (Summer/Fall 1982). "Between 2,000 and 4,000 women die every year from [domestic] abuse." S. Rep. No. 101-545, at 36 (citing Schneider, supra ). "[A]rrest rates may be as low as 1 for every 100 domestic assaults." S. Rep. No. 101-545, at 38 (citing Dutton, Profiling of Wife Assaulters: Preliminary Evidence for Trimodal Analysis, 3 Violence and Victims 5-30 (1988)). "Partial estimates show that violent crime against women costs this country at least 3 billion—not million, but billion—dollars a year." S. Rep. No. 101-545, at 33 (citing Schneider, supra, at 4). "[E]stimates suggest that we spend $5 to $10 billion a year on health care, criminal justice, and other social costs of domestic violence." S. Rep. No. 103-138, at *633 41 (citing Biden, Domestic Violence: A Crime, Not a Quarrel, Trial 56 (June 1993)). The evidence as to rape was similarly extensive, supporting these conclusions: "[The incidence of] rape rose four times as fast as the total national crime rate over the past 10 years." S. Rep. No. 101-545, at 30 (citing Federal Bureau of Investigation Uniform Crime Reports (1988)). "According to one study, close to half a million girls now in high school will be raped before they graduate." S. Rep. No. 101-545, at 31 (citing R. Warshaw, I Never Called it Rape 117 (1988)). "[One hundred twenty-five thousand] college women can expect to be raped during this—or any—year." S. Rep. No. 101-545, at 43 (citing testimony of Dr. Mary Koss before the Senate Judiciary Committee, Aug. 29, 1990). "[T]hree-quarters of women never go to the movies alone after dark because of the fear of rape and nearly 50 percent do not use public transit alone after dark for the same reason." S. Rep. No. 102-197, p. 38 (1991) (citing M. Gordon & S. Riger, The Female Fear 15 (1989)). "[Forty-one] percent of judges surveyed believed that juries give sexual assault victims less credibility than other crime victims." S. Rep. No. 102-197, at 47 (citing Colorado Supreme Court Task Force on Gender Bias in the Courts, Gender & Justice in the Colorado Courts 91 (1990)). "Less than 1 percent of all [rape] victims have collected damages." S. Rep. No. 102-197, at 44 (citing report by Jury Verdict Research, Inc.). "`[A]n individual who commits rape has only about 4 chances in 100 of being arrested, prosecuted, and found guilty of any offense.' " S. Rep. No. 101-545, at 33, n. 30 *634 (quoting H. Feild & L. Bienen, Jurors and Rape: A Study in Psychology and Law 95 (1980)). "Almost one-quarter of convicted rapists never go to prison and another quarter received sentences in local jails where the average sentence is 11 months." S. Rep. No. 103-138, at 38 (citing Majority Staff Report of Senate Committee on the Judiciary, The Response to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 1993)). "[A]lmost 50 percent of rape victims lose their jobs or are forced to quit because of the crime's severity." S. Rep. No. 102-197, at 53 (citing Ellis, Atkeson, & Calhoun, An Assessment of Long-Term Reaction to Rape, 90 J. Abnormal Psych., No. 3, p. 264 (1981). Based on the data thus partially summarized, Congress found that "crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce . . . [,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products . . . ." H. R. Conf. Rep. No. 103-711, p. 385 (1994). Congress thereby explicitly stated the predicate for the exercise of its Commerce Clause power. Is its conclusion irrational in view of the data amassed? True, the methodology of particular studies may be challenged, and some of the figures arrived at may be disputed. But the sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned. Cf. Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 199 (1997) *635 ("The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process"). Indeed, the legislative record here is far more voluminous than the record compiled by Congress and found sufficient in two prior cases upholding Title II of the Civil Rights Act of 1964 against Commerce Clause challenges. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964), the Court referred to evidence showing the consequences of racial discrimination by motels and restaurants on interstate commerce. Congress had relied on compelling anecdotal reports that individual instances of segregation cost thousands to millions of dollars. See Civil Rights—Public Accommodations, Hearings on S. 1732 before the Senate Committee on Commerce, 88th Cong., 1st Sess., App. V, pp. 1383-1387 (1963). Congress also had evidence that the average black family spent substantially less than the average white family in the same income range on public accommodations, and that discrimination accounted for much of the difference. H. R. Rep. No. 88-914, pt. 2,pp. 9-10, and Table II (1963) (Additional Views on H. R. 7152 of Hon. William M. McCulloch, Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. Charles McC. Mathias, Hon. James E. Bromwell). While Congress did not, to my knowledge, calculate aggregate dollar values for the nationwide effects of racial discrimination in 1964, in 1994 it did rely on evidence of the harms caused by domestic violence and sexual assault, citing annual costs of $3 billion in 1990, see S. Rep. 101-545, at 33, and $5 to $10 billion in 1993, see S. Rep. No. 103-138, at 41.[9] Equally important, though, gender-based violence in the 1990's was shown to operate in a manner similar to racial *636 discrimination in the 1960's in reducing the mobility of employees and their production and consumption of goods shipped in interstate commerce. Like racial discrimination, "[g]ender-based violence bars its most likely targets— women—from full partic[ipation] in the national economy." Id., at 54. If the analogy to the Civil Rights Act of 1964 is not plain enough, one can always look back a bit further. In Wickard, we upheld the application of the Agricultural Adjustment Act to the planting and consumption of homegrown wheat. The effect on interstate commerce in that case followed from the possibility that wheat grown at home for personal consumption could either be drawn into the market by rising prices, or relieve its grower of any need to purchase wheat in the market. See 317 U.S., at 127-129. The Commerce Clause predicate was simply the effect of the production of wheat for home consumption on supply and demand in interstate commerce. Supply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers, see S. Rep. No. 101-545, at 36, and by the reduction in the work force by the 100,000 or more rape victims who lose their jobs each year or are forced to quit, see id., at 56; H. R. Rep. No. 103-395, at 25-26. Violence against women may be found to affect interstate commerce and affect it substantially.[10] *637 II The Act would have passed muster at any time between Wickard in 1942 and Lopez in 1995, a period in which the law enjoyed a stable understanding that congressional power under the Commerce Clause, complemented by the authority of the Necessary and Proper Clause, Art. I, § 8, cl. 18, extended to all activity that, when aggregated, has a substantial effect on interstate commerce. As already noted, this understanding was secure even against the turmoil at the passage of the Civil Rights Act of 1964, in the aftermath of which the Court not only reaffirmed the cumulative effects and rational basis features of the substantial effects test, see Heart of Atlanta, supra, at 258; McClung, supra, at 301-305, but declined to limit the commerce power through a formal distinction between legislation focused on "commerce" and statutes addressing "moral and social wrong[s]," Heart of Atlanta, supra, at 257. The fact that the Act does not pass muster before the Court today is therefore proof, to a degree that Lopez was not, that the Court's nominal adherence to the substantial effects test is merely that. Although a new jurisprudence has not emerged with any distinctness, it is clear that some congressional conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser values than the once-stable doctrine would assign them. These devaluations are accomplished not by any express repudiation of the substantial effects test or its application through the aggregation of individual conduct, but by supplanting rational basis scrutiny with a new criterion of review. *638 Thus the elusive heart of the majority's analysis in these cases is its statement that Congress's findings of fact are "weakened" by the presence of a disfavored "method of reasoning." Ante, at 615. This seems to suggest that the "substantial effects" analysis is not a factual enquiry, for Congress in the first instance with subsequent judicial review looking only to the rationality of the congressional conclusion, but one of a rather different sort, dependent upon a uniquely judicial competence. This new characterization of substantial effects has no support inour cases (the self-fulfilling prophecies of Lopez aside), least of all those the majority cites. Perhaps this explains why the majority is not content to rest on its cited precedent but claims a textual justification for moving toward its new system of congressional deference subject to selective discounts. Thus it purports to rely on the sensible and traditional understanding that the listing in the Constitution of some powers implies the exclusion of others unmentioned. See Gibbons v. Ogden, 9 Wheat. 1, 195 (1824); ante, at 610; The Federalist No. 45, p. 313 (J. Cooke ed. 1961) (J. Madison).[11] The majority stresses that Art. I, § 8,enumerates *639 the powers of Congress, including the commerce power, an enumeration implying the exclusion of powers not enumerated. It follows, for the majority, not only that there must be some limits to "commerce," but that some particular subjects arguably within the commerce power can be identified in advance as excluded, on the basis of characteristics other than their commercial effects. Such exclusions come into sight when the activity regulated is not itself commercial or when the States have traditionally addressed it in the exercise of the general police power, conferred under the state constitutions but never extended to Congress under the Constitution of the Nation, see Lopez, 514 U. S., at 566. Ante, at 615-616. The premise that the enumeration of powers implies that other powers are withheld is sound; the conclusion that some particular categories of subject matter are therefore presumptively beyond the reach of the commerce power is, however, a non sequitur. From the fact that Art. I, § 8, cl. 3, grants an authority limited to regulating commerce, it follows only that Congress may claim no authority under that section to address any subject that does not affect commerce. It does not at all follow that an activity affecting commerce nonetheless falls outside the commerce power, depending on the specific character of the activity, or the authority of a State to regulate it along with Congress.[12] My disagreement *640 with the majority is not, however, confined to logic, for history has shown that categorical exclusions have proven as unworkable in practice as they are unsupportable in theory. A Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare "noncommercial" primary activity beyond or presumptively beyond the scope of the commerce power. That variant of categorical approach is not, however, the sole textually permissible way of defining the scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the final sentence of Art. I, § 8, authorizing Congress to make "all Laws . . . necessary and proper" to give effect to its enumerated powers such as commerce. See United States v. Darby, 312 U.S. 100, 118 (1941) ("The power of Congress . . . extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce"). Accordingly, for significant periods of our history, the Court has defined the commerce power as plenary, unsusceptible to categorical exclusions, and this was the view expressed throughout the latter part of the 20th century in the substantial effects test. These two conceptions of the commerce power, plenary and categorically limited, are in fact old rivals, and today's revival of their competition summons up familiar history, a brief reprise of which may be helpful in posing what I take to be the key question going to the legitimacy of the majority's decision to breathe new life into the approach of categorical limitation. *641 Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, 9 Wheat., at 193-194, construed the commerce power from the start with "a breadth never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall's view of interstate commerce; Wickard applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall's indication that the commerce power may be understood by its exclusion of subjects, among others, "which do not affect other States," Gibbons, 9 Wheat., at 195. This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence. See, e. g., id., at 197; Nashville, C. & St. L. R. Co. v. Alabama, 128 U.S. 96, 99-100 (1888); Lottery Case, 188 U.S. 321, 353 (1903); Minnesota Rate Cases, 230 U.S. 352, 398 (1913); United States v. California, 297 U.S. 175, 185 (1936); United States v. Darby, supra, at 115; Heart of Atlanta Motel, Inc. v. United States, 379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through Lopez, as summed up by Justice Harlan: "`Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' " Maryland v. Wirtz, 392 U.S. 183, 190 (1968) (quoting Katzenbach v. McClung, 379 U. S., at 303-304). Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today's attempt to distinguish between primary activities affecting commerce in terms of the relatively commercial or noncommercial character of the primary conduct proscribed comes with the pedigree of near tragedy that I outlined in *642 United States v. Lopez, 514 U. S., at 603 (dissenting opinion). In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as "mining," "production," "manufacturing," and union membership to be outside the definition of "commerce" and by limiting application of the effects test to "direct" rather than "indirect" commercial consequences. See, e. g., United States v. E. C. Knight Co., 156 U.S. 1 (1895) (narrowly construing the Sherman Antitrust Act in light of the distinction between "commerce" and "manufacture"); In re Heff, 197 U.S. 488, 505-506 (1905) (stating that Congress could not regulate the intrastate sale of liquor); The Employers' Liability Cases, 207 U.S. 463, 495-496 (1908) (invalidating law governing tort liability for common carriers operating in interstate commerce because the effects on commerce were indirect); Adair v. United States, 208 U.S. 161 (1908) (holding that labor union membership fell outside "commerce"); Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating law prohibiting interstate shipment of goods manufactured with child labor as a regulation of "manufacture"); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 545— 548 (1935) (invalidating regulation of activities that only "indirectly" affected commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 368-369 (1935) (invalidating pension law for railroad workers on the grounds that conditions of employment were only indirectly linked to commerce); Carter v. Carter Coal Co., 298 U.S. 238, 303-304 (1936) (holding that regulation of unfair labor practices in mining regulated "production," not "commerce"). Since adherence to these formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937, one might reasonably have doubted that Members of this Court would ever again toy with a return to the days before NLRB v. Jones & Laughlin Steel Corp., *643 301 U.S. 1 (1937), which brought the earlier and nearly disastrous experiment to an end. And yet today's decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer, supra, at 271— 272, but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257, and Darby, 312 U. S., at 115. Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm was not "commerce" in the common vocabulary,[13] but that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected commerce substantially. Just a few years before *644 Wickard, however, it had certainly been no less obvious that "mining" practices could substantially affect commerce, even though Carter Coal Co., supra, had held mining regulation beyond the national commerce power. When we try to fathom the difference between the two cases, it is clear that they did not go in different directions because the Carter Coal Court could not understand a causal connection that the Wickard Court could grasp; the difference, rather, turned on the fact that the Court in Carter Coal had a reason for trying to maintain its categorical, formalistic distinction, while that reason had been abandoned by the time Wickard was decided. The reason was laissez-faire economics, the point of which was to keep government interference to a minimum. See Lopez, supra, at 605-606 (Souter, J., dissenting). The Court in Carter Coal was still trying to create a laissez-faire world out of the 20thcentury economy, and formalistic commercial distinctions were thought to be useful instruments in achieving that object. The Court in Wickard knew it could not do any such thing and in the aftermath of the New Deal had long since stopped attempting the impossible. Without the animating economic theory, there was no point in contriving formalisms in a war with Chief Justice Marshall's conception of the commerce power. If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated economic world. The answer is that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual *645 States see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power. This conception is the subject of the majority's second categorical discount applied today to the facts bearing on the substantial effects test. B The Court finds it relevant that the statute addresses conduct traditionally subject to state prohibition under domestic criminal law, a fact said to have some heightened significance when the violent conduct in question is not itself aimed directly at interstate commerce or its instrumentalities. Ante, at 609. Again, history seems to be recycling, for the theory of traditional state concern as grounding a limiting principle has been rejected previously, and more than once. It was disapproved in Darby, 312 U. S., at 123-124, and held insufficient standing alone to limit the commerce power in Hodel, 452 U. S., at 276-277. In the particular context of the Fair Labor Standards Act it was rejected in Maryland v. Wirtz, 392 U.S. 183 (1968), with the recognition that "[t]here is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other." Id., at 195 (internal quotation marks omitted). The Court held it to be "clear that the Federal Government, when acting within a delegated power, may override countervailing state interests, whether these be described as `governmental' or `proprietary' in character." Ibid. While Wirtz was later overruled by National League of Cities v. Usery, 426 U. S. *646 833 (1976), that case was itself repudiated in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), which held that the concept of "traditional governmental function" (as an element of the immunity doctrine under Hodel ) was incoherent, there being no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other. 469 U.S., at 546-547. The effort to carve out inviolable state spheres within the spectrum of activities substantially affecting commerce was, of course, just as irreconcilable with Gibbons `s explanation of the national commerce power as being as "absolut[e] as it would be in a single government," 9 Wheat., at 197.[14] *647 The objection to reviving traditional state spheres of action as a consideration in commerce analysis, however, not only rests on the portent of incoherence, but is compounded by a further defect just as fundamental. The defect, in essence, is the majority's rejection of the Founders' considered judgment that politics, not judicial review, should mediate between state and national interests as the strength and legislative jurisdiction of the National Government inevitably increased through the expected growth of the national economy.[15] Whereas today's majority takes a leaf from the book of the old judicial economists in saying that the Court should somehow draw the line to keep the federal relationship in a proper balance, Madison, Wilson, and Marshall understood the Constitution very differently. Although Madison had emphasized the conception of a National Government of discrete powers (a conception that a number of the ratifying conventions thought was too indeterminate to protect civil liberties),[16] Madison himself must have sensed the potential scope of some of the powers granted (such as the authority to regulate commerce), for he *648 took care in The Federalist No. 46 to hedge his argument for limited power by explaining the importance of national politics in protecting the States' interests. The National Government "will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the prerogatives of their governments." The Federalist No. 46, p. 319 (J. Cooke ed. 1961). James Wilson likewise noted that "it was a favorite object in the Convention" to secure the sovereignty of the States, and that it had been achieved through the structure of the Federal Government. 2 Elliot's Debates 438-439.[17] The Framers of the Bill of Rights, in turn, may well have sensed that Madison and Wilson were right about politics as the determinant of the federal balance within the broad limits of a power like commerce, for they formulated the Tenth Amendment without any provision comparable to the specific guarantees proposed for individual liberties.[18] In any case, this Court recognized the political component of federalism in the seminal Gibbons opinion. After declaring the plenary character of congressional power within the sphere of activity affecting commerce, the Chief Justice spoke for the Court in explaining that there was only one restraint on its valid exercise: *649 "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments." Gibbons, 9 Wheat., at 197. Politics as the moderator of the congressional employment of the commerce power was the theme many years later in Wickard, for after the Court acknowledged the breadth of the Gibbons formulation it invoked Chief Justice Marshall yet again in adding that "[h]e made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than judicial processes." Wickard, 317 U. S., at 120 (citation omitted). Hence, "conflicts of economic interest . . . are wisely left under our system to resolution by Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do." Id., at 129 (footnote omitted). As with "conflicts of economic interest," so with supposed conflicts of sovereign political interests implicated by the Commerce Clause: the Constitution remits them to politics. The point can be put no more clearly than the Court put it the last time it repudiated the notion that some state activities categorically defied the commerce power as understood in accordance with generally accepted concepts. After confirming Madison's and Wilson's views with a recitation of the sources of state influence in the structure of the National Constitution, Garcia, 469 U. S., at 550-552, the Court disposed of the possibility of identifying "principled constitutional limitations on the scope of Congress' Commerce Clause powers over the States merely *650 by relying on a priori definitions of state sovereignty," id., at 548. It concluded that "the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Id., at 552. The Garcia Court's rejection of "judicially created limitations" in favor of the intended reliance on national politics was all the more powerful owing to the Court's explicit recognition that in the centuries since the framing the relative powers of the two sovereign systems have markedly changed. Nationwide economic integration is the norm, the national political power has been augmented by its vast revenues, and the power of the States has been drawn down by the Seventeenth Amendment, eliminating selection of senators by state legislature in favor of direct election. The Garcia majority recognized that economic growth and the burgeoning of federal revenue have not amended the Constitution, which contains no circuit breaker to preclude the political consequences of these developments. Nor is there any justification for attempts to nullify the natural political impact of the particular amendment that was adopted. The significance for state political power of ending state legislative selection of senators was no secret in 1913, and the amendment was approved despite public comment on that very issue. Representative Franklin Bartlett, after quoting Madison's Federalist No. 62, as well as remarks by George Mason and John Dickinson during the Constitutional Convention, concluded, "It follows, therefore, that the *651 framers of the Constitution, were they present in this House to-day, would inevitably regard this resolution as a most direct blow at the doctrine of State's rights and at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all share in the General Government, you annihilate its federative importance." 26 Cong. Rec. 7774 (1894). Massachusetts Senator George Hoar likewise defended indirect election of the Senate as "a great security for the rights of the States." S. Doc. No. 232, 59th Cong., 1st Sess., 21 (1906). And Elihu Root warned that if the selection of senators should be taken from state legislatures, "the tide that now sets toward the Federal Government will swell in volume and power." 46 Cong. Rec. 2243 (1911). "The time will come," he continued, "when the Government of the United States will be driven to the exercise of more arbitrary and unconsidered power, will be driven to greater concentration, will be driven to extend its functions into the internal affairs of the States." Ibid. See generally Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment, 36 San Diego L. Rev. 671, 712-714 (1999) (noting federalism-based objections to the Seventeenth Amendment). These warnings did not kill the proposal; the Amendment was ratified, and today it is only the ratification, not the predictions, which this Court can legitimately heed.[19] *652 Amendments that alter the balance of power between the National and State Governments, like the Fourteenth, or that change the way the States are represented within the Federal Government, like the Seventeenth, are not rips in the fabric of the Framers' Constitution, inviting judicial repairs. The Seventeenth Amendment may indeed have lessened the enthusiasm of the Senate to represent the States as discrete sovereignties, but the Amendment did not convert the judiciary into an alternate shield against the commerce power. C The Court's choice to invoke considerations of traditional state regulation in these cases is especially odd in light of a distinction recognized in the now-repudiated opinion for the Court in Usery. In explaining that there was no inconsistency between declaring the States immune to the commerce power exercised in the Fair Labor Standards Act, but subject to it under the Economic Stabilization Act of 1970, as decided in Fry v. United States, 421 U.S. 542 (1975), the Court spoke of the latter statute as dealing with a serious threat affecting all the political components of the federal *653 system, "which only collective action by the National Government might forestall." Usery, 426 U. S., at 853. Today's majority, however, finds no significance whatever in the state support for the Act based upon the States' acknowledged failure to deal adequately with gender-based violence in state courts, and the belief of their own law enforcement agencies that national action is essential.[20] The National Association of Attorneys General supported the Act unanimously, see Violence Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37-38 (1991), and Attorneys General from 38 States urged Congress to enact the Civil Rights Remedy, representing that "the current system for dealing with violence against women is inadequate," see Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 34-36 (1993). It was against this record of failure at the state level that the Act was passed to provide the choice of a federal forum in place of the state-court systems found inadequate to stop gender-biased violence. See Women and Violence, Hearing before the Senate Committee on the Judiciary, 101st Cong., 2d Sess., 2 (1990) (statement of Sen. Biden) (noting importance of federal forum).[21] The Act accordingly offers a federal civil rights remedy aimed exactly *654 at violence against women, as an alternative to the generic state tort causes of action found to be poor tools of action by the state task forces. See S. Rep. No. 101-545, at 45 (noting difficulty of fitting gender-motivated crimes into commonlaw categories). As the 1993 Senate Report put it, "The Violence Against Women Act is intended to respond both to the underlying attitude that this violence is somehow less serious than other crime and to the resulting failure of our criminal justice system to address such violence. Its goals are both symbolic and practical . . . ." S. Rep. No. 103-138, at 38. The collective opinion of state officials that the Act was needed continues virtually unchanged, and when the Civil Rights Remedy was challenged in court, the States came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents' side. It is, then, not the least irony of these cases that the States will be forced to enjoy the new federalism whether they want it or not. For with the Court's decision today, Antonio Morrison, like Carter Coal `s James Carter before him, has "won the states' rights plea against the states themselves." R. Jackson, The Struggle for Judicial Supremacy 160 (1941). III All of this convinces me that today's ebb of the commerce power rests on error, and at the same time leads me to doubt that the majority's view will prove to be enduring law. There is yet one more reason for doubt. Although we sense the presence of Carter Coal, Schechter, and Usery once again, the majority embraces them only at arm's-length. Where such decisions once stood for rules, today's opinion points to considerations by which substantial effects are discounted. Cases standing for the sufficiency of substantial effects are not overruled; cases overruled since 1937 are not quite revived. The Court's thinking betokens less clearly *655 a return to the conceptual straitjackets of Schechter and Carter Coal and Usery than to something like the unsteady state of obscenity law between Redrup v. New York, 386 U.S. 767 (1967) (per curiam), and Miller v. California, 413 U.S. 15 (1973), a period in which the failure to provide a workable definition left this Court to review each case ad hoc. See id., at 22, n. 3; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 706-708 (1968) (Harlan, J., dissenting). As our predecessors learned then, the practice of such ad hoc review cannot preserve the distinction between the judicial and the legislative, and this Court, in any event, lacks the institutional capacity to maintain such a regime for very long. This one will end when the majority realizes that the conception of the commerce power for which it entertains hopes would inevitably fail the test expressed in Justice Holmes's statement that "[t]he first call of a theory of law is that it should fit the facts." O. Holmes, The Common Law 167 (Howe ed. 1963). The facts that cannot be ignored today are the facts of integrated national commerce and a political relationship between States and Nation much affected by their respective treasuries and constitutional modifications adopted by the people. The federalism of some earlier time is no more adequate to account for those facts today than the theory of laissez-faire was able to govern the national economy 70 years ago.

The Court says both that it leaves Commerce Clause precedent undisturbed and that the Civil Rights Remedy of the Violence Against Women Act of 4, 42 U.S. C. 11, exceeds Congress's power under that Clause. I find the claims irreconcilable and respectfully dissent.[1] I Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. See ; The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. See Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied. Applying those propositions in these cases can lead to only one conclusion. One obvious difference from United is the mountain of data assembled by Congress, *629 here showing the effects of violence against women on interstate commerce.[2] Passage of the Act in 4 was preceded by four years of hearings,[3] which included testimony from physicians and law professors;[4] from survivors *630 of rape and domestic violence;[5] and from representatives of state law enforcement and private business.[6] The record includes reports on gender bias from task forces in 21[7] and we have the benefit of specific factual findings *631 in the eight separate Reports issued by Congress and its committees over the long course leading to enactment.[8] Cf. -279 With respect to domestic violence, Congress received evidence for the following findings: "Three out of four American women will be victims of violent crimes sometime during their life." H. R. Rep. No. 103-395, p. 25 (3) (citing U. S. Dept. of Justice, Report to the Nation on Crime and Justice 29 (2d ed. 1988)). "Violence is the leading cause of injuries to women ages 15 to 44" S. Rep. No. 103-138, p. 38 (3) ). "[A]s many as 50 percent of homeless women and children are fleeing domestic violence." S. Rep. No. 101— 545, p. 37 (0) (citing E. Legal Reform Efforts for Battered Women: Past, Present, and Future (July 0)). "Since 1974, the assault rate against women has outstripped the rate for men by at least twice for some age groups and far more for others." S. Rep. No. 101— *632 545, at 30 (citing Bureau of Justice Statistics, Criminal Victimization in the United (1974) (Table 5)). "[B]attering `is the single largest cause of injury to women in the United' " S. Rep. No. 101-545, at 37 (quoting Van Hightower & McManus, Limits of State Constitutional Guarantees: Lessons from Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269 (May/June 1989). "An estimated 4 million American women are battered each year by their husbands or partners." H. R. Rep. No. 103-395, at 26 "Over 1 million women in the United seek medical assistance each year for injuries sustained [from] their husbands or other partners." S. Rep. No. 101— 545, at 37 (citing Stark & Flitcraft, Medical Therapy as Repression: The Case of the Battered Woman, Health & Medicine (Summer/Fall 1982). "Between 2,000 and 4,000 women die every year from [domestic] abuse." S. Rep. No. 101-545, at 36 (citing ). "[A]rrest rates may be as low as 1 for every 100 domestic assaults." S. Rep. No. 101-545, at 38 (citing Dutton, Profiling of Wife Assaulters: Preliminary Evidence for Trimodal Analysis, 3 Violence and Victims 5-30 (1988)). "Partial estimates show that violent crime against women costs this country at least 3 billion—not million, but billion—dollars a year." S. Rep. No. 101-545, at 33 (citing ). "[E]stimates suggest that we spend $5 to $10 billion a year on health care, criminal justice, and other social costs of domestic violence." S. Rep. No. 103-138, at *633 41 (citing Biden, Domestic Violence: A Crime, Not a Quarrel, Trial 56 (June 3)). The evidence as to rape was similarly extensive, supporting these conclusions: "[The incidence of] rape rose four times as fast as the total national crime rate over the past 10 years." S. Rep. No. 101-545, at 30 (citing Federal Bureau of Investigation Uniform Crime Reports (1988)). "According to one study, close to half a million girls now in high school will be raped before they graduate." S. Rep. No. 101-545, at 31 (citing R. Warshaw, I Never Called it Rape 117 (1988)). "[One hundred twenty-five thousand] college women can expect to be raped during this—or any—year." S. Rep. No. 101-545, 3 (citing testimony of Dr. Mary Koss before the Senate Judiciary Committee, Aug. 29, 0). "[T]hree-quarters of women never go to the movies alone after dark because of the fear of rape and nearly 50 percent do not use public transit alone after dark for the same reason." S. Rep. No. 102-197, p. 38 (1) (citing M. Gordon & S. Riger, The Female Fear 15 (1989)). "[Forty-one] percent of judges surveyed believed that juries give sexual assault victims less credibility than other crime victims." S. Rep. No. 102-197, 7 (citing Colorado Supreme Court Task Force on Gender Bias in the Courts, Gender & Justice in the Colorado Courts 91 (0)). "Less than 1 percent of all [rape] victims have collected damages." S. Rep. No. 102-197, 4 (citing report by Jury Verdict Research, Inc.). "`[A]n individual who commits rape has only about 4 chances in 100 of being arrested, prosecuted, and found guilty of any offense.' " S. Rep. No. 101-545, at 33, n. 30 *634 (quoting H. Feild & L. Bienen, Jurors and Rape: A Study in Psychology and Law 95 (1980)). "Almost one-quarter of convicted rapists never go to prison and another quarter received sentences in local jails where the average sentence is 11 months." S. Rep. No. 103-138, at 38 (citing Majority Staff Report of Senate Committee on the Judiciary, The Response to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 3)). "[A]lmost 50 percent of rape victims lose their jobs or are forced to quit because of the crime's severity." S. Rep. No. 102-197, at 53 Based on the data thus partially summarized, Congress found that "crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce [,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products" H. R. Conf. Rep. No. 103-711, p. 385 (4). Congress thereby explicitly stated the predicate for the exercise of its Commerce Clause power. Is its conclusion irrational in view of the data amassed? True, the methodology of particular studies may be challenged, and some of the figures arrived at may be disputed. But the sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned. Cf. Turner Broadcasting System, *635 ("The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process"). Indeed, the legislative record here is far more voluminous than the record compiled by Congress and found sufficient in two prior cases upholding Title II of the Civil Rights Act of 1964 against Commerce Clause challenges. In Heart of Motel, and the Court referred to evidence showing the consequences of racial discrimination by motels and restaurants on interstate commerce. Congress had relied on compelling anecdotal reports that individual instances of segregation cost thousands to millions of dollars. See Civil Rights—Public Accommodations, Hearings on S. 1732 before the Senate Committee on Commerce, 88th Cong., 1st Sess., App. V, pp. 1383-1387 (1963). Congress also had evidence that the average black family spent substantially less than the average white family in the same income range on public accommodations, and that discrimination accounted for much of the difference. H. R. Rep. No. 88-914, pt. 2,pp. 9-10, and Table II (1963) (Additional Views on H. R. 7152 of Hon. William M. McCulloch, Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. Charles McC. Mathias, Hon. James E. Bromwell). While Congress did not, to my knowledge, calculate aggregate dollar values for the nationwide effects of racial discrimination in 1964, in 4 it did rely on evidence of the harms caused by domestic violence and sexual assault, citing annual costs of $3 billion in 0, see S. Rep. 101-545, at 33, and $5 to $10 billion in 3, see S. Rep. No. 103-138, 1.[9] Equally important, though, gender-based violence in the 0's was shown to operate in a manner similar to racial *636 discrimination in the 1960's in reducing the mobility of employees and their production and consumption of goods shipped in interstate commerce. Like racial discrimination, "[g]ender-based violence bars its most likely targets— women—from full partic[ipation] in the national economy." If the analogy to the Civil Rights Act of 1964 is not plain enough, one can always look back a bit further. In Wickard, we upheld the application of the Agricultural Adjustment Act to the planting and consumption of homegrown wheat. The effect on interstate commerce in that case followed from the possibility that wheat grown at home for personal consumption could either be drawn into the market by rising prices, or relieve its grower of any need to purchase wheat in the market. See -129. The Commerce Clause predicate was simply the effect of the production of wheat for home consumption on supply and demand in interstate commerce. Supply and demand for goods in interstate commerce will also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers, see S. Rep. No. 101-545, at 36, and by the reduction in the work force by the 100,000 or more rape victims who lose their jobs each year or are forced to quit, see ; H. R. Rep. No. 103-395, at 25-26. Violence against women may be found to affect interstate commerce and affect it substantially.[10] *637 II The Act would have passed muster at any time between Wickard in 1942 and in 5, a period in which the law enjoyed a stable understanding that congressional power under the Commerce Clause, complemented by the authority of the Necessary and Proper Clause, Art. I, 8, cl. 18, extended to all activity that, when aggregated, has a substantial effect on interstate commerce. As already noted, this understanding was secure even against the turmoil at the passage of the Civil Rights Act of 1964, in the aftermath of which the Court not only reaffirmed the cumulative effects and rational basis features of the substantial effects test, see Heart of ; but declined to limit the commerce power through a formal distinction between legislation focused on "commerce" and statutes addressing "moral and social wrong[s]," Heart of The fact that the Act does not pass muster before the Court today is therefore proof, to a degree that was not, that the Court's nominal adherence to the substantial effects test is merely that. Although a new jurisprudence has not emerged with any distinctness, it is clear that some congressional conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser values than the once-stable doctrine would assign them. These devaluations are accomplished not by any express repudiation of the substantial effects test or its application through the aggregation of individual conduct, but by supplanting rational basis scrutiny with a new criterion of review. *638 Thus the elusive heart of the majority's analysis in these cases is its statement that Congress's findings of fact are "weakened" by the presence of a disfavored "method of reasoning." Ante, at 615. This seems to suggest that the "substantial effects" analysis is not a factual enquiry, for Congress in the first instance with subsequent judicial review looking only to the rationality of the congressional conclusion, but one of a rather different sort, dependent upon a uniquely judicial competence. This new characterization of substantial effects has no support inour cases (the self-fulfilling prophecies of aside), least of all those the majority cites. Perhaps this explains why the majority is not content to rest on its cited precedent but claims a textual justification for moving toward its new system of congressional deference subject to selective discounts. Thus it purports to rely on the sensible and traditional understanding that the listing in the Constitution of some powers implies the exclusion of others unmentioned. See ; ante, at 610; The Federalist No. 45, p. 313 (J. Cooke ed. 1961) (J. Madison).[11] The majority stresses that Art. I, 8,enumerates *639 the powers of Congress, including the commerce power, an enumeration implying the exclusion of powers not enumerated. It follows, for the majority, not only that there must be some limits to "commerce," but that some particular subjects arguably within the commerce power can be identified in advance as excluded, on the basis of characteristics other than their commercial effects. Such exclusions come into sight when the activity regulated is not itself commercial or when the have traditionally addressed it in the exercise of the general police power, conferred under the state constitutions but never extended to Congress under the Constitution of the Nation, see 514 U. S., 6. Ante, at 615-616. The premise that the enumeration of powers implies that other powers are withheld is sound; the conclusion that some particular categories of subject matter are therefore presumptively beyond the reach of the commerce power is, however, a non sequitur. From the fact that Art. I, 8, cl. 3, grants an authority limited to regulating commerce, it follows only that Congress may claim no authority under that section to address any subject that does not affect commerce. It does not at all follow that an activity affecting commerce nonetheless falls outside the commerce power, depending on the specific character of the activity, or the authority of a State to regulate it along with Congress.[12] My disagreement *640 with the majority is not, however, confined to logic, for history has shown that categorical exclusions have proven as unworkable in practice as they are unsupportable in theory. A Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare "noncommercial" primary activity beyond or presumptively beyond the scope of the commerce power. That variant of categorical approach is not, however, the sole textually permissible way of defining the scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the final sentence of Art. I, 8, authorizing Congress to make "all Laws necessary and proper" to give effect to its enumerated powers such as commerce. See United ("The power of Congress extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce"). Accordingly, for significant periods of our history, the Court has defined the commerce power as plenary, unsusceptible to categorical exclusions, and this was the view expressed throughout the latter part of the 20th century in the substantial effects test. These two conceptions of the commerce power, plenary and categorically limited, are in fact old rivals, and today's revival of their competition summons up familiar history, a brief reprise of which may be helpful in posing what I take to be the key question going to the legitimacy of the majority's decision to breathe new life into the approach of categorical limitation. *641 Chief Justice Marshall's seminal opinion in -194, construed the commerce power from the start with "a breadth never yet exceeded," In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall's view of interstate commerce; Wickard applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall's indication that the commerce power may be understood by its exclusion of subjects, among others, "which do not affect other" Gibbons, 9 Wheat., at This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence. See, e. g., ; Nashville, C. & St. L. R. ; Lottery Case, ; Minnesota Rate Cases, ; United ; United ; Heart of Motel, ; v. And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through as summed up by Justice Harlan: "`Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' " (quoting -304). Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today's attempt to distinguish between primary activities affecting commerce in terms of the relatively commercial or noncommercial character of the primary conduct proscribed comes with the pedigree of near tragedy that I outlined in *642 United In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as "mining," "production," "manufacturing," and union membership to be outside the definition of "commerce" and by limiting application of the effects test to "direct" rather than "indirect" commercial consequences. See, e. g., United v. E. C. Knight Co., ; In re Heff, (5) ; The Employers' Liability Cases, (8) ; Adair v. United (8) ; ; A. L. A. Schechter Poultry Corp. v. United ; Railroad Retirement ; Since adherence to these formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937, one might reasonably have doubted that Members of this Court would ever again toy with a return to the days before which brought the earlier and nearly disastrous experiment to an end. And yet today's decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the concurrence, see is cousin to the intent-based analysis employed in at 271— 272, but rejected for Commerce Clause purposes in Heart of and 312 U. S., Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm was not "commerce" in the common vocabulary,[13] but that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected commerce substantially. Just a few years before *644 Wickard, however, it had certainly been no less obvious that "mining" practices could substantially affect commerce, even though Carter Coal Co., had held mining regulation beyond the national commerce power. When we try to fathom the difference between the two cases, it is clear that they did not go in different directions because the Carter Coal Court could not understand a causal connection that the Wickard Court could grasp; the difference, rather, turned on the fact that the Court in Carter Coal had a reason for trying to maintain its categorical, formalistic distinction, while that reason had been abandoned by the time Wickard was decided. The reason was laissez-faire economics, the point of which was to keep government interference to a minimum. See The Court in Carter Coal was still trying to create a laissez-faire world out of the 20thcentury economy, and formalistic commercial distinctions were thought to be useful instruments in achieving that object. The Court in Wickard knew it could not do any such thing and in the aftermath of the New Deal had long since stopped attempting the impossible. Without the animating economic theory, there was no point in contriving formalisms in a war with Chief Justice Marshall's conception of the commerce power. If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated economic world. The answer is that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual *645 see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power. This conception is the subject of the majority's second categorical discount applied today to the facts bearing on the substantial effects test. B The Court finds it relevant that the statute addresses conduct traditionally subject to state prohibition under domestic criminal law, a fact said to have some heightened significance when the violent conduct in question is not itself aimed directly at interstate commerce or its instrumentalities. Ante, at 609. Again, history seems to be recycling, for the theory of traditional state concern as grounding a limiting principle has been rejected previously, and more than once. It was disapproved in -124, and held insufficient standing alone to limit the commerce power in -. In the particular context of the Fair Labor Standards Act it was rejected in with the recognition that "[t]here is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the " at The Court held it to be "clear that the Federal Government, when acting within a delegated power, may override countervailing state interests, whether these be described as `governmental' or `proprietary' in character." While Wirtz was later overruled by National League of Cities v. 426 U. S. *646 833 (1976), that case was itself repudiated in which held that the concept of "traditional governmental function" (as an element of the immunity doctrine under ) was incoherent, there being no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the 469 U.S., 6-547. The effort to carve out inviolable state spheres within the spectrum of activities substantially affecting commerce was, of course, just as irreconcilable with Gibbons `s explanation of the national commerce power as being as "absolut[e] as it would be in a single government," 9 Wheat.,[14] *647 The objection to reviving traditional state spheres of action as a consideration in commerce analysis, however, not only rests on the portent of incoherence, but is compounded by a further defect just as fundamental. The defect, in essence, is the majority's rejection of the Founders' considered judgment that politics, not judicial review, should mediate between state and national interests as the strength and legislative jurisdiction of the National Government inevitably increased through the expected growth of the national economy.[15] Whereas today's majority takes a leaf from the book of the old judicial economists in saying that the Court should somehow draw the line to keep the federal relationship in a proper balance, Madison, Wilson, and Marshall understood the Constitution very differently. Although Madison had emphasized the conception of a National Government of discrete powers (a conception that a number of the ratifying conventions thought was too indeterminate to protect civil liberties),[16] Madison himself must have sensed the potential scope of some of the powers granted (such as the authority to regulate commerce), for he *648 took care in The Federalist No. 46 to hedge his argument for limited power by explaining the importance of national politics in protecting the ' interests. The National Government "will partake sufficiently of the spirit [of the ], to be disinclined to invade the rights of the individual or the prerogatives of their governments." The Federalist No. 46, p. 319 (J. Cooke ed. 1961). James Wilson likewise noted that "it was a favorite object in the Convention" to secure the sovereignty of the and that it had been achieved through the structure of the Federal Government. 2 Elliot's Debates 438-439.[17] The Framers of the Bill of Rights, in turn, may well have sensed that Madison and Wilson were right about politics as the determinant of the federal balance within the broad limits of a power like commerce, for they formulated the Tenth Amendment without any provision comparable to the specific guarantees proposed for individual liberties.[18] In any case, this Court recognized the political component of federalism in the seminal Gibbons opinion. After declaring the plenary character of congressional power within the sphere of activity affecting commerce, the Chief Justice spoke for the Court in explaining that there was only one restraint on its valid exercise: *649 "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments." Gibbons, 9 Wheat., Politics as the moderator of the congressional employment of the commerce power was the theme many years later in Wickard, for after the Court acknowledged the breadth of the Gibbons formulation it invoked Chief Justice Marshall yet again in adding that "[h]e made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than judicial processes." Wickard, Hence, "conflicts of economic interest are wisely left under our system to resolution by Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do." As with "conflicts of economic interest," so with supposed conflicts of sovereign political interests implicated by the Commerce Clause: the Constitution remits them to politics. The point can be put no more clearly than the Court put it the last time it repudiated the notion that some state activities categorically defied the commerce power as understood in accordance with generally accepted concepts. After confirming Madison's and Wilson's views with a recitation of the sources of state influence in the structure of the National Constitution, Garcia, -552, the Court disposed of the possibility of identifying "principled constitutional limitations on the scope of Congress' Commerce Clause powers over the merely *650 by relying on a priori definitions of state sovereignty," 8. It concluded that "the Framers chose to rely on a federal system in which special restraints on federal power over the inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." The Garcia Court's rejection of "judicially created limitations" in favor of the intended reliance on national politics was all the more powerful owing to the Court's explicit recognition that in the centuries since the framing the relative powers of the two sovereign systems have markedly changed. Nationwide economic integration is the norm, the national political power has been augmented by its vast revenues, and the power of the has been drawn down by the Seventeenth Amendment, eliminating selection of senators by state legislature in favor of direct election. The Garcia majority recognized that economic growth and the burgeoning of federal revenue have not amended the Constitution, which contains no circuit breaker to preclude the political consequences of these developments. Nor is there any justification for attempts to nullify the natural political impact of the particular amendment that was adopted. The significance for state political power of ending state legislative selection of senators was no secret in 1913, and the amendment was approved despite public comment on that very issue. Representative Franklin Bartlett, after quoting Madison's Federalist No. 62, as well as remarks by George Mason and John Dickinson during the Constitutional Convention, concluded, "It follows, therefore, that the *651 framers of the Constitution, were they present in this House to-day, would inevitably regard this resolution as a most direct blow at the doctrine of State's rights and at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all share in the General Government, you annihilate its federative importance." 26 Cong. Rec. 7774 (1894). Massachusetts Senator George Hoar likewise defended indirect election of the Senate as "a great security for the rights of the" S. Doc. No. 232, 59th Cong., 1st Sess., 21 (6). And Elihu Root warned that if the selection of senators should be taken from state legislatures, "the tide that now sets toward the Federal Government will swell in volume and power." 46 Cong. Rec. 2243 (1911). "The time will come," he continued, "when the Government of the United will be driven to the exercise of more arbitrary and unconsidered power, will be driven to greater concentration, will be driven to extend its functions into the internal affairs of the" See generally Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment, (9) These warnings did not kill the proposal; the Amendment was ratified, and today it is only the ratification, not the predictions, which this Court can legitimately heed.[19] *652 Amendments that alter the balance of power between the National and State Governments, like the Fourteenth, or that change the way the are represented within the Federal Government, like the Seventeenth, are not rips in the fabric of the Framers' Constitution, inviting judicial repairs. The Seventeenth Amendment may indeed have lessened the enthusiasm of the Senate to represent the as discrete sovereignties, but the Amendment did not convert the judiciary into an alternate shield against the commerce power. C The Court's choice to invoke considerations of traditional state regulation in these cases is especially odd in light of a distinction recognized in the now-repudiated opinion for the Court in In explaining that there was no inconsistency between declaring the immune to the commerce power exercised in the Fair Labor Standards Act, but subject to it under the Economic Stabilization Act of 1970, as decided in Fry v. United the Court spoke of the latter statute as dealing with a serious threat affecting all the political components of the federal *653 system, "which only collective action by the National Government might forestall." Today's majority, however, finds no significance whatever in the state support for the Act based upon the ' acknowledged failure to deal adequately with gender-based violence in state courts, and the belief of their own law enforcement agencies that national action is essential.[20] The National Association of Attorneys General supported the Act unanimously, see Violence Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37-38 (1), and Attorneys General from 38 urged Congress to enact the Civil Rights Remedy, representing that "the current system for dealing with violence against women is inadequate," see Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 34-36 (3). It was against this record of failure at the state level that the Act was passed to provide the choice of a federal forum in place of the state-court systems found inadequate to stop gender-biased violence. See Women and Violence, Hearing before the Senate Committee on the Judiciary, 101st Cong., 2d Sess., 2 (0) (statement of Sen. Biden) (noting importance of federal forum).[21] The Act accordingly offers a federal civil rights remedy aimed exactly *654 at violence against women, as an alternative to the generic state tort causes of action found to be poor tools of action by the state task forces. See S. Rep. No. 101-545, 5 (noting difficulty of fitting gender-motivated crimes into commonlaw categories). As the 3 Senate Report put it, "The Violence Against Women Act is intended to respond both to the underlying attitude that this violence is somehow less serious than other crime and to the resulting failure of our criminal justice system to address such violence. Its goals are both symbolic and practical" S. Rep. No. 103-138, at 38. The collective opinion of state officials that the Act was needed continues virtually unchanged, and when the Civil Rights Remedy was challenged in court, the came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents' side. It is, then, not the least irony of these cases that the will be forced to enjoy the new federalism whether they want it or not. For with the Court's decision today, Antonio Morrison, like Carter Coal `s James Carter before him, has "won the states' rights plea against the states themselves." R. Jackson, The Struggle for Judicial Supremacy 160 III All of this convinces me that today's ebb of the commerce power rests on error, and at the same time leads me to doubt that the majority's view will prove to be enduring law. There is yet one more reason for doubt. Although we sense the presence of Carter Coal, Schechter, and once again, the majority embraces them only at arm's-length. Where such decisions once stood for rules, today's opinion points to considerations by which substantial effects are discounted. Cases standing for the sufficiency of substantial effects are not overruled; cases overruled since 1937 are not quite revived. The Court's thinking betokens less clearly *655 a return to the conceptual straitjackets of Schechter and Carter Coal and than to something like the unsteady state of obscenity law between and a period in which the failure to provide a workable definition left this Court to review each case ad hoc. See ; Interstate Circuit, As our predecessors learned then, the practice of such ad hoc review cannot preserve the distinction between the judicial and the legislative, and this Court, in any event, lacks the institutional capacity to maintain such a regime for very long. This one will end when the majority realizes that the conception of the commerce power for which it entertains hopes would inevitably fail the test expressed in Justice Holmes's statement that "[t]he first call of a theory of law is that it should fit the facts." O. Holmes, The Common Law 167 (Howe ed. 1963). The facts that cannot be ignored today are the facts of integrated national commerce and a political relationship between and Nation much affected by their respective treasuries and constitutional modifications adopted by the people. The federalism of some earlier time is no more adequate to account for those facts today than the theory of laissez-faire was able to govern the national economy 70 years ago.

Justice Scalia

dissenting

Shafer v. South Carolina

https://www.courtlistener.com/opinion/118412/shafer-v-south-carolina/

https://www.courtlistener.com/api/rest/v3/clusters/118412/

2000-032

While I concede that today's judgment is a logical extension of Simmons v. South Carolina, 512 U.S. 154 (1994), I am more attached to the logic of the Constitution, whose Due Process Clause was understood as an embodiment of common-law tradition, rather than as authority for federal courts to promulgate wise national rules of criminal procedure. As I pointed out in Simmons, that common-law tradition does not contain special jury-instruction requirements for capital cases. Today's decision is the second page of the "whole new chapter" of our improvised "`death-is-different' jurisprudence" that Simmons began. Id., at 185 (Scalia, J., dissenting). The third page (or the fourth or fifth) will be the (logical-enough) extension of this novel requirement to cases in which the jury did not inquire into the possibility of parole. Providing such information may well be a good idea (though it will sometimes harm rather than help the defendant's case)—and many States have indeed required it. See App. B to Brief for Petitioner. The Constitution, however, does not. I would limit Simmons to its facts.

While I concede that today's judgment is a logical extension of I am more attached to the logic of the Constitution, whose Due Process Clause was understood as an embodiment of common-law tradition, rather than as authority for federal courts to promulgate wise national rules of criminal procedure. As I pointed out in Simmons, that common-law tradition does not contain special jury-instruction requirements for capital cases. Today's decision is the second page of the "whole new chapter" of our improvised "`death-is-different' jurisprudence" that Simmons began. The third page (or the fourth or fifth) will be the (logical-enough) extension of this novel requirement to cases in which the jury did not inquire into the possibility of parole. Providing such information may well be a good idea (though it will sometimes harm rather than help the defendant's case)—and many States have indeed required it. See App. B to Brief for Petitioner. The Constitution, however, does not. I would limit Simmons to its facts.

Justice Marshall

majority

Shaffer v. Heitner

https://www.courtlistener.com/opinion/109721/shaffer-v-heitner/

https://www.courtlistener.com/api/rest/v3/clusters/109721/

1976-166

The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions. I Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc.,[1] and 28 present or former officers or directors of one or *190 both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit[2] and a large fine in a criminal contempt action.[3] The activities which led to these penalties took place in Oregon. Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del. Code Ann., Tit. 10, § 366 (1975).[4] This motion was accompanied by a supporting *191 affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as "common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation." The requested sequestration order was signed the day the motion was filed.[5] Pursuant to that order, the sequestrator[6]*192 "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants,[7] and options belonging to another 2 defendants.[8] These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound Corp. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del. Code Ann., Tit. 8, § 169 (1975), which makes Delaware the situs of ownership of all stock in Delaware corporations.[9] All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for *193 the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that under the rule of International Shoe Co. v. Washington, 326 U.S. 310 (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts. The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure: "The primary purpose of `sequestration' as authorized by 10 Del. C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, `sequestration' is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del. Supr., 117 A.2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion." App. 75-76. This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974). App. 75-76, 80, 83-85. The court also found no state-law or federal constitutional barrier to the sequestrator's reliance on Del. Code Ann., Tit. 8, § 169 *194 (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id., at 85-87. On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Corp. v. Heitner, 361 A.2d 225 (1976). Most of the Supreme Court's opinion was devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court,[10] Delaware's interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. 361 A.2d, at 230-236. *195 Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs: "There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them. . . . The reason, of course, is that jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. § 169 the `situs of the ownership of the capital stock of all corporations existing under the laws of this State . . . [is] in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, . . . it has done so and the presence thereof provides the foundation for § 366 in this case. . . . On this issue we agree with the analysis made and the conclusion reached by Judge Stapleton in U. S. Industries, Inc. v. Gregg, D. Del., 348 F. Supp. 1004 (1972).[[11]] "We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe." Id., at 229. We noted probable jurisdiction. 429 U.S. 813.[12] We reverse. *196 II The Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U.S. 714 (1878). Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State,[13] and Mitchell had used that procedure to bring Neff *197 before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the land to Neff.[14] This Court affirmed. Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the "principles of public law" that regulate the relationships among independent nations. The first of those principles was "that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." The second was "that no State can exercise direct jurisdiction and authority over persons or property without its territory." Id., at 722. Thus, "in virtue of the State's jurisdiction over the property of the non-resident situated within its limits," the state courts "can inquire into that non-resident's obligations to its own citizens . . . to the extent necessary to control the disposition of the property." Id., at 723. The Court recognized that if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the State. But any attempt "directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable *198 in other States,[15] but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. Id., at 732-733. See also, e. g., Freeman v. Alderson, 119 U.S. 185, 187-188 (1886). This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based on the State's power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual since the State's power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State's power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment.[16] Since the judgment which authorized the sheriff's sale was therefore invalid, the sale transferred no title. Neff regained his land. From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional *199 doctrine governing state-court jurisdiction. See, e. g., Hazard, A General Theory of State-Court Jurisdiction, 1965 Sup. Ct. Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam" and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court.[17] In Pennoyer's terms, the owner is affected only "indirectly" by an in rem judgment adverse to his interest in the property subject to the court's disposition. By concluding that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," 95 U.S., at 720, Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property *200 was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner's location. Indeed, since a State's process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e. g., Ballard v. Hunter, 204 U.S. 241 (1907); Arndt v. Griggs, 134 U.S. 316 (1890); Huling v. Kaw Valley R. Co., 130 U.S. 559 (1889). The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff's State. See, e. g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's L. Rev. 668, 670 (1975). For example, in the well-known case of Harris v. Balk, 198 U.S. 215 (1905), Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein's North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U. S. Const., Art. IV, § 1, required that Harris' payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, 198 U.S., at 223, and brought it into the Maryland court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction *201 of a Maryland tribunal.[18] See also, e. g., Louisville & N. R. Co. v. Deer, 200 U.S. 176 (1906); Steele v. G. D. Searle & Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958 (1974). Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State. 95 U.S., at 733-735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. Id., at 735-736; see Lafayette Ins. Co. v. French, 18 How. 404 (1856). This *202 basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed "present" in the State, and so subject to service of process under the rule of Pennoyer. See, e. g., International Harvester Co. v. Kentucky, 234 U.S. 579 (1914); Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264 (1917). See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv. L. Rev. 909, 919-923 (1960) (hereafter Developments). The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois Central R. Co., 346 U.S. 338, 340-341 (1953). The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State's highways, had by using those highways appointed a designated state official as his agent to accept process. See Hess v. Pawloski, 274 U.S. 352 (1927). Since the motorist's "agent" could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver. The motorists' consent theory was easy to administer since it required only a finding that the out-of-state driver had used the State's roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was "doing business" in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e. g., International Shoe *203 Co. v. Washington, 326 U. S., at 317-319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were in fact attempting to ascertain "what dealings make it just to subject a foreign corporation to local suit." Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged that fact. The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person. That power, however, was no longer the central concern: "But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463." 326 U.S., at 316. Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was "present" but on whether there have been "such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." Id., at 317. *204 Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness: "Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations." Id., at 319.[19] Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.[20] The immediate effect of this departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, *205 21 Hastings L. J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U. Ill. L. F. 533; Developments 1000-1008. No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e. g., U. S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (CA3 1976) (Gibbons, J., concurring); Camire v. Scieszka, 116 N. H. 281, 358 A.2d 397 (1976); Bekins v. Huish, 1 Ariz. App. 258, 401 P.2d 743 (1965); Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P.2d 960 (1957), appeal dismissed and cert. denied sub nom. Columbia Broadcasting System v. Atkinson, 357 U.S. 569 (1958). The overwhelming majority of commentators have also rejected Pennoyer's premise that a proceeding "against" property is not a proceeding against the owners of that property. Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a State's power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State. See, e. g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is This Conflict Really Necessary?, 37 Texas L. Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L. J. 289 (1956); Developments; Hazard. *206 Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. Schroeder v. City of New York, 371 U.S. 208 (1962); Walker v. City of Hutchinson, 352 U.S. 112 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. Schroeder v. City of New York, supra, at 213; cf. Continental Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960) (separate actions against barge and barge owner are one "civil action" for purpose of transfer under 28 U.S. C. § 1404 (a)). Moreover, in Mullane we held that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is "a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state." 339 U.S., at 312. It is clear, therefore, that the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer.[21] We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam. *207 III The case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that "[t]he phrase, `judicial jurisdiction over a thing,' is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) (hereafter Restatement).[22] This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in a thing."[23] The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe. This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant,[24] it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property *208 located in the State would normally[25] indicate that he expected to benefit from the State's protection of his interest.[26] The State's strong interests in assuring the marketability of property within its borders[27] and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.[28] The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.[29] It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state-court jurisdiction must satisfy the International Shoe standard.[30] For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These are cases where *209 the property which now serves as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum. Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation.[31] Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court.[32] Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance.[33] In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible. *210 The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer "should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit." Restatement § 66, Comment a. Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures,[34] as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e. g., Von Mehren & Trautman 1178; Hazard 284-285; Beale, supra, n. 18, at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him.[35] The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States.[36] *211 It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum.[37] See Folk & Moyer, supra, n. 10, at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high. We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner's interest in that property.[38] This history must be *212 considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256 U.S. 94, 111 (1921), but it is not decisive. "[T]raditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U. S., at 340; Wolf v. Colorado, 338 U.S. 25, 27 (1949). The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant. We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.[39] *213 IV The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation.[40] Appellee Heitner did not allege and does not now claim that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a corporation chartered in Delaware[41] provide sufficient "contacts, ties, or relations," International Shoe Co. v. Washington, 326 U. S., at *214 319, with that State to give its courts jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries such as appellants. This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction, not on appellants' status as corporate fiduciaries, but rather on the presence of their property in the State. Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693, 695 (Del. Ch. 1972), the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident,[42] see, e. g., U. S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra (same), and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the State. But as Heitner's failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation.[43] If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries *215 to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest. Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee has identified may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors.[44] But we have rejected the argument that if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties to that dispute. "[The State] does not acquire . . . jurisdiction by being the `center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [appellants]." Hanson v. Denckla, 357 U.S. 235, 254 (1958).[45] Appellee suggests that by accepting positions as officers or directors of a Delaware corporation, appellants performed the acts required by Hanson v. Denckla. He notes that Delaware law provides substantial benefits to corporate officers and directors,[46] and that these benefits were at least in part *216 the incentive for appellants to assume their positions. It is, he says, "only fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware when they are accused of misusing their power. Brief for Appellee 15. But like Heitner's first argument, this line of reasoning establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, supra, at 253, in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States,[47] has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the State. And "[i]t strains reason . . . to suggest that anyone buying securities in a corporation formed in Delaware `impliedly consents' to subject himself to Delaware's. . . jurisdiction on any cause of action." Folk & Moyer, supra, n. 10, at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment only in States with which they had had "minimum contacts." The Due Process Clause "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co. v. Washington, 326 U. S., at 319. Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on *217 state power. The judgment of the Delaware Supreme Court must, therefore, be reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions. I Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines,[1] and 28 present or former officers or directors of one or *190 both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporations being held liable for substantial damages in a private antitrust suit[2] and a large fine in a criminal contempt action.[3] The activities which led to these penalties took place in Oregon. Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del. Code Ann., Tit. 10, 366[4] This motion was accompanied by a supporting *191 affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as "common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation." The requested sequestration order was signed the day the motion was filed.[5] Pursuant to that order, the sequestrator[6]*192 "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants,[7] and options belonging to another 2 defendants.[8] These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del. Code Ann., Tit. 8, 169 which makes Delaware the situs of ownership of all stock in Delaware corporations.[9] All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for *193 the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that under the rule of International Shoe they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts. The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure: "The primary purpose of `sequestration' as authorized by 10 Del. C. 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, `sequestration' is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion." App. 75-76. This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in ; ; and App. 75-76, 80, 83-85. The court also found no state-law or federal constitutional barrier to the sequestrator's reliance on Del. Code Ann., Tit. 8, 169 *194 App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Most of the Supreme Court's opinion was devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court,[10] Delaware's interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. -236. *195 Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs: "There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them. The reason, of course, is that jurisdiction under 366 remains quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. 169 the `situs of the ownership of the capital stock of all corporations existing under the laws of this State [is] in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, it has done so and the presence thereof provides the foundation for 366 in this case. On this issue we agree with the analysis made and the conclusion reached by Judge Stapleton in U. S. Industries,[[11]] "We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe." We noted probable jurisdiction.[12] We reverse. *196 II The Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State,[13] and Mitchell had used that procedure to bring Neff *197 before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the land to Neff.[14] This Court affirmed. Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the "principles of public law" that regulate the relationships among independent nations. The first of those principles was "that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." The second was "that no State can exercise direct jurisdiction and authority over persons or property without its territory." Thus, "in virtue of the State's jurisdiction over the property of the non-resident situated within its limits," the state courts "can inquire into that non-resident's obligations to its own citizens to the extent necessary to control the disposition of the property." The Court recognized that if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the property would be affected. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the But any attempt "directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable *198 in other States,[15] but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. See also, e. g., This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based on the State's power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual since the State's power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State's power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment.[16] Since the judgment which authorized the sheriff's sale was therefore invalid, the sale transferred no title. Neff regained his land. From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional *199 doctrine governing state-court jurisdiction. See, e. g., Hazard, A General Theory of State-Court Jurisdiction, As we have noted, under Pennoyer state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam" and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner, since he is not before the court.[17] In Pennoyer's terms, the owner is affected only "indirectly" by an in rem judgment adverse to his interest in the property subject to the court's disposition. By concluding that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property *200 was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner's location. Indeed, since a State's process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e. g., ; ; The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff's See, e. g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, For example, in the well-known case of Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein's North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U. S. Const., Art. IV, 1, required that Harris' payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, and brought it into the Maryland court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction *201 of a Maryland tribunal.[18] See also, e. g., Louisville & N. R. ; cert. denied, Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that -735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that ; see Lafayette Ins. This *202 basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed "present" in the State, and so subject to service of process under the rule of Pennoyer. See, e. g., International Harvester ; Philadelphia & Reading R. See generally Note, Developments in the Law, State-Court Jurisdiction, The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State's highways, had by using those highways appointed a designated state official as his agent to accept process. See Since the motorist's "agent" could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver. The motorists' consent theory was easy to administer since it required only a finding that the out-of-state driver had used the State's roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was "doing business" in the forum Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e. g., International Shoe *203 -319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were in fact attempting to ascertain "what dealings make it just to subject a foreign corporation to local suit." In International Shoe, we acknowledged that fact. The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Mr. Chief Justice Stone's opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person. That power, however, was no longer the central concern: "But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was "present" but on whether there have been "such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there." *204 Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness: "Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations."[19] Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.[20] The immediate effect of this departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, *205 21 Hastings L. J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U. Ill. L. F. 533; Developments 1000-1008. No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e. g., U. S. Industries, cert. pending, No. 76-359; ; ; ; appeal dismissed and cert. denied sub nom. Columbia Broadcasting The overwhelming majority of commentators have also rejected Pennoyer's premise that a proceeding "against" property is not a proceeding against the owners of that property. Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a State's power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the See, e. g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, ; Traynor, Is This Conflict Really Necessary?, 37 Texas L. Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L. J. 289 ; Developments; Hazard. *206 Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. ; ; This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. ; cf. Continental Grain (separate actions against barge and barge owner are one "civil action" for purpose of transfer under 28 U.S. C. 1404 (a)). Moreover, in Mullane we held that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is "a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state." It is clear, therefore, that the law of state-court jurisdiction no longer stands securely on the foundation established in Pennoyer.[21] We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam. *207 III The case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that "[t]he phrase, `judicial jurisdiction over a thing,' is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of Laws 56, Introductory Note (1971) (hereafter Restatement).[22] This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in a thing."[23] The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe. This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant,[24] it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property *208 located in the State would normally[25] indicate that he expected to benefit from the State's protection of his interest.[26] The State's strong interests in assuring the marketability of property within its borders[] and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the [28] The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.[29] It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state-court jurisdiction must satisfy the International Shoe standard.[30] For the type of quasi in rem action typified by and the present case, however, accepting the proposed analysis would result in significant change. These are cases where *209 the property which now serves as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum. Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation.[31] Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court.[32] Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance.[33] In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible. *210 The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer "should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit." Restatement 66, Comment a. Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures,[34] as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e. g., Von Mehren & Trautman 1178; Hazard 284-285; at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him.[35] The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States.[36] *211 It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum.[37] See Folk & at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high. We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner's interest in that property.[38] This history must be *212 considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. but it is not decisive. "[T]raditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. ; The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant. We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.[39] *213 IV The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation.[40] Appellee Heitner did not allege and does not now claim that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a corporation chartered in Delaware[41] provide sufficient "contacts, ties, or relations," International Shoe 326 U. S., at *214 319, with that State to give its courts jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries such as appellants. This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction, not on appellants' status as corporate fiduciaries, but rather on the presence of their property in the Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident,[42] see, e. g., U. S. Industries, cert. pending, No. 76-359 (breach of contract); Hughes Tool and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the But as Heitner's failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation.[43] If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries *215 to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest. Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee has identified may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors.[44] But we have rejected the argument that if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties to that dispute. "[The State] does not acquire jurisdiction by being the `center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [appellants]."[45] Appellee suggests that by accepting positions as officers or directors of a Delaware corporation, appellants performed the acts required by He notes that Delaware law provides substantial benefits to corporate officers and directors,[46] and that these benefits were at least in part *216 the incentive for appellants to assume their positions. It is, he says, "only fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware when they are accused of misusing their power. Brief for Appellee 15. But like Heitner's first argument, this line of reasoning establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States,[47] has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the And "[i]t strains reason to suggest that anyone buying securities in a corporation formed in Delaware `impliedly consents' to subject himself to Delaware's. jurisdiction on any cause of action." Folk & at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment only in States with which they had had "minimum contacts." The Due Process Clause "does not contemplate that a state may make binding a judgment against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe 326 U. S., Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on *217 state power. The judgment of the Delaware Supreme Court must, therefore, be reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

Justice Scalia

concurring

Seling v. Young

https://www.courtlistener.com/opinion/118401/seling-v-young/

https://www.courtlistener.com/api/rest/v3/clusters/118401/

2000-015

I agree with the Court's holding that a statute, "found to be civil [in nature], cannot be deemed punitive" or criminal "as applied" for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante this page. The Court accurately observes that this holding gives us "no occasion to consider. . . the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature." Ante, at 266. I write separately to dissociate myself from any implication that this reserved point may be an open question. I do not regard it as such since, three *268 years ago, we rejected a similar double jeopardy challenge (based upon the statute's implementation "as applied" to the petitioners), where the statute had not yet been determined to be civil in nature, and where we were making that determination "in the first instance." See Hudson v. United States, 522 U.S. 93 (1997). To be consistent with the most narrow holding of that case (which, unlike this one, did not involve imposition of confinement), any consideration of subsequent implementation in the course of making a "first instance" determination cannot extend to all subsequent implementation, but must be limited to implementation of confinement, and of other impositions that are "not a fixed event," ante, at 263. That, however, would be a peculiar limitation, since even "fixed events" such as the imposition of a fine can, in their implementation, acquire penal aspects— exemplified in Hudson by the allegedly punitive size of the fines, and by the availability of reduction for "good-faith" violations, see 522 U.S., at 97-98, 104. Moreover, the language and the reasoning of Hudson leave no room for such a peculiar limitation. In that case, the petitioners contended that the punitive nature of the statute that had been applied to them could be assessed by considering the aforementioned features of the fines. We flatly rejected that contention, which found support in our prior decision in United States v. Halper, 490 U.S. 435 (1989). Halper, we said, had erroneously made a "significant departure" from our prior jurisprudence, in deciding "to `asses[s] the character of the actual sanctions imposed,' 490 U.S., at 447, rather than, as Kennedy [v. Mendoza-Martinez, 372 U.S. 144 (1963),] demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction, [id.], at 169." 522 U.S., at 101. The Kennedy factors, we said, "`must be considered in relation to the statute on its face,' " 522 U.S., at 100, quoting from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). We held that "[t]he fact that petitioners' *269 `good faith' was considered in determining the amount of the penalty to be imposed in this case [a circumstance that would normally indicate the assessment is punitive] is irrelevant, as we look only to `the statute on its face' to determine whether a penalty is criminal in nature." Hudson, supra, at 104, quoting Kennedy, supra, at 169. We repeated, to be sure, the principle that the statutory scheme would be criminal if it was sufficiently punitive "`either in purpose or effect, ` " Hudson, supra, at 99 (emphasis added), quoting United States v. Ward, 448 U.S. 242, 248-249 (1980), but it was clear from the opinion that this referred to effects apparent upon the face of the statute. The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature;[*] and harsh executive implementation cannot "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956), any more than compassionate executive implementation can transform a criminal penalty into a civil remedy. This is not to say that there is no relief from a system that administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invalidate the legislature's handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts the statute's civil character. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state *270 courts authoritatively interpret the state statute as permitting impositions that are indeed punitive, then and only then can federal courts pronounce a statute that on its face is civil to be criminal. Such an approach protects federal courts from becoming enmeshed in the sort of intrusive inquiry into local conditions at state institutions that are best left to the State's own judiciary, at least in the first instance. And it avoids federal invalidation of state statutes on the basis of executive implementation that the state courts themselves, given the opportunity, would find to be ultra vires. Only this approach, it seems to me, is in accord with our sound and traditional reluctance to be the initial interpreter of state law. See Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500-501 (1941). With this clarification, I join the opinion of the Court. Justice Thomas, concurring in the judgment. We granted certiorari to decide whether "an otherwise valid civil statute can be divested of its civil nature" simply because of an administrative agency's failure to implement the statute according to its terms. Pet. for Cert. i (emphasis added). The majority declines to answer this question. Instead, it assumes that the statute at issue is civil—rather than "otherwise . . . civil," or civil "on its face." Young v. Weston, 122 F.3d 38 (CA9 1997). And then it merely holds that a statute that is civil cannot be deemed the opposite of civil—"punitive," as the majority puts it—as applied to a single individual. Ante, at 267. In explaining this conclusion, the majority expressly reserves judgment on whether the manner of implementation should affect a court's assessment of a statute as civil in the "first instance." Ante, at 263, 267. I write separately to express my view, first, that a statute which is civil on its face cannot be divested of its civil nature simply because of the manner in which it is implemented, and second, that the distinction between a challenge in the *271 "first instance" and a subsequent challenge is one without a difference. Before proceeding, it is important to clarify the issue in this case. The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, see, e. g., ante, at 263, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringe[s] constitutional freedoms in the circumstances of [a] particular case." United States v. Christian Echoes Nat. Ministry, Inc., 404 U.S. 561, 565 (1972) (per curiam) (emphasis added). In contrast, respondent's claim is not that Washington's Community Protection Act of 1990 (Washington Act or Act), Wash. Rev. Code § 71.09.010 et seq. (1992), "by its own terms" is unconstitutional as applied to him,[1] but rather that the statute is not being applied according to its terms at all.[2] Respondent essentially contends that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose. See ante, at 259-260. *272 A challenge, such as this one, to the implementation of a facially civil statute is not only "unworkable," as the majority puts it, ante, at 263, but also prohibited by our decision in Hudson v. United States, 522 U.S. 93 (1997). In Hudson, we held that, when determining whether a statute is civil or criminal, a court must examine the "statute on its face." Id., at 101, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963) (internal quotation marks omitted). In so holding, we expressly disavowed the approach used in United States v. Halper, 490 U.S. 435, 448 (1989), which evaluated the "actual sanctions imposed." 522 U.S., at 101, quoting Halper, supra, at 447 (internal quotation marks omitted). Respondent's claim is flatly inconsistent with the holding of Hudson because respondent asks us to look beyond the face of the Washington Act and to examine instead the actual sanctions imposed on him, that is, the actual conditions of confinement. Respondent argues, and the Ninth Circuit held, that Hudson `s reach is limited to the particular sanctions involved in that case—monetary penalties and occupational disbarment—and does not apply here, where the sanction is confinement. Hudson, however, contains no indication whatsoever that its holding is limited to the specific sanctions at issue. To the contrary, as we explained in Hudson, a court may not elevate to dispositive status any of the factors that it may consider in determining whether a sanction is criminal.[3] 522 U. S., at 101. One of these nondispositive *273 factors is confinement. Id., at 99 (stating that one of the factors is "[w]hether the sanction involves an affirmative disability or restraint," quoting Mendoza-Martinez, supra, at 168 (internal quotation marks omitted)). Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between confinement and other sanctions. Because Hudson rejects such an argument, respondent's claim fails. An implementation-based challenge to a facially civil statute would be as inappropriate in reviewing the statute in the "first instance," ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. Hudson, which requires courts to look at the face of the statute, precludes implementation-based challenges at any time. Moreover, the implementation-based claim would be as "unworkable," ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time and may vary from facility to facility, an implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use the majority's words, the validity of a statute should not be "based merely on vagaries in the implementation of the authorizing statute." Ibid. And yet the majority suggests that courts may be able to consider conditions of confinement in determining whether a statute is punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of the statute, I of course agree. Cf. Hudson, supra, at 101 (directing courts to look at "`the statute on its face' "). However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the *274 effect of its improper implementation.[4] A suit based on these conditions cannot prevail. * * * The Washington Act does not provide on its face for punitive conditions of confinement, and the actual conditions under which the Act is implemented are of no concern to our inquiry. I therefore concur in the judgment of the Court.

I agree with the Court's holding that a statute, "found to be civil [in nature], cannot be deemed punitive" or criminal "as applied" for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante this page. The Court accurately observes that this holding gives us "no occasion to consider. the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature." Ante, at 266. I write separately to dissociate myself from any implication that this reserved point may be an open question. I do not regard it as such since, three *268 years ago, we rejected a similar double jeopardy challenge (based upon the statute's implementation "as applied" to the petitioners), where the statute had not yet been determined to be civil in nature, and where we were making that determination "in the first instance." See To be consistent with the most narrow holding of that case (which, unlike this one, did not involve imposition of confinement), any consideration of subsequent implementation in the course of making a "first instance" determination cannot extend to all subsequent implementation, but must be limited to implementation of confinement, and of other impositions that are "not a fixed event," ante, at 263. That, however, would be a peculiar limitation, since even "fixed events" such as the imposition of a fine can, in their implementation, acquire penal aspects— exemplified in by the allegedly punitive size of the fines, and by the availability of reduction for "good-faith" violations, see -98, 104. Moreover, the language and the reasoning of leave no room for such a peculiar limitation. In that case, the petitioners contended that the punitive nature of the statute that had been applied to them could be assessed by considering the aforementioned features of the fines. We flatly rejected that contention, which found support in our prior decision in United we said, had erroneously made a "significant departure" from our prior jurisprudence, in deciding "to `asses[s] the character of the actual sanctions imposed,' rather than, as [v.] demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction, [id.], at" The factors, we said, "`must be considered in relation to the statute on its face,' " quoting from We held that "[t]he fact that petitioners' *269 `good faith' was considered in determining the amount of the penalty to be imposed in this case [a circumstance that would normally indicate the assessment is punitive] is irrelevant, as we look only to `the statute on its face' to determine whether a penalty is criminal in nature." quoting at We repeated, to be sure, the principle that the statutory scheme would be criminal if it was sufficiently punitive "`either in purpose or effect, ` " quoting United but it was clear from the opinion that this referred to effects apparent upon the face of the statute. The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature;[*] and harsh executive implementation cannot "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer any more than compassionate executive implementation can transform a criminal penalty into a civil remedy. This is not to say that there is no relief from a system that administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invalidate the legislature's handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts the statute's civil character. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state *270 courts authoritatively interpret the state statute as permitting impositions that are indeed punitive, then and only then can federal courts pronounce a statute that on its face is civil to be criminal. Such an approach protects federal courts from becoming enmeshed in the sort of intrusive inquiry into local conditions at state institutions that are best left to the State's own judiciary, at least in the first instance. And it avoids federal invalidation of state statutes on the basis of executive implementation that the state courts themselves, given the opportunity, would find to be ultra vires. Only this approach, it seems to me, is in accord with our sound and traditional reluctance to be the initial interpreter of state law. See Railroad Comm'n of With this clarification, I join the opinion of the Court. Justice Thomas, concurring in the judgment. We granted certiorari to decide whether "an otherwise valid civil statute can be divested of its civil nature" simply because of an administrative agency's failure to implement the statute according to its terms. Pet. for Cert. i The majority declines to answer this question. Instead, it assumes that the statute at issue is civil—rather than "otherwise civil," or civil "on its face." And then it merely holds that a statute that is civil cannot be deemed the opposite of civil—"punitive," as the majority puts it—as applied to a single individual. Ante, at 267. In explaining this conclusion, the majority expressly reserves judgment on whether the manner of implementation should affect a court's assessment of a statute as civil in the "first instance." Ante, at 263, 267. I write separately to express my view, first, that a statute which is civil on its face cannot be divested of its civil nature simply because of the manner in which it is implemented, and second, that the distinction between a challenge in the *271 "first instance" and a subsequent challenge is one without a difference. Before proceeding, it is important to clarify the issue in this case. The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, see, e. g., ante, at 263, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringe[s] constitutional freedoms in the circumstances of [a] particular case." United In contrast, respondent's claim is not that Washington's Community Protection Act of 1990 (Washington Act or Act), et seq. (1992), "by its own terms" is unconstitutional as applied to him,[1] but rather that the statute is not being applied according to its terms at all.[2] Respondent essentially contends that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose. See ante, at 259-260. *272 A challenge, such as this one, to the implementation of a facially civil statute is not only "unworkable," as the majority puts it, ante, at 263, but also prohibited by our decision in In we held that, when determining whether a statute is civil or criminal, a court must examine the "statute on its face." quoting In so holding, we expressly disavowed the approach used in United which evaluated the "actual sanctions imposed." quoting Respondent's claim is flatly inconsistent with the holding of because respondent asks us to look beyond the face of the Washington Act and to examine instead the actual sanctions imposed on him, that is, the actual conditions of confinement. Respondent argues, and the Ninth Circuit held, that `s reach is limited to the particular sanctions involved in that case—monetary penalties and occupational disbarment—and does not apply here, where the sanction is confinement. however, contains no indication whatsoever that its holding is limited to the specific sanctions at issue. To the contrary, as we explained in a court may not elevate to dispositive status any of the factors that it may consider in determining whether a sanction is criminal.[3] 522 U. S., One of these nondispositive *273 factors is confinement. (stating that one of the factors is "[w]hether the sanction involves an affirmative disability or restraint," quoting ). Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between confinement and other sanctions. Because rejects such an argument, respondent's claim fails. An implementation-based challenge to a facially civil statute would be as inappropriate in reviewing the statute in the "first instance," ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. which requires courts to look at the face of the statute, precludes implementation-based challenges at any time. Moreover, the implementation-based claim would be as "unworkable," ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time and may vary from facility to facility, an implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use the majority's words, the validity of a statute should not be "based merely on vagaries in the implementation of the authorizing statute." And yet the majority suggests that courts may be able to consider conditions of confinement in determining whether a statute is punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of the statute, I of course agree. Cf. However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the *274 effect of its improper implementation.[4] A suit based on these conditions cannot prevail. * * * The Washington Act does not provide on its face for punitive conditions of confinement, and the actual conditions under which the Act is implemented are of no concern to our inquiry. I therefore concur in the judgment of the Court.

Justice Blackmun

majority

Barrett v. United States

https://www.courtlistener.com/opinion/109341/barrett-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109341/

1975-021

Petitioner Pearl Barrett has been convicted by a jury in the United States District Court for the Eastern District *213 of Kentucky of a violation of 18 U.S. C. § 922 (h),[1] a part of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197, enacted earlier the same year. The issue before us is whether § 922 (h) has application to a purchaser's intrastate acquisition of a firearm that previously, but independently of the purchaser's receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer. I In January 1967, petitioner was convicted in a Kentucky state court of housebreaking. He received a two-year sentence. On April 1, 1972, he purchased a .32-caliber Smith & Wesson revolver over the counter from a Western Auto Store in Booneville, Ky., where petitioner resided.[2] The vendor, who was a local dentist as *214 well as the owner of the store, and who was acquainted with petitioner, was a federally licensed firearms dealer. The weapon petitioner purchased had been manufactured in Massachusetts, shipped by the manufacturer to a distributor in North Carolina, and then received by the Kentucky dealer from the distributor in March 1972, a little less than a month prior to petitioner's purchase. The sale to Barrett was the firearm's first retail transaction. It was the only handgun then in the dealer's stock. Tr. 36-47. Within an hour after the purchase petitioner was arrested by a county sheriff for driving while intoxicated. The firearm, fully loaded, was on the floorboard of the car on the driver's side. Petitioner was charged with a violation of § 922 (h). He pleaded not guilty. At the trial no evidence was presented to show that Barrett personally had participated in any way in the previous interstate movement of the firearm. The evidence was merely to the effect that he had purchased the revolver out of the local dealer's stock, and that the gun, having been manufactured and then warehoused in other States, had reached the dealer through interstate channels. At the close of the prosecution's case, Barrett moved for a directed verdict of acquittal on the ground that § 922 (h) was not applicable to his receipt of the firearm.[3] The motion *215 was denied. The court instructed the jury that the statute's interstate requirement was satisfied if the firearm at some time in its past had traveled in interstate commerce.[4] A verdict of guilty was returned. Petitioner received a sentence of three years, subject to the immediate parole eligibility provisions of 18 U.S. C. § 4208 (a) (2). On appeal, the Court of Appeals affirmed by a divided vote on the question before us. 504 F.2d 629 (CA6 1974). Because of the importance of the issue and because the Sixth Circuit's decision appeared to have overtones of conflict with the opinion and decision of the United States Court of Appeals for the Eighth Circuit in United States v. Ruffin, 490 F.2d 557 (1974), we granted certiorari limited to the § 922 (h) issue. 420 U.S. 923 (1975). II Petitioner concedes that Congress, under the Commerce Clause of the Constitution, has the power to regulate interstate trafficking in firearms. Brief for Petitioner 7. He states, however, that the issue before *216 us concerns the scope of Congress' exercise of that power in this statute. He argues that, in its enactment of § 922 (h), Congress was interested in "the business of gun traffic," Brief for Petitioner 11; that the Act was meant "to deal with businesses, not individuals per se" (emphasis in original), id., at 14, that is, with mailorder houses, out-of-state sources, and the like; and that the Act was not intended to, and does not, reach an isolated intrastate receipt, such as Barrett's transaction, where the handgun was sold within Kentucky by a local merchant to a local resident with whom the merchant was acquainted, and where the transaction "has no apparent connection with interstate commerce," despite the weapon's manufacture and original distribution in States other than Kentucky. Id., at 6. We feel, however, that the language of § 922 (h), the structure of the Act of which § 922 (h) is a part, and the manifest purpose of Congress are all adverse to petitioner's position. A. Section 922 (h) pointedly and simply provides that it is unlawful for four categories of persons, including a convicted felon, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The quoted language is without ambiguity. It is directed unrestrictedly at the felon's receipt of any firearm that "has been" shipped in interstate commerce. It contains no limitation to a receipt which itself is part of the interstate movement. We therefore have no reason to differ with the Court of Appeals' majority's conclusion that the language "means exactly what it says." 504 F.2d, at 632. It is to be noted, furthermore, that while the proscribed act, "to receive any firearm," is in the present tense, the interstate commerce reference is in the present perfect tense, denoting an act that has been completed. *217 Thus, there is no warping or stretching of language when the statute is applied to a firearm that already has completed its interstate journey and has come to rest in the dealer's showcase at the time of its purchase and receipt by the felon. Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section, namely, in § 922 (h) (1) (a person who "has been convicted"), and in § 922 (h) (4) (a person who "has been adjudicated" or who "has been committed"), in contrast to its use of the present tense ("who is") in §§ 922 (h) (1), (2), and (3). The statute's pattern is consistent and no unintended misuse of language or of tense is apparent. Had Congress intended to confine § 922 (h) to direct interstate receipt, it would have so provided, just as it did in other sections of the Gun Control Act. See § 922 (a) (3) (declaring it unlawful for a nonlicensee to receive in the State where he resides a firearm purchased or obtained "by such person outside that State"); § 922 (j) (prohibiting the receipt of a stolen firearm "moving as . . . interstate . . . commerce"); and § 922 (k) (prohibiting the receipt "in interstate . . . commerce" of a firearm the serial number of which has been removed). Statutes other than the Gun Control Act similarly utilize restrictive language when only direct interstate commerce is to be reached. See, e. g., 18 U.S. C. §§ 659, 1084, 1201, 1231, 1951, 1952, 2313, 2315, and 2421, and 15 U.S. C. § 77e. As we have said, there is no ambiguity in the words of § 922 (h), and there is no justification for indulging in uneasy statutory construction. United States v. Wiltberger, 5, Wheat. 76, 95-96 (1820); Yates v. United States, 354 U.S. 298, 305 (1957); Huddleston v. United States, 415 U.S. 814, 831 (1974). See United States v. Sullivan, 332 U.S. 689, 696 (1948). There is no occasion here to resort to a rule of lenity, *218 see Rewis v. United States, 401 U.S. 808, 812 (1971); United States v. Bass, 404 U.S. 336, 347 (1971), for there is no ambiguity that calls for a resolution in favor of lenity. A criminal statute, to be sure, is to be strictly construed, but it is "not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur Co. v. United States, 2 Pet. 358, 367 (1829); Huddleston v. United States, 415 U. S., at 831. B. The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922 (d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm (whether in an interstate or intrastate transaction, see Huddleston v. United States, 415 U. S., at 833) to the same categories of potentially irresponsible persons. If § 922 (h) were to be construed as petitioner suggests, it would not complement § 922 (d), and a gap in the statute's coverage would be created, for then, although the licensee is prohibited from selling either interstate or intrastate to the designated person, the vendee is not prohibited from receiving unless the transaction is itself interstate. Similarly, § 922 (g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S. C. § 2 (b), causing it to be shipped interstate. Petitioner's proposed narrow construction of § 922 (h) would reduce that section to a near redundancy with § 922 (g), since almost every interstate shipment is likely to have been solicited or otherwise caused by the direct recipient. That proposed narrow construction would also *219 create another anomaly: if a prohibited person seeks to buy from his local dealer a firearm that is not currently in the dealer's stock, and the dealer then orders it interstate, that person violates § 922 (h), but under the suggested construction, he would not violate § 922 (h) if the firearm were already on the dealer's shelf. We note, too, that other sections of the Act clearly apply to and regulate intrastate sales of a gun that has moved in intrastate commerce. For example, the licensing provisions, §§ 922 (a) (1) and 923 (a), apply to exclusively intrastate, as well as interstate, activity. Under § 922 (d), as noted above, a licensee may not knowingly sell a firearm to any prohibited person, even if the sale is intrastate. Huddleston v. United States, 415 U. S., at 833. Sections 922 (c) and (a) (6), relating, respectively, to a physical presence at the place of purchase and to the giving of false information, apply to intrastate as well as to interstate transactions. So, too, do §§ 922 (b) (2) and (5). Construing § 922 (h) as applicable to an intrastate retail sale that has been preceded by movement of the firearm in interstate commerce is thus consistent with the entire pattern of the Act. To confine § 922 (h) to direct interstate receipts would result in having the Gun Control Act cover every aspect of intrastate transactions in firearms except receipt. This, however, and obviously, is the most crucial of all. Congress surely did not intend to except from the direct prohibitions of the statute the very act it went to such pains to prevent indirectly, through complex provisions, in the other sections of the Act. C. The legislative history is fully supportive of our construction of § 922 (h). The Gun Control Act of 1968 was an amended and, for present purposes, a substantially identical version of Title IV of the Omnibus Crime *220 Control and Safe Streets Act of 1968. Each of the statutes enlarged and extended the Federal Firearms Act, 52 Stat. 1250 (1938). Section 922 (h), although identical in its operative phrase with § 2 (f) of the Federal Firearms Act, expanded the categories of persons prohibited from receiving firearms.[5] The new Act also added many prophylactic provisions, hereinabove referred to, governing intrastate as well as interstate transactions. See Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. Legal Studies 133 (1975). But the 1938 Act, it was said, was designed "to prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind." S. Rep. No. 1189, 75th Cong., 1st Sess., 33 (1937). Nothing we have found in the committee reports or hearings on the 1938 legislation indicates any intention on the part of Congress to confine § 2 (f) to direct interstate receipt of firearms. The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was "to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). See also 114 Cong. Rec. 13219 (1968) (remarks by Sen. Tydings); Huddleston v. United States, 415 U. S., at 824-825. Congressman Celler, the House Manager, expressed the same concern: "This bill seeks to maximize the possibility *221 of keeping firearms out of the hands of such persons." 114 Cong. Rec. 21784 (1968); Huddleston v. United States, 415 U. S., at 828. In the light of this principal purpose, Congress could not have intended that the broad and unambiguous language of § 922 (h) was to be confined, as petitioner suggests, to direct interstate receipts. That suggestion would remove from the statute the most usual transaction, namely, the felon's purchase or receipt from his local dealer. III Two statements of this Court in past cases, naturally relied upon by petitioner, deserve mention. The first is an observation made over 30 years ago in reference to the 1938 Act's § 2 (f), the predecessor of § 922 (h): "Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct." Tot v. United States, 319 U.S. 463, 466 (1943). In that case, the Court held that the presumption contained in § 2 (f), to the effect that "the possession of a firearm or ammunition by any such person [one convicted of a crime of violence or a fugitive from justice] shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act," was violative of due process. The quoted observation, of course, is merely a recital as to what the District Court and the Court of Appeals in that case had held and a further statement that the Government had agreed that the construction by the *222 lower courts was correct. Having made this observation, the Court then understandably moved on to the only issue in Tot, namely, the validity of the statutory presumption. The fact that the Government long ago took a narrow position on the reach of the 1938 Act may not serve to help its posture here, when it seemingly argues to the contrary, but it does not prevent the Government from arguing that the current gun control statute is broadly based and reaches a purchase such as that made by Barrett.[6] The second statement is more recent and appears in United States v. Bass, supra.[7] The Bass comment, of course, is dictum, for Bass had to do with a prosecution under 18 U.S. C. App. § 1202 (a), a provision which was part of Title VII, not of Title IV, of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Section 1202 (a) concerned any member of stated categories of persons "who receives, possesses, or transports in commerce or affecting commerce . . . any firearm." The Government contended that the statute did not require proof of a connection with interstate commerce. The Court held, however, that the statute was ambiguous and that, therefore, it must be read to require such a nexus. In so holding, the Court noted the connection between Title VII and Title IV, and observed that although subsections *223 of the two Titles addressed their prohibitions to some of the same people, each also reached groups not reached by the other. Then followed the dictum in question. The Court went on to state: "While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the `receipt' offense." 404 U.S., at 343 n. 10. The Bass dictum was just another observation made in passing as the Court proceeded to consider § 1202 (a). The observation went so far as to intimate that Title IV was to be limited even with respect to a transaction possessing an interstate commerce nexus, a situation that Barrett here concedes is covered by § 922 (h). In any event, the Court, by its statement in n. 10 of the Bass opinion, reserved the question of the reach of Title IV for "some other day." That day is now at hand, with Barrett's case before us. And it is at hand with the benefit of full briefing and an awareness of the plain language of § 922 (h), of the statute's position in the structure of the entire Act, and of the legislative aims and purpose. Furthermore, we are not willing to decide the present case on the assumption that Congress, in passing the Gun Control Act 25 years after Tot was decided, had the Court's casual recital in Tot in mind when it used language identical to that in the 1938 Act.[8] There is *224 one mention of Tot in the debates, 114 Cong. Rec. 21807 (1968), and one mention in the reports, S. Rep. No. 1097, 90th Cong., 2d Sess., 272 (1968) (additional views of Sens. Dirksen, Hruska, Thurmond, and Burdick). These reflect a concern with the fact that Tot eliminated the presumption of interstate movement, thus increasing the burden of proof on the Government. They do not focus on what showing was necessary to carry that burden of proof. Similarly, the few references to Tot in the hearings reflect objections to the elimination of the presumption, but mention only in passing the type of proof that the witness believed was necessary to satisfy § 2 (f). See, e. g., Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 46 (1967); Hearings on H. R. 5037, H. R. 5038, H. R. 5384, H. R. 5385, and H. R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561-562, 564, 677-678. Nothing in this legislative history persuades us that Congress intended to adopt Tot's limited interpretation. If we were to conclude otherwise, we would fly in the face of, and ignore, obvious congressional intent at the price of a passing recital. See Girouard v. United States, 328 U.S. 61, 69-70 (1946). To hold, as the Court did in Bass, 404 U. S., at 350, that Title VII, directed to a receipt of any firearm "in commerce or affecting commerce," requires only a showing that the firearm received previously traveled in interstate commerce, but that Title IV, relating to a receipt of any firearm "which has been shipped or transported in interstate. . . commerce," is limited to the receipt of the firearm as part of an interstate movement, would be inconsistent construction of sections of the same Act and, *225 indeed, would be downgrading the stronger language and upgrading the weaker. We conclude that § 922 (h) covers the intrastate receipt, such as petitioner's purchase here, of a firearm that previously had moved in interstate commerce. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

Petitioner Pearl Barrett has been convicted by a jury in the United District Court for the Eastern District *213 of Kentucky of a violation of 18 U.S. C. 922 (h),[1] a part of the Gun Control Act of 1968, Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Stat. 197, enacted earlier the same year. The issue before us is whether 922 (h) has application to a purchaser's intrastate acquisition of a firearm that previously, but independently of the purchaser's receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer. I In January 1967, petitioner was convicted in a Kentucky state court of housebreaking. He received a two-year sentence. On April 1, 1972, he purchased a32-caliber Smith & Wesson revolver over the counter from a Western Auto Store in Booneville, Ky., where petitioner resided.[2] The vendor, who was a local dentist as *214 well as the owner of the store, and who was acquainted with petitioner, was a federally licensed firearms dealer. The weapon petitioner purchased had been manufactured in Massachusetts, shipped by the manufacturer to a distributor in North Carolina, and then received by the Kentucky dealer from the distributor in March 1972, a little less than a month prior to petitioner's purchase. The sale to Barrett was the firearm's first retail transaction. It was the only handgun then in the dealer's stock. Tr. 36-47. Within an hour after the purchase petitioner was arrested by a county sheriff for driving while intoxicated. The firearm, fully loaded, was on the floorboard of the car on the driver's side. Petitioner was charged with a violation of 922 (h). He pleaded not guilty. At the trial no evidence was presented to show that Barrett personally had participated in any way in the previous interstate movement of the firearm. The evidence was merely to the effect that he had purchased the revolver out of the local dealer's stock, and that the gun, having been manufactured and then warehoused in other had reached the dealer through interstate channels. At the close of the prosecution's case, Barrett moved for a directed verdict of acquittal on the ground that 922 (h) was not applicable to his receipt of the firearm.[3] The motion *215 was denied. The court instructed the jury that the statute's interstate requirement was satisfied if the firearm at some time in its past had traveled in interstate commerce.[4] A verdict of guilty was returned. Petitioner received a sentence of three years, subject to the immediate parole eligibility provisions of 18 U.S. C. 4208 (a) (2). On appeal, the Court of Appeals affirmed by a divided vote on the question before us. Because of the importance of the issue and because the Sixth Circuit's decision appeared to have overtones of conflict with the opinion and decision of the United Court of Appeals for the Eighth Circuit in United we granted certiorari limited to the 922 (h) issue. II Petitioner concedes that Congress, under the Commerce Clause of the Constitution, has the power to regulate interstate trafficking in firearms. Brief for Petitioner 7. He states, however, that the issue before *216 us concerns the scope of Congress' exercise of that power in this statute. He argues that, in its enactment of 922 (h), Congress was interested in "the business of gun traffic," Brief for Petitioner 11; that the Act was meant "to deal with businesses, not individuals per se" (emphasis in original), that is, with mailorder houses, out-of-state sources, and the like; and that the Act was not intended to, and does not, reach an isolated intrastate receipt, such as Barrett's transaction, where the handgun was sold within Kentucky by a local merchant to a local resident with whom the merchant was acquainted, and where the transaction "has no apparent connection with interstate commerce," despite the weapon's manufacture and original distribution in other than Kentucky. We feel, however, that the language of 922 (h), the structure of the Act of which 922 (h) is a part, and the manifest purpose of Congress are all adverse to petitioner's position. A. Section 922 (h) pointedly and simply provides that it is unlawful for four categories of persons, including a convicted felon, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The quoted language is without ambiguity. It is directed unrestrictedly at the felon's receipt of any firearm that "has been" shipped in interstate commerce. It contains no limitation to a receipt which itself is part of the interstate movement. We therefore have no reason to differ with the Court of Appeals' majority's conclusion that the language "means exactly what it says." 504 F.2d, 32. It is to be noted, furthermore, that while the proscribed act, "to receive any firearm," is in the present tense, the interstate commerce reference is in the present perfect tense, denoting an act that has been completed. *217 Thus, there is no warping or stretching of language when the statute is applied to a firearm that already has completed its interstate journey and has come to rest in the dealer's showcase at the time of its purchase and receipt by the felon. Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section, namely, in 922 (h) (1) (a person who "has been convicted"), and in 922 (h) (4) (a person who "has been adjudicated" or who "has been committed"), in contrast to its use of the present tense ("who is") in 922 (h) (1), (2), and (3). The statute's pattern is consistent and no unintended misuse of language or of tense is apparent. Had Congress intended to confine 922 (h) to direct interstate receipt, it would have so provided, just as it did in other sections of the Gun Control Act. See 922 (a) (3) (declaring it unlawful for a nonlicensee to receive in the State where he resides a firearm purchased or obtained "by such person outside that State"); 922 (j) (prohibiting the receipt of a stolen firearm "moving as interstate commerce"); and 922 (k) (prohibiting the receipt "in interstate commerce" of a firearm the serial number of which has been removed). Statutes other than the Gun Control Act similarly utilize restrictive language when only direct interstate commerce is to be reached. See, e. g., 18 U.S. C. 659, 1084, 1201, 1231, 1951, 1952, 2313, 2315, and 2421, and 15 U.S. C. 77e. As we have said, there is no ambiguity in the words of 922 (h), and there is no justification for indulging in uneasy statutory construction. United v. Wiltberger, 5, Wheat. 76, 95-96 (1820); ; See United There is no occasion here to resort to a rule of lenity, *218 see ; United for there is no ambiguity that calls for a resolution in favor of lenity. A criminal statute, to be sure, is to be strictly construed, but it is "not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur ; 415 U. S., at B. The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, 922 (d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm (whether in an interstate or intrastate transaction, see ) to the same categories of potentially irresponsible persons. If 922 (h) were to be construed as petitioner suggests, it would not complement 922 (d), and a gap in the statute's coverage would be created, for then, although the licensee is prohibited from selling either interstate or intrastate to the designated person, the vendee is not prohibited from receiving unless the transaction is itself interstate. Similarly, 922 (g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S. C. 2 (b), causing it to be shipped interstate. Petitioner's proposed narrow construction of 922 (h) would reduce that section to a near redundancy with 922 (g), since almost every interstate shipment is likely to have been solicited or otherwise caused by the direct recipient. That proposed narrow construction would also *219 create another anomaly: if a prohibited person seeks to buy from his local dealer a firearm that is not currently in the dealer's stock, and the dealer then orders it interstate, that person violates 922 (h), but under the suggested construction, he would not violate 922 (h) if the firearm were already on the dealer's shelf. We note, too, that other sections of the Act clearly apply to and regulate intrastate sales of a gun that has moved in intrastate commerce. For example, the licensing provisions, 922 (a) (1) and 923 (a), apply to exclusively intrastate, as well as interstate, activity. Under 922 (d), as noted above, a licensee may not knowingly sell a firearm to any prohibited person, even if the sale is intrastate. Sections 922 (c) and (a) (6), relating, respectively, to a physical presence at the place of purchase and to the giving of false information, apply to intrastate as well as to interstate transactions. So, too, do 922 (b) (2) and (5). Construing 922 (h) as applicable to an intrastate retail sale that has been preceded by movement of the firearm in interstate commerce is thus consistent with the entire pattern of the Act. To confine 922 (h) to direct interstate receipts would result in having the Gun Control Act cover every aspect of intrastate transactions in firearms except receipt. This, however, and obviously, is the most crucial of all. Congress surely did not intend to except from the direct prohibitions of the statute the very act it went to such pains to prevent indirectly, through complex provisions, in the other sections of the Act. C. The legislative history is fully supportive of our construction of 922 (h). The Gun Control Act of 1968 was an amended and, for present purposes, a substantially identical version of Title IV of the Omnibus Crime *220 Control and Safe Streets Act of 1968. Each of the statutes enlarged and extended the Federal Firearms Act, (1938). Section 922 (h), although identical in its operative phrase with 2 (f) of the Federal Firearms Act, expanded the categories of persons prohibited from receiving firearms.[5] The new Act also added many prophylactic provisions, hereinabove referred to, governing intrastate as well as interstate transactions. See Zimring, Firearms and Federal Law: The Gun Control Act of 1968, 4 J. Legal Studies 133 But the 1938 Act, it was said, was designed "to prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind." S. Rep. No. 1189, 75th Cong., 1st Sess., 33 (1937). Nothing we have found in the committee reports or hearings on the 1938 legislation indicates any intention on the part of Congress to confine 2 (f) to direct interstate receipt of firearms. The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was "to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). See also 114 Cong. Rec. 13219 (1968) (remarks by Sen. Tydings); -825. Congressman Celler, the House Manager, expressed the same concern: "This bill seeks to maximize the possibility *221 of keeping firearms out of the hands of such persons." 114 Cong. Rec. 21784 (1968); In the light of this principal purpose, Congress could not have intended that the broad and unambiguous language of 922 (h) was to be confined, as petitioner suggests, to direct interstate receipts. That suggestion would remove from the statute the most usual transaction, namely, the felon's purchase or receipt from his local dealer. III Two statements of this Court in past cases, naturally relied upon by petitioner, deserve mention. The first is an observation made over 30 years ago in reference to the 1938 Act's 2 (f), the predecessor of 922 (h): "Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct." Tot v. United In that case, the Court held that the presumption contained in 2 (f), to the effect that "the possession of a firearm or ammunition by any such person [one convicted of a crime of violence or a fugitive from justice] shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act," was violative of due process. The quoted observation, of course, is merely a recital as to what the District Court and the Court of Appeals in that case had held and a further statement that the Government had agreed that the construction by the *222 lower courts was correct. Having made this observation, the Court then understandably moved on to the only issue in Tot, namely, the validity of the statutory presumption. The fact that the Government long ago took a narrow position on the reach of the 1938 Act may not serve to help its posture here, when it seemingly argues to the contrary, but it does not prevent the Government from arguing that the current gun control statute is broadly based and reaches a purchase such as that made by Barrett.[6] The second statement is more recent and appears in United supra.[7] The comment, of course, is dictum, for had to do with a prosecution under 18 U.S. C. App. 1202 (a), a provision which was part of Title VII, not of Title IV, of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. Section 1202 (a) concerned any member of stated categories of persons "who receives, possesses, or transports in commerce or affecting commerce any firearm." The Government contended that the statute did not require proof of a connection with interstate commerce. The Court held, however, that the statute was ambiguous and that, therefore, it must be read to require such a nexus. In so holding, the Court noted the connection between Title VII and Title IV, and observed that although subsections *223 of the two Titles addressed their prohibitions to some of the same people, each also reached groups not reached by the other. Then followed the dictum in question. The Court went on to state: "While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the `receipt' offense." n. 10. The dictum was just another observation made in passing as the Court proceeded to consider 1202 (a). The observation went so far as to intimate that Title IV was to be limited even with respect to a transaction possessing an interstate commerce nexus, a situation that Barrett here concedes is covered by 922 (h). In any event, the Court, by its statement in n. 10 of the opinion, reserved the question of the reach of Title IV for "some other day." That day is now at hand, with Barrett's case before us. And it is at hand with the benefit of full briefing and an awareness of the plain language of 922 (h), of the statute's position in the structure of the entire Act, and of the legislative aims and purpose. Furthermore, we are not willing to decide the present case on the assumption that Congress, in passing the Gun Control Act 25 years after Tot was decided, had the Court's casual recital in Tot in mind when it used language identical to that in the 1938 Act.[8] There is *224 one mention of Tot in the debates, 114 Cong. Rec. 21807 (1968), and one mention in the reports, S. Rep. No. 1097, 90th Cong., 2d Sess., 272 (1968) (additional views of Sens. Dirksen, Hruska, Thurmond, and Burdick). These reflect a concern with the fact that Tot eliminated the presumption of interstate movement, thus increasing the burden of proof on the Government. They do not focus on what showing was necessary to carry that burden of proof. Similarly, the few references to Tot in the hearings reflect objections to the elimination of the presumption, but mention only in passing the type of proof that the witness believed was necessary to satisfy 2 (f). See, e. g., Hearings on S. 1, Amendment 90 to S. 1, S. 1853, and S. 1854 before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 46 (1967); Hearings on H. R. 5037, H. R. 5038, H. R. 5384, H. R. 5385, and H. R. 5386 before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 561-562, 564, 677-678. Nothing in this legislative history persuades us that Congress intended to adopt Tot's limited interpretation. If we were to conclude otherwise, we would fly in the face of, and ignore, obvious congressional intent at the price of a passing recital. See Girouard v. United To hold, as the Court did in that Title VII, directed to a receipt of any firearm "in commerce or affecting commerce," requires only a showing that the firearm received previously traveled in interstate commerce, but that Title IV, relating to a receipt of any firearm "which has been shipped or transported in interstate. commerce," is limited to the receipt of the firearm as part of an interstate movement, would be inconsistent construction of sections of the same Act and, *225 indeed, would be downgrading the stronger language and upgrading the weaker. We conclude that 922 (h) covers the intrastate receipt, such as petitioner's purchase here, of a firearm that previously had moved in interstate commerce. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.

Justice Souter

majority

Nationwide Mut. Ins. Co. v. Darden

https://www.courtlistener.com/opinion/112710/nationwide-mut-ins-co-v-darden/

https://www.courtlistener.com/api/rest/v3/clusters/112710/

1991-049

In this case we construe the term "employee" as it appears in § 3(6) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 834, 29 U.S. C. § 1002(6), and read it to incorporate traditional agency law criteria for identifying master-servant relationships. I From 1962 through 1980, respondent Robert Darden operated an insurance agency according to the terms of several *320 contracts he signed with petitioners Nationwide Mutual Insurance Co. et al. Darden promised to sell only Nationwide insurance policies, and, in exchange, Nationwide agreed to pay him commissions on his sales and enroll him in a company retirement scheme called the "Agent's Security Compensation Plan" (Plan). The Plan consisted of two different programs: the "Deferred Compensation Incentive Credit Plan," under which Nationwide annually credited an agent's retirement account with a sum based on his business performance, and the "Extended Earnings Plan," under which Nationwide paid an agent, upon retirement or termination, a sum equal to the total of his policy renewal fees for the previous 12 months. Such were the contractual terms, however, that Darden would forfeit his entitlement to the Plan's benefits if, within a year of his termination and 25 miles of his prior business location, he sold insurance for Nationwide's competitors. The contracts also disqualified him from receiving those benefits if, after he stopped representing Nationwide, he ever induced a Nationwide policyholder to cancel one of its policies. In November 1980, Nationwide exercised its contractual right to end its relationship with Darden. A month later, Darden became an independent insurance agent and, doing business from his old office, sold insurance policies for several of Nationwide's competitors. The company reacted with the charge that his new business activities disqualified him from receiving the Plan benefits to which he would have been entitled otherwise. Darden then sued for the benefits, which he claimed were nonforfeitable because already vested under the terms of ERISA. 29 U.S. C. § 1053(a). Darden brought his action under 29 U.S. C. § 1132(a), which enables a benefit plan "participant" to enforce the substantive provisions of ERISA. The Act elsewhere defines "participant" as "any employee or former employee of an employer . . . who is or may become eligible to receive a benefit *321 of any type from an employee benefit plan . . . ." § 1002(7). Thus, Darden's ERISA claim can succeed only if he was Nationwide's "employee," a term the Act defines as "any individual employed by an employer." § 1002(6). It was on this point that the District Court granted summary judgment to Nationwide. After applying common-law agency principles and, to an extent unspecified, our decision in United States v. Silk, 331 U.S. 704 (1947), the court found that "`the total factual context' of Mr. Darden's relationship with Nationwide shows that he was an independent contractor and not an employee." App. to Pet. for Cert. 47a, 50a, quoting NLRB v. United Ins. Co. of America, 390 U.S. 254 (1968). The United States Court of Appeals for the Fourth Circuit vacated. Darden v. Nationwide Mutual Ins. Co., 796 F.2d 701 (1986). After observing that "Darden most probably would not qualify as an employee" under traditional principles of agency law, id., at 705, it found the traditional definition inconsistent with the "`declared policy and purposes' " of ERISA, id., at 706, quoting Silk, supra, at 713, and NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131-132 (1944), and specifically with the congressional statement of purpose found in § 2 of the Act, 29 U.S. C. § 1001.[1] It therefore held that an ERISA plaintiff can qualify as an "employee" simply by showing "(1) that he had a reasonable expectation that he would receive [pension] benefits, (2) that he relied on this expectation, and (3) that he lacked the economic bargaining power to contract out of [benefit plan] forfeiture provisions." *322 922 F.2d 203, 205 (CA4 1991) (summarizing 796 F.2d 701 (CA4 1986)). The court remanded the case to the District Court, which then found that Darden had been Nationwide's "employee" under the standard set by the Court of Appeals. 717 F. Supp. 388 (EDNC 1989). The Court of Appeals affirmed. 922 F.2d 203 (1991).[2] In due course, Nationwide filed a petition for certiorari, which we granted on October 15, 1991. 502 U.S. 905. We now reverse. II We have often been asked to construe the meaning of "employee" where the statute containing the term does not helpfully define it. Most recently we confronted this problem in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), a case in which a sculptor and a nonprofit group each claimed copyright ownership in a statue the group had commissioned from the artist. The dispute ultimately turned on whether, by the terms of § 101 of the Copyright Act of 1976, 17 U.S. C. § 101, the statue had been "prepared by an employee within the scope of his or her employment." Because the Copyright Act nowhere defined the term "employee," we unanimously applied the "well established" principle that "[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms. . . . In the past, when Congress has used the term `employee' without defining it, we have concluded that Congress intended to describe the conventional *323 master-servant relationship as understood by common-law agency doctrine. See, e. g., Kelley v. Southern Pacific Co., 419 U.S. 318, 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94 (1915)." 490 U.S., at 739-740 (internal quotation marks omitted). While we supported this reading of the Copyright Act with other observations, the general rule stood as independent authority for the decision. So too should it stand here. ERISA's nominal definition of "employee" as "any individual employed by an employer," 29 U.S. C. § 1002(6), is completely circular and explains nothing. As for the rest of the Act, Darden does not cite, and we do not find, any provision either giving specific guidance on the term's meaning or suggesting that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Thus, we adopt a common-law test for determining who qualifies as an "employee" under ERISA,[3] a test we most recently summarized in Reid: "In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired *324 party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." 490 U.S., at 751-752 (footnotes omitted). Cf. Restatement (Second) of Agency § 220(2) (1958) (listing nonexhaustive criteria for identifying master-servant relationship); Rev. Rul. 87-41, 1987-1 Cum. Bull. 296, 298-299 (setting forth 20 factors as guides in determining whether an individual qualifies as a common-law "employee" in various tax law contexts). Since the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U. S., at 258. In taking its different tack, the Court of Appeals cited NLRB v. Hearst Publications, Inc., 322 U. S., at 120-129, and United States v. Silk, 331 U. S., at 713, for the proposition that "the content of the term `employee' in the context of a particular federal statute is `to be construed "in the light of the mischief to be corrected and the end to be attained."` " Darden, 796 F. 2d, at 706, quoting Silk, supra, at 713, in turn quoting Hearst, supra, at 124. But Hearst and Silk, which interpreted "employee" for purposes of the National Labor Relations Act and Social Security Act, respectively, are feeble precedents for unmooring the term from the common law. In each case, the Court read "employee," which neither statute helpfully defined,[4] to imply something broader than the common-law definition; after each opinion, Congress *325 amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning. See United Ins. Co., supra, at 256 ("Congressional reaction to [Hearst] was adverse and Congress passed an amendment. . . [t]he obvious purpose of [which] was to have the . . . courts apply general agency principles in distinguishing between employees and independent contractors under the Act"); Social Security Act of 1948, ch. 468, § 1(a), 62 Stat. 438 (1948) (amending statute to provide that term "employee" "does not include . . . any individual who, under the usual common-law rules applicable in determining the employeremployee relationship, has the status of an independent contractor") (emphasis added); see also United States v. W. M. Webb, Inc., 397 U.S. 179, 183-188 (1970) (discussing congressional reaction to Silk ). To be sure, Congress did not, strictly speaking, "overrule" our interpretation of those statutes, since the Constitution invests the Judiciary, not the Legislature, with the final power to construe the law. But a principle of statutory construction can endure just so many legislative revisitations, and Reid `s presumption that Congress means an agency law definition for "employee" unless it clearly indicates otherwise signaled our abandonment of Silk `s emphasis on construing that term "`in the light of the mischief to be corrected and the end to be attained.' " Silk, supra, at 713, quoting Hearst, supra, at 124. At oral argument, Darden tried to subordinate Reid to Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947), which adopted a broad reading of "employee" under the Fair Labor Standards Act (FLSA). And amicus United States, while rejecting Darden's position, also relied on Rutherford Food for the proposition that, when enacting ERISA, Congress must have intended a modified common-law definition of "employee" that would advance, in a way not defined, the Act's "remedial purposes." Brief for United States as Ami- *326 cus Curiae 15-21.[5] But Rutherfood Food supports neither position. The definition of "employee" in the FLSA evidently derives from the child labor statutes, see Rutherford Food, supra, at 728, and, on its face, goes beyond its ERISA counterpart. While the FLSA, like ERISA, defines an "employee" to include "any individual employed by an employer," it defines the verb "employ" expansively to mean "suffer or permit to work." 52 Stat. 1060, § 3, codified at 29 U.S. C. §§ 203(e), (g). This latter definition, whose striking breadth we have previously noted, Rutherford Food, supra, at 728, stretches the meaning of "employee" to cover some parties who might not qualify as such under a strict application of traditional agency law principles. ERISA lacks any such provision, however, and the textual asymmetry between the two statutes precludes reliance on FLSA cases when construing ERISA's concept of "employee." Quite apart from its inconsistency with our precedents, the Fourth Circuit's analysis reveals an approach infected with circularity and unable to furnish predictable results. Applying the first element of its test, which ostensibly enquires into an employee's "expectations," the Court of Appeals concluded that Nationwide had "created a reasonable expectation on the `employees' part that benefits would be paid to them in the future," Darden, 796 F. 2d, at 706, by establishing "a comprehensive retirement benefits program for its insurance agents," id., at 707. The court thought it was simply irrelevant that the forfeiture clause in Darden's contract "limited" his expectation of receiving pension benefits, since "it is precisely that sort of employer-imposed condition on the employee's anticipations that Congress intended to outlaw *327 with the enactment of ERISA." Id., at 707, n. 7 (emphasis added). Thus, the Fourth Circuit's test would turn not on a claimant's actual "expectations," which the court effectively deemed inconsequential, ibid., but on his statutory entitlement to relief, which itself depends on his very status as an "employee." This begs the question. This circularity infects the test's second prong as well, which considers the extent to which a claimant has relied on his "expectation" of benefits by "remaining for `long years,' or a substantial period of time, in the `employer's' service, and by foregoing other significant means of providing for [his] retirement." Id., at 706. While this enquiry is ostensibly factual, we have seen already that one of its objects may not be: to the extent that actual "expectations" are (as in Darden's case) unnecessary to relief, the nature of a claimant's required "reliance" is left unclear. Moreover, any enquiry into "reliance," whatever it might entail, could apparently lead to different results for claimants holding identical jobs and enrolled in identical plans. Because, for example, Darden failed to make much independent provision for his retirement, he satisfied the "reliance" prong of the Fourth Circuit's test, see 922 F.2d, at 206, whereas a more provident colleague who signed exactly the same contracts, but saved for a rainy day, might not. Any such approach would severely compromise the capacity of companies like Nationwide to figure out who their "employees" are and what, by extension, their pension-fund obligations will be. To be sure, the traditional agency law criteria offer no paradigm of determinacy. But their application generally turns on factual variables within an employer's knowledge, thus permitting categorical judgments about the "employee" status of claimants with similar job descriptions. Agency law principles comport, moreover, with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor. *328 III While the Court of Appeals noted that "Darden most probably would not qualify as an employee" under traditional agency law principles, Darden, supra, at 705, it did not actually decide that issue. We therefore reverse the judgment and remand the case to that court for proceedings consistent with this opinion. So ordered. *329

In this case we construe the term "employee" as it appears in 3(6) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1002(6), and read it to incorporate traditional agency law criteria for identifying master-servant relationships. I From 1962 through 1980, respondent Robert operated an insurance agency according to the terms of several *320 contracts he signed with petitioners Nationwide Mutual Insurance et al. promised to sell only Nationwide insurance policies, and, in exchange, Nationwide agreed to pay him commissions on his sales and enroll him in a company retirement scheme called the "Agent's Security Compensation Plan" (Plan). The Plan consisted of two different programs: the "Deferred Compensation Incentive Credit Plan," under which Nationwide annually credited an agent's retirement account with a sum based on his business performance, and the "Extended Earnings Plan," under which Nationwide paid an agent, upon retirement or termination, a sum equal to the total of his policy renewal fees for the previous 12 months. Such were the contractual terms, however, that would forfeit his entitlement to the Plan's benefits if, within a year of his termination and 25 miles of his prior business location, he sold insurance for Nationwide's competitors. The contracts also disqualified him from receiving those benefits if, after he stopped representing Nationwide, he ever induced a Nationwide policyholder to cancel one of its policies. In November 1980, Nationwide exercised its contractual right to end its relationship with A month later, became an independent insurance agent and, doing business from his old office, sold insurance policies for several of Nationwide's competitors. The company reacted with the charge that his new business activities disqualified him from receiving the Plan benefits to which he would have been entitled otherwise. then sued for the benefits, which he claimed were nonforfeitable because already vested under the terms of ERISA. 29 U.S. C. 1053(a). brought his action under 29 U.S. C. 1132(a), which enables a benefit plan "participant" to enforce the substantive provisions of ERISA. The Act elsewhere defines "participant" as "any employee or former employee of an employer who is or may become eligible to receive a benefit *321 of any type from an employee benefit plan" 1002(7). Thus, 's ERISA claim can succeed only if he was Nationwide's "employee," a term the Act defines as "any individual employed by an employer." 1002(6). It was on this point that the District Court granted summary judgment to Nationwide. After applying common-law agency principles and, to an extent unspecified, our decision in United the court found that "`the total factual context' of Mr. 's relationship with Nationwide shows that he was an independent contractor and not an employee." App. to Pet. for Cert. 47a, 50a, quoting The United States Court of Appeals for the Fourth Circuit vacated. After observing that " most probably would not qualify as an employee" under traditional principles of agency law, it found the traditional definition inconsistent with the "`declared policy and purposes' " of ERISA, quoting and and specifically with the congressional statement of purpose found in 2 of the Act, 29 U.S. C. 1001.[1] It therefore held that an ERISA plaintiff can qualify as an "employee" simply by showing "(1) that he had a reasonable expectation that he would receive [pension] benefits, (2) that he relied on this expectation, and (3) that he lacked the economic bargaining power to contract out of [benefit plan] forfeiture provisions." *322 ). The court remanded the case to the District Court, which then found that had been Nationwide's "employee" under the standard set by the Court of Appeals. The Court of Appeals affirmed.[2] In due course, Nationwide filed a petition for certiorari, which we granted on October 15, We now reverse. II We have often been asked to construe the meaning of "employee" where the statute containing the term does not helpfully define it. Most recently we confronted this problem in Community for Creative a case in which a sculptor and a nonprofit group each claimed copyright ownership in a statue the group had commissioned from the artist. The dispute ultimately turned on whether, by the terms of 101 of the Copyright Act of 1976, 17 U.S. C. 101, the statue had been "prepared by an employee within the scope of his or her employment." Because the Copyright Act nowhere defined the term "employee," we unanimously applied the "well established" principle that "[w]here Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms. In the past, when Congress has used the term `employee' without defining it, we have concluded that Congress intended to describe the conventional *323 master-servant relationship as understood by common-law agency doctrine. See, e. g., ; ;" -740 While we supported this reading of the Copyright Act with other observations, the general rule stood as independent authority for the decision. So too should it stand here. ERISA's nominal definition of "employee" as "any individual employed by an employer," 29 U.S. C. 1002(6), is completely circular and explains nothing. As for the rest of the Act, does not cite, and we do not find, any provision either giving specific guidance on the term's meaning or suggesting that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Thus, we adopt a common-law test for determining who qualifies as an "employee" under ERISA,[3] a test we most recently summarized in Reid: "In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired *324 party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." -752 Cf. Restatement (Second) of Agency 220(2) (1958) (listing nonexhaustive criteria for identifying master-servant relationship); Rev. Rul. 87-41, 1987-1 Cum. Bull. 296, 298-299 (setting forth 20 factors as guides in determining whether an individual qualifies as a common-law "employee" in various tax law contexts). Since the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." In taking its different tack, the Court of Appeals cited -129, and United 331 U. S., for the proposition that "the content of the term `employee' in the context of a particular federal statute is `to be construed "in the light of the mischief to be corrected and the end to be attained."` " 796 F. 2d, quoting in turn quoting But and which interpreted "employee" for purposes of the National Labor Relations Act and Social Security Act, respectively, are feeble precedents for unmooring the term from the common law. In each case, the Court read "employee," which neither statute helpfully defined,[4] to imply something broader than the common-law definition; after each opinion, Congress *325 amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning. See United Ins. ("Congressional reaction to [] was adverse and Congress passed an amendment. [t]he obvious purpose of [which] was to have the courts apply general agency principles in distinguishing between employees and independent contractors under the Act"); Social Security Act of 18, ch. 468, 1(a), (18) ; see also United States v. W. M. Webb, (discussing congressional reaction to ). To be sure, Congress did not, strictly speaking, "overrule" our interpretation of those statutes, since the Constitution invests the Judiciary, not the Legislature, with the final power to construe the law. But a principle of statutory construction can endure just so many legislative revisitations, and Reid `s presumption that Congress means an agency law definition for "employee" unless it clearly indicates otherwise signaled our abandonment of `s emphasis on construing that term "`in the light of the mischief to be corrected and the end to be attained.' " quoting At oral argument, tried to subordinate Reid to Rutherford which adopted a broad reading of "employee" under the Fair Labor Standards Act (FLSA). And amicus United States, while rejecting 's position, also relied on Rutherford for the proposition that, when enacting ERISA, Congress must have intended a modified common-law definition of "employee" that would advance, in a way not defined, the Act's "remedial purposes." Brief for United States as Ami- *326 cus Curiae 15-21.[5] But Rutherfood supports neither position. The definition of "employee" in the FLSA evidently derives from the child labor statutes, see Rutherford and, on its face, goes beyond its ERISA counterpart. While the FLSA, like ERISA, defines an "employee" to include "any individual employed by an employer," it defines the verb "employ" expansively to mean "suffer or permit to work." 3, codified at 29 U.S. C. 203(e), (g). This latter definition, whose striking breadth we have previously noted, Rutherford stretches the meaning of "employee" to cover some parties who might not qualify as such under a strict application of traditional agency law principles. ERISA lacks any such provision, however, and the textual asymmetry between the two statutes precludes reliance on FLSA cases when construing ERISA's concept of "employee." Quite apart from its inconsistency with our precedents, the Fourth Circuit's analysis reveals an approach infected with circularity and unable to furnish predictable results. Applying the first element of its test, which ostensibly enquires into an employee's "expectations," the Court of Appeals concluded that Nationwide had "created a reasonable expectation on the `employees' part that benefits would be paid to them in the future," 796 F. 2d, by establishing "a comprehensive retirement benefits program for its insurance agents," The court thought it was simply irrelevant that the forfeiture clause in 's contract "limited" his expectation of receiving pension benefits, since "it is precisely that sort of employer-imposed condition on the employee's anticipations that Congress intended to outlaw *327 with the enactment of ERISA." n. 7 Thus, the Fourth Circuit's test would turn not on a claimant's actual "expectations," which the court effectively deemed inconsequential, ib but on his statutory entitlement to relief, which itself depends on his very status as an "employee." This begs the question. This circularity infects the test's second prong as well, which considers the extent to which a claimant has relied on his "expectation" of benefits by "remaining for `long years,' or a substantial period of time, in the `employer's' service, and by foregoing other significant means of providing for [his] retirement." While this enquiry is ostensibly factual, we have seen already that one of its objects may not be: to the extent that actual "expectations" are (as in 's case) unnecessary to relief, the nature of a claimant's required "reliance" is left unclear. Moreover, any enquiry into "reliance," whatever it might entail, could apparently lead to different results for claimants holding identical jobs and enrolled in identical plans. Because, for example, failed to make much independent provision for his retirement, he satisfied the "reliance" prong of the Fourth Circuit's test, see whereas a more provident colleague who signed exactly the same contracts, but saved for a rainy day, might not. Any such approach would severely compromise the capacity of companies like Nationwide to figure out who their "employees" are and what, by extension, their pension-fund obligations will be. To be sure, the traditional agency law criteria offer no paradigm of determinacy. But their application generally turns on factual variables within an employer's knowledge, thus permitting categorical judgments about the "employee" status of claimants with similar job descriptions. Agency law principles comport, moreover, with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor. *328 III While the Court of Appeals noted that " most probably would not qualify as an employee" under traditional agency law principles, it did not actually decide that issue. We therefore reverse the judgment and remand the case to that court for proceedings consistent with this opinion. So ordered. *329

Justice Stevens

dissenting

Lewis v. Casey

https://www.courtlistener.com/opinion/118054/lewis-v-casey/

https://www.courtlistener.com/api/rest/v3/clusters/118054/

1995-081

The Fourteenth Amendment prohibits the States from depriving any person of life, liberty, or property without due process of law. While at least one 19th-century court characterized the prison inmate as a mere "slave of the State," Ruffin v. Commonwealth, 62 Va. 790, 796 (1871), in recent decades this Court has repeatedly held that the convicted felon's loss of liberty is not total. See Turner v. Safley, 482 U.S. 78, 84 (1987); e. g., Cruz v. Beto, 405 U.S. 319, 321 (1972). "Prison walls do not . . .separat[e] . . . inmatesfrom the protections of the Constitution," Turner, 482 U. S., at 84, and even convicted criminals retain some of the liberties enjoyed by all who live outside those walls in communities to which most prisoners will someday return. Within the residuum of liberty retained by prisoners are freedoms identified in the First Amendment to the Constitution: *405 freedom to worship according to the dictates of their own conscience, e. g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Cruz, 405 U. S., at 321, freedom to communicate with the outside world, e. g., Thornburgh v. Abbott, 490 U.S. 401, 411-412 (1989), and the freedom to petition their government for a redress of grievances, e. g., Johnson v. Avery, 393 U.S. 483, 485 (1969). While the exercise of these freedoms may of course be regulated and constrained by their custodians, they may not be obliterated either actively or passively. Indeed, our cases make it clear that the States must take certain affirmative steps to protect some of the essential aspects of liberty that might not otherwise survive in the controlled prison environment. The "well-established" right of access to the courts, ante, at 350, is one of these aspects of liberty that States must affirmatively protect. Where States provide for appellate review of criminal convictions, for example, they have an affirmative duty to make transcripts available to indigent prisoners free of charge. Griffin v. Illinois, 351 U.S. 12, 19-20 (1956) (requiring States to waive transcript fees for indigent inmates); see also Burns v. Ohio, 360 U.S. 252, 257258 (1959) (requiring States to waive filing fees for indigent prisoners). It also protects an inmate's right to file complaints, whether meritorious or not, see Ex parte Hull, 312 U.S. 546 (1941) (affirming right to file habeas petitions even if prison officials deem them meritless, in case in which petition at issue was meritless), and an inmate's right to have access to fellow inmates who are able to assist an inmate in preparing, "with reasonable adequacy," such complaints. Johnson, 393 U. S., at 489; Wolff v. McDonnell, 418 U.S. 539, 580 (1974).[1] And for almost two decades, it has explicitly *406 included the right of prisoners to have access to "adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). As the Court points out, States are free to "experiment" with the types of legal assistance that they provide to inmates, ante, at 352-as long as the experiment provides adequate access. The constitutional violations alleged in this case are similar to those that the District Court previously found in one of Arizona's nine prisons. See Gluth v. Kangas, 773 F. Supp. 1309 (Ariz. 1988), aff'd, 951 F.2d 1504 (CA9 1991). The complaint in this case was filed in 1990 by 22 prisoners on behalf of a class including all inmates in the Arizona prison system. The prisoners alleged that the State's institutions provided inadequate access to legal materials or other assistance, App. 31-33, and that as a result, "[p]risoners are harmed by the denial of meaningful access to the courts." Id., at 32. The District Court agreed, concluding that the State had failed, throughout its prison system, to provide adequate access to legal materials, particularly for those in administrative segregation, *407 or "lockdown," and that the State had failed to provide adequate legal assistance to illiterate and non-English speaking inmates. After giving all the parties an opportunity to participate in the process of drafting the remedy, the court entered a detailed (and I agree excessively so, see infra, at 409) order to correct the State's violations. As I understand the record, the State has not argued that the right of effective access to the courts, as articulated in Bounds, should be limited in any way. It has not challenged the standing of the named plaintiffs to represent the class, nor has it questioned the propriety of the District Court's order allowing the case to proceed as a class action. I am also unaware of any objection having been made in the District Court to the plaintiffs' constitutional standing in this case, and the State appears to have conceded standing with respect to most claims in the Court of Appeals.[2] Yet the majority chooses to address these issues unnecessarily and, in some instances, incorrectly. For example, although injury in fact certainly is a jurisdictional issue into which we inquire absent objection from the parties, even the majority finds on the record that at least two of the plaintiffs had standing in this case, ante, at 356,[3]*408 which should be sufficient to satisfy any constitutional concerns.[4] Yet the Court spends 10 pages disagreeing. Even if we had reason to delve into standing requirements in this case, the Court's view of those requirements is excessively strict. I think it perfectly clear that the prisoners had standing, even absent the specific examples of failed complaints. There is a constitutional right to effective access, and if a prisoner alleges that he personally has been denied that right, he has standing to sue.[5] One of our first cases to address directly the right of access to the courts illustrates this principle particularly well. In Ex parte Hull, we reviewed the constitutionality of a state prison's rule that impeded an inmate's access to the courts. The rule authorized corrections officers to intercept mail addressed to a court and refer it to the legal investigator for the parole board to determine whether there was sufficient merit in the claim to justify its submission to a court. Meritless claims were simply not delivered. Petitioner Hull succeeded in smuggling papers to his father, who in turn delivered them to this Court. Although we held that the smuggled petition had insufficient merit even to require an answer from the *409 State, 312 U.S., at 551, we nevertheless held that the regulation was invalid for the simple and sufficient reason that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for writ of habeas corpus." Id., at 549. At first glance, the novel approach adopted by the Court today suggests that only those prisoners who have been refused the opportunity to file claims later found to have arguable merit should be able to challenge a rule as clearly unconstitutional as the one addressed in Hull. Perhaps the standard is somewhat lower than it appears in the first instance; using Hull as an example, the Court suggests that even facially meritless petitions can provide a sufficient basis for standing. See ante, at 352, n. 2. Nonetheless, because prisoners are uniquely subject to the control of the State, and because unconstitutional restrictions on the right of access to the courts—whether through nearly absolute bars like that in Hull or through inadequate legal resources—frustrate the ability of prisoners to identify, articulate, and present to courts injuries flowing from that control, I believe that any prisoner who claims to be impeded by such barriers has alleged constitutionally sufficient injury in fact. My disagreement with the Court is not complete: I am persuaded—as respondents' counsel essentially has conceded—that the relief ordered by the District Court was broader than necessary to redress the constitutional violations identified in the District Court's findings. I therefore agree that the case should be remanded. I cannot agree, however, with the Court's decision to use the case as an opportunity to meander through the laws of standing and access to the courts, expanding standing requirements here and limiting rights there,[6] when the most obvious concern in *410 the case is with the simple disjunct between the limited scope of the injuries articulated in the District Court's findings and the remedy it ordered as a result. Because most or all of petitioners' concerns regarding the order could be addressed with a simple remand, I see no need to resolve the other constitutional issues that the Court reaches out to address. The Court is well aware that much of its discussion preceding Part III is unnecessary to the decision. Reflecting on its view that the District Court railroaded the State into accepting its order lock, stock, and barrel, the Court concludes on the last page of its decision that "[t]he State was entitled to far more than an opportunity for rebuttal, and on that ground alone this order would have to be set aside." Ante, at 363. To the extent that the majority suggests that the order in this case is flawed because of a breakdown in the process of court-supervised negotiation that should generally precede systemic relief, I agree with it. I also agree that the failure in that process "alone " would justify a remand *411 in this case. I emphatically disagree, however, with the Court's characterization of who is most to blame for the objectionable character of the final order. Much of the blame for its breadth, I propose, can be placed squarely in the lap of the State. A fair evaluation of the procedures followed in this case must begin with a reference to Gluth, the earlier case in which the same District Judge found petitioners guilty of a systemic constitutional violation in one facility. In that case the District Court expressly found that the state officials had demonstrated "a callous unwillingness to face the issues" and had pursued "diversion[ary] tactics" that "forced [the court] to take extraordinary measures." 773 F. Supp., at 1312, 1314. Despite the Court's request that they propose an appropriate remedy, the officials refused to do so. It is apparent that these defense tactics played an important role in the court's decision to appoint a Special Master to assistin the fashioning of the remedy that was ordered in Gluth. Only after that order had been affirmed by the Court of Appeals did respondents commence this action seeking to obtain similar relief for the entire inmate population. After a trial that lasted for 11 days over the course of two months, the District Court found that several of petitioners' policies denied illiterate and non-English-speaking prisoners meaningful access to the courts. Given the precedent established in Gluth, the express approval of that plan by the Court of Appeals, and the District Court's evaluation of the State's conclusions regarding the likelihood of voluntary remedial schemes, particularly in view of the State's unwillingness to play a constructive role in the remedy stage of that case, the District Court not unreasonably entered an order appointing the same Special Master and directing him to propose a similar remedy in this case. Although the District Court instructed the parties to submit specific objections to the remedial template derived from Gluth, see App. to Pet. for Cert. 89a, nothing in the court's order prevented the *412 State from submitting its own proposals without waiving its right to challenge the findings on the liability issues or its right to object to any remedial proposals by either the Master or the respondents. The District Court also told the parties that it would consider settlement offers, and instructed the Master to provide "such guidance and counsel as either of the parties may request to effect such a settlement." Id., at 95a. In response to these invitations to participate in the remedial process, the State filed only four half-hearted sets of written objections over the course of the six months during which the Special Master was evaluating the court's proposed order. See App. 218-221, 225-228, 231-238, and 239240. Although the Master rejected about half of these narrow objections, he accepted about an equal number, noting that the State's limited formal participation had been "important" and "very helpful." Proposed Order (Permanent Injunction) in No. CIV 90-0054 (D. Ariz.), p. iii. After the Master released his proposed order, the State offered another round of objections. See App. 243-250. Although the District Court informed the Master that the objections could be considered, they did not have to be; the court reasonably noted that the State had been aware for six months about the potential scope of the order, and that it could have mounted the same objections prior to the deadline that the court had set at the beginning of the process. Id., at 251-253. One might have imagined that the State, faced with the potential of this "inordinately—indeed, wildly—intrusive" remedial scheme, ante, at 362, would have taken more care to protect its interests before the District Court and the Special Master, particularly given the express willingness of both to consider the State's objections. Having failed to zealously represent its interests in the District Court, the State's present complaints seem rather belated; the Court has generally been less than solicitous to claims that have *413 not been adequately pressed below. Cf., e. g., McCleskey v. Zant, 499 U.S. 467, 488-489 (1991); compare ante, at 363364, n. 8 (State made boilerplate reservation of rights in each set of objections), with Gray v. Netherland, ante, at 163 ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a claim to a state court"). The State's lack of interest in representing its interests is clear not only from the sparse objections in the District Court, but from proceedings both here and in the Court of Appeals. In argument before both courts, counsel for the prisoners have conceded that certain aspects of the consent decree exceeded the necessary relief. See, e. g., 43 F.3d 1261, 1271 (CA9 1994) (prisoners agree that typewriters are not required); Tr. of Oral Arg. 31 (provisions regarding noise in library are unnecessary). This flexibility further suggests that the State could have sought relief from aspects of the plan through negotiation. Indeed, at oral argument in the Ninth Circuit, the parties for both sides suggested that they were willing to settle the case, and the court deferred submission of the case for 30 days to enable a settlement. "However, before the settlement process had even begun, [the State] declined to mediate." 43 F.3d, at 1265, n. 1. Notably, this is the only comment made by the appellate court regarding the process that led to the fashioning of the remedy in this case. A fair reading of the record, therefore, reveals that the State had more than six months within which it could have initiated settlement discussions, presented more ambitious objections to the proposed decree reflecting the concerns it has raised before this Court, or offered up its own plan for the review of the plaintiffs and the Special Master. It took none of these steps. Instead, it settled for piecemeal and belated challenges to the scope of the proposed plan. The Court implies that the District Court's decision to use the decree entered in Gluth as the starting point for fashioning *414 the relief to be ordered was unfair to petitioners and should not be repeated in comparable circumstances. The browbeaten State, the Court suggests, was "entitled to far more than an opportunity for rebuttal." Ante, at 363. I strongly disagree with this characterization of the process. Whether this Court now approves or disapproves of the contents of the Gluth decree, the Court of Appeals had affirmed it in its entirety when this case was tried, and it was surely appropriate for the District Court to use it as a startingpoint for its remedial task in this case. Petitioners were represented by competent counsel who could have advanced their own proposals for relief if they had thought it expedient to do so. By going further than necessary to correct the excesses of the order, the Court's decision rewards the State for the uncooperative posture it has assumed throughout the long period of litigating both Gluth and this case. See ante, at 354-355; Gluth, 773 F. Supp., at 1312-1316. Although the State's approach has proven sound as a matter of tactics, allowing it to prevail in a forum that is not as inhibited by precedent as are other federal courts, the Court's decision undermines the authority and equitable powers of not only this District Court, but District Courts throughout the Nation. It is quite wrong, in my judgment, for this Court to suggest that the District Court denied the State a fair opportunity to be heard, and entirely unnecessary for it to dispose of the smorgasbord of constitutional issues that it consumes in Part II. Accordingly, while I agree that a remand is appropriate, I cannot join the Court's opinion.

The Fourteenth Amendment prohibits the s from depriving any person of life, liberty, or property without due process of law. While at least one 19th-century court characterized the prison inmate as a mere "slave of the" in recent decades this Court has repeatedly held that the convicted felon's loss of liberty is not total. See ; e. g., "Prison walls do notseparat[e] inmatesfrom the protections of the Constitution," 482 U. S., at and even convicted criminals retain some of the liberties enjoyed by all who live outside those walls in communities to which most prisoners will someday return. Within the residuum of liberty retained by prisoners are freedoms identified in the First Amendment to the Constitution: *405 freedom to worship according to the dictates of their own conscience, e. g., ; 405 U. S., at freedom to communicate with the outside world, e. g., and the freedom to petition their government for a redress of grievances, e. g., While the exercise of these freedoms may of course be regulated and constrained by their custodians, they may not be obliterated either actively or passively. Indeed, our cases make it clear that the s must take certain affirmative steps to protect some of the essential aspects of liberty that might not otherwise survive in the controlled prison environment. The "well-established" right of access to the courts, ante, at 350, is one of these aspects of liberty that s must affirmatively protect. Where s provide for appellate review of criminal convictions, for example, they have an affirmative duty to make transcripts available to indigent prisoners free of charge. ; see also It also protects an inmate's right to file complaints, whether meritorious or not, see Ex parte Hull, and an inmate's right to have access to fellow inmates who are able to assist an inmate in preparing, "with reasonable adequacy," such complaints. Johnson, ;[1] And for almost two decades, it has explicitly *406 included the right of prisoners to have access to "adequate law libraries or adequate assistance from persons trained in the law." As the Court points out, s are free to "experiment" with the types of legal assistance that they provide to inmates, ante, at 352-as long as the experiment provides adequate access. The constitutional violations alleged in this case are similar to those that the District Court previously found in one of Arizona's nine prisons. See aff'd, The complaint in this case was filed in 1990 by 22 prisoners on behalf of a class including all inmates in the Arizona prison system. The prisoners alleged that the 's institutions provided inadequate access to legal materials or other assistance, App. 31-33, and that as a result, "[p]risoners are harmed by the denial of meaningful access to the courts." The District Court agreed, concluding that the had failed, throughout its prison system, to provide adequate access to legal materials, particularly for those in administrative segregation, *407 or "lockdown," and that the had failed to provide adequate legal assistance to illiterate and non-English speaking inmates. After giving all the parties an opportunity to participate in the process of drafting the remedy, the court entered a detailed (and I agree excessively so, see infra, at 409) order to correct the 's violations. As I understand the record, the has not argued that the right of effective access to the courts, as articulated in Bounds, should be limited in any way. It has not challenged the standing of the named plaintiffs to represent the class, nor has it questioned the propriety of the District Court's order allowing the case to proceed as a class action. I am also unaware of any objection having been made in the District Court to the plaintiffs' constitutional standing in this case, and the appears to have conceded standing with respect to most claims in the Court of Appeals.[2] Yet the majority chooses to address these issues unnecessarily and, in some instances, incorrectly. For example, although injury in fact certainly is a jurisdictional issue into which we inquire absent objection from the parties, even the majority finds on the record that at least two of the plaintiffs had standing in this case, ante, at 356,[3]*408 which should be sufficient to satisfy any constitutional concerns.[4] Yet the Court spends 10 pages disagreeing. Even if we had reason to delve into standing requirements in this case, the Court's view of those requirements is excessively strict. I think it perfectly clear that the prisoners had standing, even absent the specific examples of failed complaints. There is a constitutional right to effective access, and if a prisoner alleges that he personally has been denied that right, he has standing to sue.[5] One of our first cases to address directly the right of access to the courts illustrates this principle particularly well. In Ex parte Hull, we reviewed the constitutionality of a state prison's rule that impeded an inmate's access to the courts. The rule authorized corrections officers to intercept mail addressed to a court and refer it to the legal investigator for the parole board to determine whether there was sufficient merit in the claim to justify its submission to a court. Meritless claims were simply not delivered. Petitioner Hull succeeded in smuggling papers to his father, who in turn delivered them to this Court. Although we held that the smuggled petition had insufficient merit even to require an answer from the *409 we nevertheless held that the regulation was invalid for the simple and sufficient reason that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for writ of habeas corpus." At first glance, the novel approach adopted by the Court today suggests that only those prisoners who have been refused the opportunity to file claims later found to have arguable merit should be able to challenge a rule as clearly unconstitutional as the one addressed in Hull. Perhaps the standard is somewhat lower than it appears in the first instance; using Hull as an example, the Court suggests that even facially meritless petitions can provide a sufficient basis for standing. See ante, at 352, n. 2. Nonetheless, because prisoners are uniquely subject to the control of the and because unconstitutional restrictions on the right of access to the courts—whether through nearly absolute bars like that in Hull or through inadequate legal resources—frustrate the ability of prisoners to identify, articulate, and present to courts injuries flowing from that control, I believe that any prisoner who claims to be impeded by such barriers has alleged constitutionally sufficient injury in fact. My disagreement with the Court is not complete: I am persuaded—as respondents' counsel essentially has conceded—that the relief ordered by the District Court was broader than necessary to redress the constitutional violations identified in the District Court's findings. I therefore agree that the case should be remanded. I cannot agree, however, with the Court's decision to use the case as an opportunity to meander through the laws of standing and access to the courts, expanding standing requirements here and limiting rights there,[6] when the most obvious concern in *410 the case is with the simple disjunct between the limited scope of the injuries articulated in the District Court's findings and the remedy it ordered as a result. Because most or all of petitioners' concerns regarding the order could be addressed with a simple remand, I see no need to resolve the other constitutional issues that the Court reaches out to address. The Court is well aware that much of its discussion preceding Part III is unnecessary to the decision. Reflecting on its view that the District Court railroaded the into accepting its order lock, stock, and barrel, the Court concludes on the last page of its decision that "[t]he was entitled to far more than an opportunity for rebuttal, and on that ground alone this order would have to be set aside." Ante, at 363. To the extent that the majority suggests that the order in this case is flawed because of a breakdown in the process of court-supervised negotiation that should generally precede systemic relief, I agree with it. I also agree that the failure in that process "alone " would justify a remand *411 in this case. I emphatically disagree, however, with the Court's characterization of who is most to blame for the objectionable character of the final order. Much of the blame for its breadth, I propose, can be placed squarely in the lap of the A fair evaluation of the procedures followed in this case must begin with a reference to the earlier case in which the same District Judge found petitioners guilty of a systemic constitutional violation in one facility. In that case the District Court expressly found that the state officials had demonstrated "a callous unwillingness to face the issues" and had pursued "diversion[ary] tactics" that "forced [the court] to take extraordinary measures." 1314. Despite the Court's request that they propose an appropriate remedy, the officials refused to do so. It is apparent that these defense tactics played an important role in the court's decision to appoint a Special Master to assistin the fashioning of the remedy that was ordered in Only after that order had been affirmed by the Court of Appeals did respondents commence this action seeking to obtain similar relief for the entire inmate population. After a trial that lasted for 11 days over the course of two months, the District Court found that several of petitioners' policies denied illiterate and non-English-speaking prisoners meaningful access to the courts. Given the precedent established in the express approval of that plan by the Court of Appeals, and the District Court's evaluation of the 's conclusions regarding the likelihood of voluntary remedial schemes, particularly in view of the 's unwillingness to play a constructive role in the remedy stage of that case, the District Court not unreasonably entered an order appointing the same Special Master and directing him to propose a similar remedy in this case. Although the District Court instructed the parties to submit specific objections to the remedial template derived from see App. to Pet. for Cert. 89a, nothing in the court's order prevented the *412 from submitting its own proposals without waiving its right to challenge the findings on the liability issues or its right to object to any remedial proposals by either the Master or the respondents. The District Court also told the parties that it would consider settlement offers, and instructed the Master to provide "such guidance and counsel as either of the parties may request to effect such a settlement." at 95a. In response to these invitations to participate in the remedial process, the filed only four half-hearted sets of written objections over the course of the six months during which the Special Master was evaluating the court's proposed order. See App. 218-221, 225-228, 231-238, and 239240. Although the Master rejected about half of these narrow objections, he accepted about an equal number, noting that the 's limited formal participation had been "important" and "very helpful." Proposed Order (Permanent Injunction) in No. CIV 90-0054 (D. Ariz.), p. iii. After the Master released his proposed order, the offered another round of objections. See App. 243-250. Although the District Court informed the Master that the objections could be considered, they did not have to be; the court reasonably noted that the had been aware for six months about the potential scope of the order, and that it could have mounted the same objections prior to the deadline that the court had set at the beginning of the process. One might have imagined that the faced with the potential of this "inordinately—indeed, wildly—intrusive" remedial scheme, ante, at 362, would have taken more care to protect its interests before the District Court and the Special Master, particularly given the express willingness of both to consider the 's objections. Having failed to zealously represent its interests in the District Court, the 's present complaints seem rather belated; the Court has generally been less than solicitous to claims that have *413 not been adequately pressed below. Cf., e. g., ; compare ante, at 363364, n. 8 ( made boilerplate reservation of rights in each set of objections), with Gray v. Netherland, ante, at 163 ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a claim to a state court"). The 's lack of interest in representing its interests is clear not only from the sparse objections in the District Court, but from proceedings both here and in the Court of Appeals. In argument before both courts, counsel for the prisoners have conceded that certain aspects of the consent decree exceeded the necessary relief. See, e. g., ; Tr. of Oral Arg. 31 (provisions regarding noise in library are unnecessary). This flexibility further suggests that the could have sought relief from aspects of the plan through negotiation. Indeed, at oral argument in the Ninth Circuit, the parties for both sides suggested that they were willing to settle the case, and the court deferred submission of the case for 30 days to enable a settlement. "However, before the settlement process had even begun, [the ] declined to mediate." n. 1. Notably, this is the only comment made by the appellate court regarding the process that led to the fashioning of the remedy in this case. A fair reading of the record, therefore, reveals that the had more than six months within which it could have initiated settlement discussions, presented more ambitious objections to the proposed decree reflecting the concerns it has raised before this Court, or offered up its own plan for the review of the plaintiffs and the Special Master. It took none of these steps. Instead, it settled for piecemeal and belated challenges to the scope of the proposed plan. The Court implies that the District Court's decision to use the decree entered in as the starting point for fashioning *414 the relief to be ordered was unfair to petitioners and should not be repeated in comparable circumstances. The browbeaten the Court suggests, was "entitled to far more than an opportunity for rebuttal." Ante, at 363. I strongly disagree with this characterization of the process. Whether this Court now approves or disapproves of the contents of the decree, the Court of Appeals had affirmed it in its entirety when this case was tried, and it was surely appropriate for the District Court to use it as a startingpoint for its remedial task in this case. Petitioners were represented by competent counsel who could have advanced their own proposals for relief if they had thought it expedient to do so. By going further than necessary to correct the excesses of the order, the Court's decision rewards the for the uncooperative posture it has assumed throughout the long period of litigating both and this case. See ante, at 354-355; -1316. Although the 's approach has proven sound as a matter of tactics, allowing it to prevail in a forum that is not as inhibited by precedent as are other federal courts, the Court's decision undermines the authority and equitable powers of not only this District Court, but District Courts throughout the Nation. It is quite wrong, in my judgment, for this Court to suggest that the District Court denied the a fair opportunity to be heard, and entirely unnecessary for it to dispose of the smorgasbord of constitutional issues that it consumes in Part II. Accordingly, while I agree that a remand is appropriate, I cannot join the Court's opinion.

Justice Souter

majority

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.

https://www.courtlistener.com/opinion/117900/jerome-b-grubart-inc-v-great-lakes-dredge-dock-co/

https://www.courtlistener.com/api/rest/v3/clusters/117900/

1994-026

On April 13, 1992, water from the Chicago River poured into a freight tunnel running under the river and thence into the basements of buildings in the downtown Chicago Loop. Allegedly, the flooding resulted from events several months earlier, when respondent Great Lakes Dredge and Dock Company had used a crane, sitting on a barge in the river next to a bridge, to drive piles into the riverbed above the tunnel. The issue before us is whether a court of the United States has admiralty jurisdiction to determine and limit the extent of Great Lakes's tort liability. We hold this suit to be within federal admiralty jurisdiction. *530 I The complaint, together with affidavits subject to no objection, alleges the following facts. In 1990, Great Lakes bid on a contract with petitioner city of Chicago to replace wooden pilings clustered around the piers of several bridges spanning the Chicago River, a navigable waterway within the meaning of The Daniel Ball, 10 Wall. 557, 563 (1871). See Escanaba Co. v. Chicago, 107 U.S. 678, 683 (1883). The pilings (called dolphins) keep ships from bumping into the piers and so protect both. After winning the contract, Great Lakes carried out the work with two barges towed by a tug. One barge carried pilings; the other carried a crane that pulled out old pilings and helped drive in new ones. In August and September 1991, Great Lakes replaced the pilings around the piers projecting into the river and supporting the Kinzie Street Bridge. After towing the cranecarrying barge into position near one of the piers, Great Lakes's employees secured the barge to the riverbed with spuds, or long metal legs that project down from the barge and anchor it. The workers then used the crane on the barge to pull up old pilings, stow them on the other barge, and drive new pilings into the riverbed around the piers. About seven months later, an eddy formed in the river near the bridge as the collapsing walls or ceiling of a freight tunnel running under the river opened the tunnel to river water, which flowed through to flood buildings in the Loop. After the flood, many of the victims brought actions in state court against Great Lakes and the city of Chicago, claiming that in the course of replacing the pilings Great Lakes had negligently weakened the tunnel structure, which Chicago (its owner) had not properly maintained. Great Lakes then brought this lawsuit in the United States District Court, invoking federal admiralty jurisdiction. Count I of the complaint seeks the protection of the Limitation of Vessel Owner's Liability Act (Limitation Act), 46 U.S. C. App. § 181 et seq., a statute that would, in effect, permit the admiralty *531 court to decide whether Great Lakes committed a tort and, if so, to limit Great Lakes's liability to the value of the vessels (the tug and two barges) involved if the tort was committed "without the privity or knowledge" of the vessels' owner, 46 U.S. C. App. § 183(a). Counts II and III of Great Lakes's complaint ask for indemnity and contribution from the city for any resulting loss to Great Lakes. The city, joined by petitioner Jerome B. Grubart, Inc., one of the state-court plaintiffs, filed a motion to dismiss this suit for lack of admiralty jurisdiction. Fed. Rule Civ. Proc. 12(b)(1). The District Court granted the motion, the Seventh Circuit reversed, Great Lakes Dredge & Dock Co. v. Chicago, 3 F.3d 225 (1993), and we granted certiorari, 510 U.S. 1108 (1994). We now affirm. II The parties do not dispute the Seventh Circuit's conclusion that jurisdiction as to Counts II and III (indemnity and contribution) hinges on jurisdiction over the Count I claim. See 3 F.3d, at 231, n. 9; see also 28 U.S. C. § 1367 (1988 ed., Supp. V) (supplemental jurisdiction); Fed. Rules Civ. Proc. 14(a) and (c) (impleader of third parties). Thus, the issue is simply whether or not a federal admiralty court has jurisdiction over claims that Great Lakes's faulty replacement work caused the flood damage. A A federal court's authority to hear cases in admiralty flows initially from the Constitution, which "extend[s]" federal judicial power "to all Cases of admiralty and maritime Jurisdiction." U. S. Const., Art. III, § 2. Congress has embodied that power in a statute giving federal district courts "original jurisdiction . . . of . . . [a]ny civil case of admiralty or maritime jurisdiction . . . ." 28 U.S. C. § 1333(1). The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty *532 jurisdiction did not exist. See, e. g., Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13902) (CC Me. 1813) (Story, J., on Circuit). This ostensibly simple locality test was complicated by the rule that the injury had to be "wholly" sustained on navigable waters for the tort to be within admiralty. The Plymouth, 3 Wall. 20, 34 (1866) (no jurisdiction over tort action brought by the owner of warehouse destroyed in a fire that started on board a ship docked nearby). Thus, admiralty courts lacked jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the pier, for admiralty law treated the pier as an extension of the land. Martin v. West, 222 U.S. 191, 197 (1911); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U.S. 316, 319 (1908). This latter rule was changed in 1948, however, when Congress enacted the Extension of Admiralty Jurisdiction Act, 62 Stat. 496. The Act provided that "[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S. C. App. § 740. The purpose of the Act was to end concern over the sometimes confusing line between land and water, by investing admiralty with jurisdiction over "all cases" where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land. See, e. g., Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 209-210 (1963); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260 (1972). After this congressional modification to gather the odd case into admiralty, the jurisdictional rule was qualified again in three decisions of this Court aimed at keeping a different class of odd cases out. In the first case, Executive Jet, supra, tort claims arose out of the wreck of an airplane that collided with a flock of birds just after takeoff on a domestic *533 flight and fell into the navigable waters of Lake Erie. We held that admiralty lacked jurisdiction to consider the claims. We wrote that "a purely mechanical application of the locality test" was not always "sensible" or "consonant with the purposes of maritime law," id., at 261, as when (for example) the literal and universal application of the locality rule would require admiralty courts to adjudicate tort disputes between colliding swimmers, id., at 255. We held that "claims arising from airplane accidents are not cognizable in admiralty" despite the location of the harm, unless "the wrong bear[s] a significant relationship to traditional maritime activity." Id., at 268. The second decision, Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982), dealt with tort claims arising out of the collision of two pleasure boats in a navigable river estuary. We held that admiralty courts had jurisdiction, id., at 677, even though jurisdiction existed only if "the wrong" had "a significant connection with traditional maritime activity," id., at 674. We conceded that pleasure boats themselves had little to do with the maritime commerce lying at the heart of the admiralty court's basic work, id., at 674-675, but we nonetheless found the necessary relationship in "[t]he potential disruptive impact [upon maritime commerce] of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation . . . ," id., at 675. In the most recent of the trilogy, Sisson v. Ruby, 497 U.S. 358 (1990), we held that a federal admiralty court had jurisdiction over tort claims arising when a fire, caused by a defective washer/dryer aboard a pleasure boat docked at a marina, burned the boat, other boats docked nearby, and the marina itself. Id., at 367. We elaborated on the enquiry exemplified in Executive Jet and Foremost by focusing on two points to determine the relationship of a claim to the objectives of admiralty jurisdiction. We noted, first, that *534 the incident causing the harm, the burning of docked boats at a marina on navigable waters, was of a sort "likely to disrupt [maritime] commercial activity." 497 U.S., at 363. Second, we found a "substantial relationship" with "traditional maritime activity" in the kind of activity from which the incident arose, "the storage and maintenance of a vessel. . . on navigable waters." Id., at 365-367. After Sisson, then, a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S. C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S. C. App. § 740. The connection test raises two issues. A court, first, must "assess the general features of the type of incident involved," 497 U.S., at 363, to determine whether the incident has "a potentially disruptive impact on maritime commerce," id., at 364, n. 2. Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." Id., at 365, 364, and n. 2. We now apply the tests to the facts of this suit. B The location test is, of course, readily satisfied. If Great Lakes caused the flood, it must have done so by weakening the structure of the tunnel while it drove in new pilings or removed old ones around the bridge piers. The weakening presumably took place as Great Lakes's workers lifted and replaced the pilings with a crane that sat on a barge stationed in the Chicago River. The place in the river where the barge sat, and from which workers directed the crane, is in the "navigable waters of the United States." Escanaba Co., 107 U. S., at 683. Thus, if Great Lakes committed a tort, it must have done it while on navigable waters. *535 It must also have done it "by a vessel." Even though the barge was fastened to the river bottom and was in use as a work platform at the times in question, at other times it was used for transportation. See 3 F.3d, at 229. Petitioners do not here seriously dispute the conclusion of each court below that the Great Lakes barge is, for admiralty tort purposes, a "vessel." The fact that the pile driving was done with a crane makes no difference under the location test, given the maritime law that ordinarily treats an "appurtenance" attached to a vessel in navigable waters as part of the vessel itself. See, e. g., Victory Carriers, Inc. v. Law, 404 U.S. 202, 210-211 (1971); Gutierrez, 373 U. S., at 209-210.[1] Because the injuries suffered by Grubart and the other flood victims were caused by a vessel on navigable water, the location enquiry would seem to be at an end, "notwithstanding that such damage or injury [was] done or consummated on land." 46 U.S. C. App. § 740. Both Grubart and Chicago nonetheless ask us to subject the Extension Act to limitations not apparent from its text. While they concede that the Act refers to "all cases of damage or injury," they argue that "all" must not mean literally every such case, no matter how great the distance between the vessel's tortious activity and the resulting harm. They contend that, to be *536 within the Act, the damage must be close in time and space to the activity that caused it: that it must occur "reasonably contemporaneously" with the negligent conduct and no "farther from navigable waters than the reach of the vessel, its appurtenances and cargo." Brief for Petitioner in No. 931094, p. 45 (City Brief). For authority, they point to this Court's statement in Gutierrez, supra, that jurisdiction is present when the "impact" of the tortious activity "is felt ashore at a time and place not remote from the wrongful act." Id., at 210.[2] The demerits of this argument lie not only in its want of textual support for its nonremoteness rule, but in its disregard of a less stringent but familiar proximity condition tied to the language of the statute. The Act uses the phrase "caused by," which more than one Court of Appeals has read as requiring what tort law has traditionally called "proximate causation." See, e. g., Pryor v. American President Lines, 520 F.2d 974, 979 (CA4 1975), cert. denied, 423 U.S. 1055 (1976); Adams v. Harris County, 452 F.2d 994, 996-997 (CA5 1971), cert. denied, 406 U.S. 968 (1972). This classic tort notion normally eliminates the bizarre, cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), and its use should obviate not only the complication but even the need for further temporal or spatial limitations. Nor is reliance on familiar proximate causation inconsistent with Gutierrez, which used its nonremote language, not to announce a special test, but simply to distinguish its own facts (the victim having slipped on beans spilling from cargo containers being unloaded from a ship) from what the Court called "[v]arious far-fetched hypotheticals," such as injury to someone slipping on beans that continue to leak from the *537 containers after they had been shipped from Puerto Rico to a warehouse in Denver. 373 U.S., at 210. See also Victory Carriers, supra, at 210-211. The city responds by saying that, as a practical matter, the use of proximate cause as a limiting jurisdictional principle would undesirably force an admiralty court to investigate the merits of the dispute at the outset of a case when it determined jurisdiction.[3] The argument, of course, assumes that the truth of jurisdictional allegations must always be determined with finality at the threshold of litigation, but that assumption is erroneous. Normal practice permits a party to establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements, see, e. g., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285 (1993); Bell v. Hood, 327 U.S. 678, 682-683 (1946), and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure *538 before a judge alone (as distinct from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection). See 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 12.07[2.—1] (2d ed. 1994); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990). There is no reason why this should not be just as true for proximate causation as it is for the maritime nature of the tortfeasor's activity giving rise to the incident. See Sisson, 497 U. S., at 365. There is no need or justification, then, for imposing an additional nonremoteness hurdle in the name of jurisdiction. C We now turn to the maritime connection enquiries, the first being whether the incident involved was of a sort with the potential to disrupt maritime commerce. In Sisson, we described the features of the incident in general terms as "a fire on a vessel docked at a marina on navigable waters," id., at 363, and determined that such an incident "plainly satisf[ied]" the first maritime connection requirement, ibid., because the fire could have "spread to nearby commercial vessels or ma[d]e the marina inaccessible to such vessels" and therefore "[c]ertainly" had a "potentially disruptive impact on maritime commerce," id., at 362. We noted that this first prong went to potential effects, not to the "particular facts of the incident," noting that in both Executive Jet and Foremost we had focused not on the specific facts at hand but on whether the "general features" of the incident were "likely to disrupt commercial activity." 497 U.S., at 363. The first Sisson test turns, then, on a description of the incident at an intermediate level of possible generality. To speak of the incident as "fire" would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial *539 shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping. Following Sisson, the "general features" of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a "potentially disruptive impact on maritime commerce." As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself,App. 33 (eddy formed above the leak); and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs. See Pet. for Cert. in No. 93-1094, p. 22a (District Court found that after the flood "[t]he river remained closed for over a month," "[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system . . . because the river level was lowered to aid repair efforts"). Cf. Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465 (CA5 1991) (admiralty suit when vessel struck and ruptured gas pipeline and gas exploded); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (CA5 1985) (admiralty jurisdiction when vessel struck pipeline, "a fixed structure on the seabed"); Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (CA11 1982) (admiralty suit when vessel struck underwater pipeline). In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in *540 the suit at hand. Navigation of boats in navigable waters clearly falls within the substantial relationship, Foremost, 457 U. S., at 675; storing them at a marina on navigable waters is close enough, Sisson, supra, at 367; whereas in flying an airplane over the water, Executive Jet, 409 U. S., at 270271, as in swimming, id., at 255-256, the relationship is too attenuated. On like reasoning, the "activity giving rise to the incident" in this suit, Sisson, supra, at 364, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel. Described in this way, there is no question that the activity is substantially related to traditional maritime activity, for barges and similar vessels have traditionally been engaged in repair work similar to what Great Lakes contracted to perform here. See, e. g., Shea v. Rev-Lyn Contracting Co., 868 F.2d 515, 518 (CA1 1989) (bridge repair by crane-carrying barge); Nelson v. United States, 639 F.2d 469, 472 (CA9 1980) (Kennedy, J.) (repair of wave suppressor from a barge); In re New York Dock Co., 61 F.2d 777 (CA2 1932) (pile driving from crane-carrying barge in connection with the building of a dock); In re P. Sanford Ross, Inc., 196 F. 921, 923-924 (EDNY 1912) (pile driving from crane-carrying barge close to water's edge), rev'd on other grounds, 204 F. 248 (CA2 1913); cf. In re The V-14813, 65 F.2d 789, 790 (CA5 1933) ("There are many cases holding that a dredge, or a barge with a pile driver, employed on navigable waters, is subject to maritime jurisdiction . . . § 7.54"); Lawrence v. Flatboat, 84 F. 200 (SD Ala. 1897) (pile driving from crane-carrying barge in connection with the erection of bulkheads), aff'd sub nom. Southern Log Cart & Supply Co. v. Lawrence, 86 F. 907 (CA5 1898). The city argues, to the contrary, that a proper application of the activity prong of Sisson would consider the city's own alleged failure at properly maintaining and operating the tunnel system that runs under the river. City Brief 48-49. If this asserted proximate cause of the flood victims' injuries *541 were considered, the city submits, its failure to resemble any traditional maritime activity would take this suit out of admiralty. The city misreads Sisson, however, which did not consider the activities of the washer/dryer manufacturer, who was possibly an additional tortfeasor, and whose activities were hardly maritime; the activities of Sisson, the boat owner, supplied the necessary substantial relationship to traditional maritime activity. Likewise, in Foremost, we said that "[b]ecause the `wrong' here involves the negligent operation of a vessel on navigable waters, we believe that it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction . . . ." 457 U.S., at 674. By using the word "involves," we made it clear that we need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor: as long as one of the putative tortfeasors was engaged in traditional maritime activity the allegedly wrongful activity will "involve" such traditional maritime activity and will meet the second nexus prong. Thus, even if we were to identify the "activity giving rise to the incident" as including the acts of the city as well as Great Lakes, admiralty jurisdiction would nevertheless attach. That result would be true to Sisson `s requirement of a "substantial relationship" between the "activity giving rise to the incident" and traditional maritime activity. Sisson did not require, as the city in effect asserts, that there be a complete identity between the two. The substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident. Petitioners also argue that we might get a different result simply by characterizing the "activity" in question at a different level of generality, perhaps as "repair and maintenance," or as "pile driving near a bridge." The city is, of course, correct that a tortfeasor's activity can be described *542 at a sufficiently high level of generality to eliminate any hint of maritime connection, and if that were properly done Sisson would bar assertion of admiralty jurisdiction. But to suggest that such hypergeneralization ought to be the rule would convert Sisson into a vehicle for eliminating admiralty jurisdiction. Although there is inevitably some play in the joints in selecting the right level of generality when applying the Sisson test, the inevitable imprecision is not an excuse for whimsy. The test turns on the comparison of traditional maritime activity to the arguably maritime character of the tortfeasor's activity in a given case; the comparison would merely be frustrated by eliminating the maritime aspect of the tortfeasor's activity from consideration.[4] Grubart makes an additional claim that Sisson is being given too expansive a reading. If the activity at issue here is considered maritime related, it argues, then virtually "every activity involving a vessel on navigable waters" would be "a traditional maritime activity sufficient to invoke maritime jurisdiction." Grubart Brief 6. But this is not fatal criticism. This Court has not proposed any radical alteration of the traditional criteria for invoking admiralty jurisdiction in tort cases, but has simply followed the lead of the lower federal courts in rejecting a location rule so rigid as to extend admiralty to a case involving an airplane, not a vessel, engaged in an activity far removed from anything traditionally maritime. See Executive Jet, 409 U. S., at 268274; see also Peytavin v. Government Employees Ins. Co., 453 F.2d 1121, 1127 (CA5 1972) (no jurisdiction over claim *543 for personal injury by motorist who was rear-ended while waiting for a ferry on a floating pontoon serving as the ferry's landing); Chapman v. Grosse Pointe Farms, 385 F.2d 962 (CA6 1967) (no admiralty jurisdiction over claim of swimmer who injured himself when diving off pier into shallow but navigable water). In the cases after Executive Jet, the Court stressed the need for a maritime connection, but found one in the navigation or berthing of pleasure boats, despite the facts that the pleasure boat activity took place near shore, where States have a strong interest in applying their own tort law, or was not on all fours with the maritime shipping and commerce that has traditionally made up the business of most maritime courts. Sisson, 497 U. S., at 367; Foremost, 457 U. S., at 675. Although we agree with petitioners that these cases do not say that every tort involving a vessel on navigable waters falls within the scope of admiralty jurisdiction no matter what, they do show that ordinarily that will be so.[5] III Perhaps recognizing the difficulty of escaping the case law, petitioners ask us to change it. In cases "involving land based parties and injuries," the city would have us adopt a condition of jurisdiction that "the totality of the circumstances reflects a federal interest in protecting maritime commerce sufficiently weighty to justify shifting what would otherwise be state-court litigation into federal court under the federal law of admiralty." City Brief 32. *544 Grubart and the city say that the Fifth Circuit has applied a somewhat similar "four-factor test" looking to "the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law." Kelly v. Smith, 485 F.2d 520, 525 (CA5 1973); see also Molett v. Penrod Drilling Co., 826 F.2d 1419, 1426 (CA5 1987) (adding three more factors: the "impact of the event on maritime shipping and commerce"; "the desirability of a uniform national rule to apply to such matters"; and "the need for admiralty `expertise' in the trial and decision of the case"), cert. denied sub nom. Columbus-McKinnon, Inc. v. Gearench, Inc., 493 U.S. 1003 (1989). Although they point out that Sisson disapproved the use of four-factor or seven-factor tests "where all the relevant entities are engaged in similar types of activity," this rule implicitly left the matter open for cases like this one, where most of the victims, and one of the tortfeasors, are based on land. See 497 U.S., at 365, n. 3 ("Different issues may be raised by a case in which one of the instrumentalities is engaged in a traditional maritime activity, but the other is not"). The city argues that there is a good reason why cases like this one should get different treatment. Since the basic rationale for federal admiralty jurisdiction is "protection of maritime commerce through uniform rules of decision," the proposed jurisdictional test would improve on Sisson in limiting the scope of admiralty jurisdiction more exactly to its rationale. A multiple factor test would minimize, if not eliminate, the awkward possibility that federal admiralty rules or procedures will govern a case, to the disadvantage of state law, when admiralty's purpose does not require it. Cf. Foremost, supra, at 677-686 (Powell, J., dissenting). Although the arguments are not frivolous, they do not persuade. It is worth recalling that the Sisson tests are aimed at the same objectives invoked to support a new multifactor test, the elimination of admiralty jurisdiction where the rationale *545 for the jurisdiction does not support it. If the tort produces no potential threat to maritime commerce or occurs during activity lacking a substantial relationship to traditional maritime activity, Sisson assumes that the objectives of admiralty jurisdiction probably do not require its exercise, even if the location test is satisfied. If, however, the Sisson tests are also satisfied, it is not apparent why the need for admiralty jurisdiction in aid of maritime commerce somehow becomes less acute merely because land-based parties happen to be involved. Certainly Congress did not think a land-based party necessarily diluted the need for admiralty jurisdiction or it would have kept its hands off the primitive location test. Of course, one could claim it to be odd that under Sisson a land-based party (or more than one) may be subject to admiralty jurisdiction, but it would appear no less odd under the city's test that a maritime tortfeasor in the most traditional mould might be subject to state common-law jurisdiction. Other things being equal, it is not evident why the first supposed anomaly is worse than the second. But other things are not even equal. As noted just above, Congress has already made the judgment, in the Extension Act, that a land-based victim may properly be subject to admiralty jurisdiction. Surely a land-based joint tortfeasor has no claim to supposedly more favorable treatment. Nor are these the only objections to the city's position. Contrary to what the city suggests, City Brief 10, 14-15, 2526, 30, exercise of federal admiralty jurisdiction does not result in automatic displacement of state law. It is true that, "[w]ith admiralty jurisdiction comes the application of substantive admiralty law." East River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986). But, to characterize that law, as the city apparently does, as "federal rules of decision," City Brief 15, is "a destructive oversimplification of the highly intricate interplay of the States and the National Government in *546 their regulation of maritime commerce. It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system. But this limitation still leaves the States a wide scope." Romero v. International Terminal Op- erating Co., 358 U.S. 354, 373 (1959) (footnote omitted). See East River, supra, at 864-865 ("Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules" (footnote omitted)). Thus, the city's proposal to synchronize the jurisdictional enquiry with the test for determining the applicable substantive law would discard a fundamental feature of admiralty law, that federal admiralty courts sometimes do apply state law. See, e. g., American Dredging Co. v. Miller, 510 U.S. 443, 451-452 (1994); see also 1 S. Friedell, Benedict on Admiralty § 112, p. 7-49 (7th ed. 1994).[6] *547 Finally, on top of these objections going to the city's premises there is added a most powerful one based on the practical consequences of adopting a multifactor test. Although the existing case law tempers the locality test with the added requirements looking to potential harm and traditional activity, it reflects customary practice in seeing jurisdiction as the norm when the tort originates with a vessel in navigable waters, and in treating departure from the locality principle as the exception. For better or worse, the case law has thus carved out the approximate shape of admiralty jurisdiction in a way that admiralty lawyers understand reasonably well. As against this approach, so familiar and relatively easy, the proposed four- or seven-factor test would be hard to apply, jettisoning relative predictability for the open-ended roughand-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal. Consider, for example, just one of the factors under the city's test, requiring a district court at the beginning of every purported admiralty case to determine the source (state or federal) of the applicable substantive law. The difficulty of doing that was an important reason why this Court in Romero, supra, was unable to hold that maritime claims fell within the scope of the federal-question-jurisdiction statute, 28 U.S. C. § 1331. 358 U.S., at 375-376 ("[S]ound judicial policy does not encourage a situation which necessitates constant adjudication of the boundaries of state and federal competence"). That concern applies just as strongly to *548 cases invoking a district court's admiralty jurisdiction under 28 U.S. C. § 1333, under which the jurisdictional enquiry for maritime torts has traditionally been quite uncomplicated. Reasons of practice, then, are as weighty as reasons of theory for rejecting the city's call to adopt a multifactor test for admiralty jurisdiction for the benefit of land-based parties to a tort action. Accordingly, we conclude that the Court of Appeals correctly held that the District Court had admiralty jurisdiction over the respondent Great Lakes's Limitation Act suit. The judgment of the Court of Appeals is Affirmed. Justice Stevens and Justice Breyer took no part in the decision of these cases.

On April 13, 1992, water from the Chicago poured into a freight tunnel running under the river and thence into the basements of buildings in the downtown Chicago Loop Allegedly, the flooding resulted from events several months earlier, when respondent Great Lakes Dredge and Dock Company had used a crane, sitting on a barge in the river next to a bridge, to drive piles into the riverbed above the tunnel The issue before us is whether a court of the United States has admiralty jurisdiction to determine and limit the extent of Great Lakes's tort liability We hold this suit to be within federal admiralty jurisdiction *530 I The complaint, together with affidavits subject to no objection, alleges the following facts In 1990, Great Lakes bid on a contract with petitioner city of Chicago to replace wooden pilings clustered around the piers of several bridges spanning the Chicago a navigable waterway within the meaning of The Daniel Ball, See Escanaba The pilings (called dolphins) keep ships from bumping into the piers and so protect both After winning the contract, Great Lakes carried out the work with two barges towed by a tug One barge carried pilings; the other carried a crane that pulled out old pilings and helped drive in new ones In August and September Great Lakes replaced the pilings around the piers projecting into the river and supporting the Kinzie Street Bridge After towing the cranecarrying barge into position near one of the piers, Great Lakes's employees secured the barge to the riverbed with spuds, or long metal legs that project down from the barge and anchor it The workers then used the crane on the barge to pull up old pilings, stow them on the other barge, and drive new pilings into the riverbed around the piers About seven months later, an eddy formed in the river near the bridge as the collapsing walls or ceiling of a freight tunnel running under the river opened the tunnel to river water, which flowed through to flood buildings in the Loop After the flood, many of the victims brought actions in state court against Great Lakes and the city of Chicago, claiming that in the course of replacing the pilings Great Lakes had negligently weakened the tunnel structure, which Chicago (its owner) had not properly maintained Great Lakes then brought this lawsuit in the United States District Court, invoking federal admiralty jurisdiction Count I of the complaint seeks the protection of the Limitation of Vessel Owner's Liability Act (Limitation Act), 46 US C App 181 et seq, a statute that would, in effect, permit the admiralty *531 court to decide whether Great Lakes committed a tort and, if so, to limit Great Lakes's liability to the value of the vessels (the tug and two barges) involved if the tort was committed "without the privity or knowledge" of the vessels' owner, 46 US C App 183(a) Counts II and III of Great Lakes's complaint ask for indemnity and contribution from the city for any resulting loss to Great Lakes The city, joined by petitioner Jerome B Grubart, Inc, one of the state-court plaintiffs, filed a motion to dismiss this suit for lack of admiralty jurisdiction Fed Rule Civ Proc 12(b)(1) The District Court granted the motion, the Seventh Circuit reversed, Great Lakes Dredge & Dock and we granted certiorari, We now affirm II The parties do not dispute the Seventh Circuit's conclusion that jurisdiction as to Counts II and III (indemnity and contribution) hinges on jurisdiction over the Count I claim See n 9; see also 28 US C 1367 (1988 ed, Supp V) (supplemental jurisdiction); Fed Rules Civ Proc 14(a) and (c) (impleader of third parties) Thus, the issue is simply whether or not a federal admiralty court has jurisdiction over claims that Great Lakes's faulty replacement work caused the flood damage A A federal court's authority to hear cases in admiralty flows initially from the Constitution, which "extend[s]" federal judicial power "to all Cases of admiralty and maritime Jurisdiction" U S Const, Art III, 2 Congress has embodied that power in a statute giving federal district courts "original jurisdiction of [a]ny civil case of admiralty or maritime jurisdiction " 28 US C 1333(1) The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters If it did, admiralty jurisdiction followed; if it did not, admiralty *532 jurisdiction did not exist See, e g, (No 13902) (CC Me 1813) (Story, J, on Circuit) This ostensibly simple locality test was complicated by the rule that the injury had to be "wholly" sustained on navigable waters for the tort to be within admiralty The Plymouth, Thus, admiralty courts lacked jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the pier, for admiralty law treated the pier as an extension of the land ; Cleveland Terminal & Valley R This latter rule was changed in 1948, however, when Congress enacted the Extension of Admiralty Jurisdiction Act, The Act provided that "[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land" 46 US C App 740 The purpose of the Act was to end concern over the sometimes confusing line between land and water, by investing admiralty with jurisdiction over "all cases" where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land See, e g, ; Executive Aviation, (2) After this congressional modification to gather the odd case into admiralty, the jurisdictional rule was qualified again in three decisions of this Court aimed at keeping a different class of odd cases out In the first case, Executive tort claims arose out of the wreck of an airplane that collided with a flock of birds just after takeoff on a domestic *533 flight and fell into the navigable waters of Lake Erie We held that admiralty lacked jurisdiction to consider the claims We wrote that "a purely mechanical application of the locality test" was not always "sensible" or "consonant with the purposes of maritime law," as when (for example) the literal and universal application of the locality rule would require admiralty courts to adjudicate tort disputes between colliding swimmers, We held that "claims arising from airplane accidents are not cognizable in admiralty" despite the location of the harm, unless "the wrong bear[s] a significant relationship to traditional maritime activity" The second decision, Ins dealt with tort claims arising out of the collision of two pleasure boats in a navigable river estuary We held that admiralty courts had jurisdiction, even though jurisdiction existed only if "the wrong" had "a significant connection with traditional maritime activity," We conceded that pleasure boats themselves had little to do with the maritime commerce lying at the heart of the admiralty court's basic work, -675, but we nonetheless found the necessary relationship in "[t]he potential disruptive impact [upon maritime commerce] of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation" In the most recent of the trilogy, we held that a federal admiralty court had jurisdiction over tort claims arising when a fire, caused by a defective washer/dryer aboard a pleasure boat docked at a marina, burned the boat, other boats docked nearby, and the marina itself We elaborated on the enquiry exemplified in Executive and by focusing on two points to determine the relationship of a claim to the objectives of admiralty jurisdiction We noted, first, that *5 the incident causing the harm, the burning of docked boats at a marina on navigable waters, was of a sort "likely to disrupt [maritime] commercial activity" Second, we found a "substantial relationship" with "traditional maritime activity" in the kind of activity from which the incident arose, "the storage and maintenance of a vessel on navigable waters" After then, a party seeking to invoke federal admiralty jurisdiction pursuant to 28 US C 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water 46 US C App 740 The connection test raises two issues A court, first, must "assess the general features of the type of incident involved," to determine whether the incident has "a potentially disruptive impact on maritime commerce," Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity" and n 2 We now apply the tests to the facts of this suit B The location test is, of course, readily satisfied If Great Lakes caused the flood, it must have done so by weakening the structure of the tunnel while it drove in new pilings or removed old ones around the bridge piers The weakening presumably took place as Great Lakes's workers lifted and replaced the pilings with a crane that sat on a barge stationed in the Chicago The place in the river where the barge sat, and from which workers directed the crane, is in the "navigable waters of the United States" Escanaba Co, 107 U S, at Thus, if Great Lakes committed a tort, it must have done it while on navigable waters *535 It must also have done it "by a vessel" Even though the barge was fastened to the river bottom and was in use as a work platform at the times in question, at other times it was used for transportation See Petitioners do not here seriously dispute the conclusion of each court below that the Great Lakes barge is, for admiralty tort purposes, a "vessel" The fact that the pile driving was done with a crane makes no difference under the location test, given the maritime law that ordinarily treats an "appurtenance" attached to a vessel in navigable waters as part of the vessel itself See, e g, Victory (1); U S, at [1] Because the injuries suffered by Grubart and the other flood victims were caused by a vessel on navigable water, the location enquiry would seem to be at an end, "notwithstanding that such damage or injury [was] done or consummated on land" 46 US C App 740 Both Grubart and Chicago nonetheless ask us to subject the Extension Act to limitations not apparent from its text While they concede that the Act refers to "all cases of damage or injury," they argue that "all" must not mean literally every such case, no matter how great the distance between the vessel's tortious activity and the resulting harm They contend that, to be *536 within the Act, the damage must be close in time and space to the activity that caused it: that it must occur "reasonably contemporaneously" with the negligent conduct and no "farther from navigable waters than the reach of the vessel, its appurtenances and cargo" Brief for Petitioner in No 931094, p 45 (City Brief) For authority, they point to this Court's statement in that jurisdiction is present when the "impact" of the tortious activity "is felt ashore at a time and place not remote from the wrongful act" [2] The demerits of this argument lie not only in its want of textual support for its nonremoteness rule, but in its disregard of a less stringent but familiar proximity condition tied to the language of the statute The Act uses the phrase "caused by," which more than one Court of Appeals has read as requiring what tort law has traditionally called "proximate causation" See, e g, (CA4 5), cert denied, (6); (CA5 1), cert denied, (2) This classic tort notion normally eliminates the bizarre, cf and its use should obviate not only the complication but even the need for further temporal or spatial limitations Nor is reliance on familiar proximate causation inconsistent with which used its nonremote language, not to announce a special test, but simply to distinguish its own facts (the victim having slipped on beans spilling from cargo containers being unloaded from a ship) from what the Court called "[v]arious far-fetched hypotheticals," such as injury to someone slipping on beans that continue to leak from the *537 containers after they had been shipped from Puerto Rico to a warehouse in Denver US, See also Victory at The city responds by saying that, as a practical matter, the use of proximate cause as a limiting jurisdictional principle would undesirably force an admiralty court to investigate the merits of the dispute at the outset of a case when it determined jurisdiction[3] The argument, of course, assumes that the truth of jurisdictional allegations must always be determined with finality at the threshold of litigation, but that assumption is erroneous Normal practice permits a party to establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements, see, e g, ; 682- and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure *538 before a judge alone (as distinct from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection) See 2A J Moore & J Lucas, Moore's Federal Practice ¶ 1207[2—1] ; 5A C Wright & A Miller, Federal Practice and Procedure 1350 There is no reason why this should not be just as true for proximate causation as it is for the maritime nature of the tortfeasor's activity giving rise to the incident See There is no need or justification, then, for imposing an additional nonremoteness hurdle in the name of jurisdiction C We now turn to the maritime connection enquiries, the first being whether the incident involved was of a sort with the potential to disrupt maritime commerce In we described the features of the incident in general terms as "a fire on a vessel docked at a marina on navigable waters," and determined that such an incident "plainly satisf[ied]" the first maritime connection requirement, ib because the fire could have "spread to nearby commercial vessels or ma[d]e the marina inaccessible to such vessels" and therefore "[c]ertainly" had a "potentially disruptive impact on maritime commerce," We noted that this first prong went to potential effects, not to the "particular facts of the incident," noting that in both Executive and we had focused not on the specific facts at hand but on whether the "general features" of the incident were "likely to disrupt commercial activity" The first test turns, then, on a description of the incident at an intermediate level of possible generality To speak of the incident as "fire" would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial *539 shipping that happened to be nearby We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping Following the "general features" of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure So characterized, there is little question that this is the kind of incident that has a "potentially disruptive impact on maritime commerce" As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself,App 33 (eddy formed above the leak); and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs See Pet for Cert in No 93-1094, p 22a (District Court found that after the flood "[t]he river remained closed for over a month," "[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system because the river level was lowered to aid repair efforts") Cf Pennzoil Producing ; Marathon Pipe Line ; Orange Beach Water, Sewer, and Fire Protection In the second enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity We ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in *540 the suit at hand Navigation of boats in navigable waters clearly falls within the substantial relationship, 457 U S, ; storing them at a marina on navigable waters is close enough, ; whereas in flying an airplane over the water, Executive as in swimming, -256, the relationship is too attenuated On like reasoning, the "activity giving rise to the incident" in this suit, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel Described in this way, there is no question that the activity is substantially related to traditional maritime activity, for barges and similar vessels have traditionally been engaged in repair work similar to what Great Lakes contracted to perform here See, e g, ; (repair of wave suppressor from a barge); In re New York Dock Co, ; In re P Sanford Ross, Inc, rev'd on other grounds, ; cf In re The V-14813, ("There are many cases holding that a dredge, or a barge with a pile driver, employed on navigable waters, is subject to maritime jurisdiction 754"); aff'd sub nom Southern Log Cart & Supply The city argues, to the contrary, that a proper application of the activity prong of would consider the city's own alleged failure at properly maintaining and operating the tunnel system that runs under the river City Brief 48-49 If this asserted proximate cause of the flood victims' injuries *541 were considered, the city submits, its failure to resemble any traditional maritime activity would take this suit out of admiralty The city misreads however, which did not consider the activities of the washer/dryer manufacturer, who was possibly an additional tortfeasor, and whose activities were hardly maritime; the activities of the boat owner, supplied the necessary substantial relationship to traditional maritime activity Likewise, in we said that "[b]ecause the `wrong' here involves the negligent operation of a vessel on navigable waters, we believe that it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction " 457 US, By using the word "involves," we made it clear that we need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor: as long as one of the putative tortfeasors was engaged in traditional maritime activity the allegedly wrongful activity will "involve" such traditional maritime activity and will meet the second nexus prong Thus, even if we were to identify the "activity giving rise to the incident" as including the acts of the city as well as Great Lakes, admiralty jurisdiction would nevertheless attach That result would be true to `s requirement of a "substantial relationship" between the "activity giving rise to the incident" and traditional maritime activity did not require, as the city in effect asserts, that there be a complete identity between the two The substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident Petitioners also argue that we might get a different result simply by characterizing the "activity" in question at a different level of generality, perhaps as "repair and maintenance," or as "pile driving near a bridge" The city is, of course, correct that a tortfeasor's activity can be described *542 at a sufficiently high level of generality to eliminate any hint of maritime connection, and if that were properly done would bar assertion of admiralty jurisdiction But to suggest that such hypergeneralization ought to be the rule would convert into a vehicle for eliminating admiralty jurisdiction Although there is inevitably some play in the joints in selecting the right level of generality when applying the test, the inevitable imprecision is not an excuse for whimsy The test turns on the comparison of traditional maritime activity to the arguably maritime character of the tortfeasor's activity in a given case; the comparison would merely be frustrated by eliminating the maritime aspect of the tortfeasor's activity from consideration[4] Grubart makes an additional claim that is being given too expansive a reading If the activity at issue here is considered maritime related, it argues, then virtually "every activity involving a vessel on navigable waters" would be "a traditional maritime activity sufficient to invoke maritime jurisdiction" Grubart Brief 6 But this is not fatal criticism This Court has not proposed any radical alteration of the traditional criteria for invoking admiralty jurisdiction in tort cases, but has simply followed the lead of the lower federal courts in rejecting a location rule so rigid as to extend admiralty to a case involving an airplane, not a vessel, engaged in an activity far removed from anything traditionally maritime See Executive 409 U S, 274; see also Peytavin v Government Employees Ins Co, 453 F2d 1121, (CA5 2) ; Chapman v Grosse Pointe Farms, 385 F2d 962 In the cases after Executive the Court stressed the need for a maritime connection, but found one in the navigation or berthing of pleasure boats, despite the facts that the pleasure boat activity took place near shore, where States have a strong interest in applying their own tort law, or was not on all fours with the maritime shipping and commerce that has traditionally made up the business of most maritime courts 497 U S, ; 457 U S, Although we agree with petitioners that these cases do not say that every tort involving a vessel on navigable waters falls within the scope of admiralty jurisdiction no matter what, they do show that ordinarily that will be so[5] III Perhaps recognizing the difficulty of escaping the case law, petitioners ask us to change it In cases "involving land based parties and injuries," the city would have us adopt a condition of jurisdiction that "the totality of the circumstances reflects a federal interest in protecting maritime commerce sufficiently weighty to justify shifting what would otherwise be state-court litigation into federal court under the federal law of admiralty" City Brief 32 *544 Grubart and the city say that the Fifth Circuit has applied a somewhat similar "four-factor test" looking to "the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law" Kelly v Smith, 485 F2d 520, (CA5 3); see also Molett v Penrod Drilling Co, 826 F2d 1419, cert denied sub nom Columbus-McKinnon, Inc v Gearench, Inc, 493 US 1003 Although they point out that disapproved the use of four-factor or seven-factor tests "where all the relevant entities are engaged in similar types of activity," this rule implicitly left the matter open for cases like this one, where most of the victims, and one of the tortfeasors, are based on land See 497 US, at 365, n 3 The city argues that there is a good reason why cases like this one should get different treatment Since the basic rationale for federal admiralty jurisdiction is "protection of maritime commerce through uniform rules of decision," the proposed jurisdictional test would improve on in limiting the scope of admiralty jurisdiction more exactly to its rationale A multiple factor test would minimize, if not eliminate, the awkward possibility that federal admiralty rules or procedures will govern a case, to the disadvantage of state law, when admiralty's purpose does not require it Cf -686 (Powell, J, dissenting) Although the arguments are not frivolous, they do not persuade It is worth recalling that the tests are aimed at the same objectives invoked to support a new multifactor test, the elimination of admiralty jurisdiction where the rationale *545 for the jurisdiction does not support it If the tort produces no potential threat to maritime commerce or occurs during activity lacking a substantial relationship to traditional maritime activity, assumes that the objectives of admiralty jurisdiction probably do not require its exercise, even if the location test is satisfied If, however, the tests are also satisfied, it is not apparent why the need for admiralty jurisdiction in aid of maritime commerce somehow becomes less acute merely because land-based parties happen to be involved Certainly Congress did not think a land-based party necessarily diluted the need for admiralty jurisdiction or it would have kept its hands off the primitive location test Of course, one could claim it to be odd that under a land-based party (or more than one) may be subject to admiralty jurisdiction, but it would appear no less odd under the city's test that a maritime tortfeasor in the most traditional mould might be subject to state common-law jurisdiction Other things being equal, it is not evident why the first supposed anomaly is worse than the second But other things are not even equal As noted just above, Congress has already made the judgment, in the Extension Act, that a land-based victim may properly be subject to admiralty jurisdiction Surely a land-based joint tortfeasor has no claim to supposedly more favorable treatment Nor are these the only objections to the city's position Contrary to what the city suggests, City Brief 10, 14-15, 2526, 30, exercise of federal admiralty jurisdiction does not result in automatic displacement of state law It is true that, "[w]ith admiralty jurisdiction comes the application of substantive admiralty law" East S S Corp v Transamerica Delaval Inc, 476 US 858, But, to characterize that law, as the city apparently does, as "federal rules of decision," City Brief 15, is "a destructive oversimplification of the highly intricate interplay of the States and the National Government in *546 their regulation of maritime commerce It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system But this limitation still leaves the States a wide scope" Romero v International Terminal Op- erating Co, 358 US 354, See East at -865 ("Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules" ) Thus, the city's proposal to synchronize the jurisdictional enquiry with the test for determining the applicable substantive law would discard a fundamental feature of admiralty law, that federal admiralty courts sometimes do apply state law See, e g, American Dredging Co v Miller, 510 US 443, ; see also 1 S Friedell, Benedict on Admiralty 112, p 7-49 [6] *547 Finally, on top of these objections going to the city's premises there is added a most powerful one based on the practical consequences of adopting a multifactor test Although the existing case law tempers the locality test with the added requirements looking to potential harm and traditional activity, it reflects customary practice in seeing jurisdiction as the norm when the tort originates with a vessel in navigable waters, and in treating departure from the locality principle as the exception For better or worse, the case law has thus carved out the approximate shape of admiralty jurisdiction in a way that admiralty lawyers understand reasonably well As against this approach, so familiar and relatively easy, the proposed four- or seven-factor test would be hard to apply, jettisoning relative predictability for the open-ended roughand-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal Consider, for example, just one of the factors under the city's test, requiring a district court at the beginning of every purported admiralty case to determine the source (state or federal) of the applicable substantive law The difficulty of doing that was an important reason why this Court in Romero, was unable to hold that maritime claims fell within the scope of the federal-question-jurisdiction statute, 28 US C 1331 358 US, at 375-376 That concern applies just as strongly to *548 cases invoking a district court's admiralty jurisdiction under 28 US C 1333, under which the jurisdictional enquiry for maritime torts has traditionally been quite uncomplicated Reasons of practice, then, are as weighty as reasons of theory for rejecting the city's call to adopt a multifactor test for admiralty jurisdiction for the benefit of land-based parties to a tort action Accordingly, we conclude that the Court of Appeals correctly held that the District Court had admiralty jurisdiction over the respondent Great Lakes's Limitation Act suit The judgment of the Court of Appeals is Affirmed Justice Stevens and Justice Breyer took no part in the decision of these cases

Justice O'Connor

dissenting

Atwater v. Lago Vista

https://www.courtlistener.com/opinion/2620702/atwater-v-lago-vista/

https://www.courtlistener.com/api/rest/v3/clusters/2620702/

2000-044

The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." The Court recognizes that the arrest of Gail Atwater was a "pointless indignity" that served no discernible state interest, ante, at 347, and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. I A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. See Payton v. New York, 445 U.S. 573, 585 (1980). When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable. See ibid. It is beyond cavil that "[t]he touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977) (per curiam) (quoting Terry v. Ohio, 392 U.S. 1, 19 *361 (1968)). See also, e. g., United States v. Ramirez, 523 U.S. 65, 71 (1998); Maryland v. Wilson, 519 U.S. 408, 411 (1997); Ohio v. Robinette, 519 U.S. 33, 39 (1996); Florida v. Jimeno, 500 U.S. 248, 250 (1991); United States v. Chadwick, 433 U.S. 1, 9 (1977). We have "often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity." Tennessee v. Garner, 471 U.S. 1, 13 (1985). But history is just one of the tools we use in conducting the reasonableness inquiry. See id., at 13-19; see also Wilson v. Arkansas, 514 U.S. 927, 929 (1995); Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (Breyer, J., concurring). And when history is inconclusive, as the majority amply demonstrates it is in this case, see ante, at 326-345, we will "evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, supra, at 300. See also, e. g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989); Tennessee v. Garner, supra, at 8; Delaware v. Prouse, 440 U.S. 648, 654 (1979); Pennsylvania v. Mimms, supra, at 109. In other words, in determining reasonableness, "[e]ach case is to be decided on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931). The majority gives a brief nod to this bedrock principle of our Fourth Amendment jurisprudence, and even acknowledges that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case." Ante, at 347. But instead of remedying this imbalance, the majority allows itself to be swayed by the worry that "every discretionary judgment in the field [will] be converted into an occasion for constitutional review." Ibid. It therefore mints a new rule that "[i]f an officer has probable cause to believe that an individual *362 has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Ante, at 354. This rule is not only unsupported by our precedent, but runs contrary to the principles that lie at the core of the Fourth Amendment. As the majority tacitly acknowledges, we have never considered the precise question presented here, namely, the constitutionality of a warrantless arrest for an offense punishable only by fine. Cf. ibid. Indeed, on the rare occasions that Members of this Court have contemplated such an arrest, they have indicated disapproval. See, e. g., Gustafson v. Florida, 414 U.S. 260, 266-267 (1973) (Stewart, J., concurring) ("[A] persuasive claim might have been made . . . that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made"); United States v. Robinson, 414 U.S. 218, 238, n. 2 (1973) (Powell, J., concurring) (the validity of a custodial arrest for a minor traffic offense is not "self-evident"). To be sure, we have held that the existence of probable cause is a necessary condition for an arrest. See Dunaway v. New York, 442 U.S. 200, 213-214 (1979). And in the case of felonies punishable by a term of imprisonment, we have held that the existence of probable cause is also a sufficient condition for an arrest. See United States v. Watson, 423 U.S. 411, 416-417 (1976). In Watson, however, there was a clear and consistently applied common law rule permitting warrantless felony arrests. See id., at 417-422. Accordingly, our inquiry ended there and we had no need to assess the reasonableness of such arrests by weighing individual liberty interests against state interests. Cf. Wyoming v. Houghton, supra, at 299-300; Tennessee v. Garner, supra, at 26 (O'Connor, J., dissenting) (criticizing majority for disregarding undisputed common law rule). Here, however, we have no such luxury. The Court's thorough exegesis makes it abundantly clear that warrantless *363 misdemeanor arrests were not the subject of a clear and consistently applied rule at common law. See, e. g., ante, at 332 (finding "disagreement, not unanimity, among both the common-law jurists and the text writers"); ante, at 335 (acknowledging that certain early English statutes serve only to "riddle Atwater's supposed common-law rule with enough exceptions to unsettle any contention [that there was a clear common-law rule barring warrantless arrests for misdemeanors that were not breaches of the peace]"). We therefore must engage in the balancing test required by the Fourth Amendment. See Wyoming v. Houghton, supra, at 299-300. While probable cause is surely a necessary condition for warrantless arrests for fine-only offenses, see Dunaway v. New York, supra, at 213-214, any realistic assessment of the interests implicated by such arrests demonstrates that probable cause alone is not a sufficient condition. See infra, at 364-366. Our decision in Whren v. United States, 517 U.S. 806 (1996), is not to the contrary. The specific question presented there was whether, in evaluating the Fourth Amendment reasonableness of a traffic stop, the subjective intent of the police officer is a relevant consideration. Id., at 808, 814. We held that it is not, and stated that "[t]he making of a traffic stop . . . is governed by the usual rule that probable cause to believe the law has been broken `outbalances' private interest in avoiding police contact." Id., at 818. We of course did not have occasion in Whren to consider the constitutional preconditions for warrantless arrests for fine-only offenses. Nor should our words be taken beyond their context. There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual's liberty and privacy interests. As we have said, "[a] motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend *364 a short period of time answering questions and waiting while the officer checks his license and registration, that he may be given a citation, but that in the end he most likely will be allowed to continue on his way." Berkemer v. McCarty, 468 U.S. 420, 437 (1984). Thus, when there is probable cause to believe that a person has violated a minor traffic law, there can be little question that the state interest in law enforcement will justify the relatively limited intrusion of a traffic stop. It is by no means certain, however, that where the offense is punishable only by fine, "probable cause to believe the law has been broken [will] `outbalanc[e]' private interest in avoiding" a full custodial arrest. Whren v. United States, supra, at 818. Justifying a full arrest by the same quantum of evidence that justifies a traffic stop—even though the offender cannot ultimately be imprisoned for her conduct—defies any sense of proportionality and is in serious tension with the Fourth Amendment's proscription of unreasonable seizures. A custodial arrest exacts an obvious toll on an individual's liberty and privacy, even when the period of custody is relatively brief. The arrestee is subject to a full search of her person and confiscation of her possessions. United States v. Robinson, supra. If the arrestee is the occupant of a car, the entire passenger compartment of the car, including packages therein, is subject to search as well. See New York v. Belton, 453 U.S. 454 (1981). The arrestee may be detained for up to 48 hours without having a magistrate determine whether there in fact was probable cause for the arrest. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Because people arrested for all types of violent and nonviolent offenses may be housed together awaiting such review, this detention period is potentially dangerous. Rosazza & Cook, Jail Intake: Managing A Critical Function—Part One: Resources, 13 American Jails 35 (Mar./Apr. 1999). And once the period of custody is over, the fact of the arrest is a permanent *365 part of the public record. Cf. Paul v. Davis, 424 U.S. 693 (1976). We have said that "the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." Welsh v. Wisconsin, 466 U.S. 740, 754, n. 14 (1984). If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State's interest in taking a person suspected of committing that offense into custody is surely limited, at best. This is not to say that the State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal conduct. It may also allow the police to verify the offender's identity and, if the offender poses a flight risk, to ensure her appearance at trial. But when such considerations are not present, a citation or summons may serve the State's remaining law enforcement interests every bit as effectively as an arrest. Cf. Lodging for State of Texas et al. as Amici Curiae (Texas Department of Public Safety, Student Handout, Traffic Law Enforcement 1 (1999)) ("Citations. . . . Definition—a means of getting violators to court without physical arrest. A citation should be used when it will serve this purpose except when by issuing a citation and releasing the violator, the safety of the public and/or the violator might be imperiled as in the case of D. W. I."). Because a full custodial arrest is such a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S., at 300. In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police *366 officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion" of a full custodial arrest. Terry v. Ohio, 392 U. S., at 21. The majority insists that a bright-line rule focused on probable cause is necessary to vindicate the State's interest in easily administrable law enforcement rules. See ante, at 347-351. Probable cause itself, however, is not a model of precision. "The quantum of information which constitutes probable cause—evidence which would `warrant a man of reasonable caution in the belief' that a [crime] has been committed—must be measured by the facts of the particular case." Wong Sun v. United States, 371 U.S. 471, 479 (1963) (citation omitted). The rule I propose—which merely requires a legitimate reason for the decision to escalate the seizure into a full custodial arrest—thus does not undermine an otherwise "clear and simple" rule. Cf. ante, at 347. While clarity is certainly a value worthy of consideration in our Fourth Amendment jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the Amendment's protections. What the Terry rule lacks in precision it makes up for in fidelity to the Fourth Amendment's command of reasonableness and sensitivity to the competing values protected by that Amendment. Over the past 30 years, it appears that the Terry rule has been workable and easily applied by officers on the street. At bottom, the majority offers two related reasons why a bright-line rule is necessary: the fear that officers who arrest for fine-only offenses will be subject to "personal [42 U.S. C.] *367 § 1983 liability for the misapplication of a constitutional standard," ante, at 350, and the resulting "systematic disincentive to arrest . . . where . . . arresting would serve an important societal interest," ante, at 351. These concerns are certainly valid, but they are more than adequately resolved by the doctrine of qualified immunity. Qualified immunity was created to shield government officials from civil liability for the performance of discretionary functions so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This doctrine is "the best attainable accommodation of competing values," namely, the obligation to enforce constitutional guarantees and the need to protect officials who are required to exercise their discretion. Id., at 814. In Anderson v. Creighton, 483 U.S. 635 (1987), we made clear that the standard of reasonableness for a search or seizure under the Fourth Amendment is distinct from the standard of reasonableness for qualified immunity purposes. Id., at 641. If a law enforcement officer "reasonably but mistakenly conclude[s]" that the constitutional predicate for a search or seizure is present, he "should not be held personally liable." Ibid. This doctrine thus allays any concerns about liability or disincentives to arrest. If, for example, an officer reasonably thinks that a suspect poses a flight risk or might be a danger to the community if released, cf. ante, at 351, he may arrest without fear of the legal consequences. Similarly, if an officer reasonably concludes that a suspect may possess more than four ounces of marijuana and thus might be guilty of a felony, cf. ante, at 348-349, and n. 19, 351, the officer will be insulated from liability for arresting the suspect even if the initial assessment turns out to be factually incorrect. As we have said, "officials will not be liable for mere mistakes in judgment." Butz v. Economou, 438 U.S. 478, 507 *368 (1978). Of course, even the specter of liability can entail substantial social costs, such as inhibiting public officials in the discharge of their duties. See, e. g., Harlow v. Fitzgerald, supra, at 814. We may not ignore the central command of the Fourth Amendment, however, to avoid these costs. II The record in this case makes it abundantly clear that Ms. Atwater's arrest was constitutionally unreasonable. Atwater readily admits—as she did when Officer Turek pulled her over—that she violated Texas' seatbelt law. Brief for Petitioners 2-3; Record 381, 384. While Turek was justified in stopping Atwater, see Whren v. United States, 517 U. S., at 819, neither law nor reason supports his decision to arrest her instead of simply giving her a citation. The officer's actions cannot sensibly be viewed as a permissible means of balancing Atwater's Fourth Amendment interests with the State's own legitimate interests. There is no question that Officer Turek's actions severely infringed Atwater's liberty and privacy. Turek was loud and accusatory from the moment he approached Atwater's car. Atwater's young children were terrified and hysterical. Yet when Atwater asked Turek to lower his voice because he was scaring the children, he responded by jabbing his finger in Atwater's face and saying, "You're going to jail." Record 382, 384. Having made the decision to arrest, Turek did not inform Atwater of her right to remain silent. Id., at 390, 704. He instead asked for her license and insurance information. Id., at 382. But cf. Miranda v. Arizona, 384 U.S. 436 (1966). Atwater asked if she could at least take her children to a friend's house down the street before going to the police station. Record 384. But Turek—who had just castigated Atwater for not caring for her children—refused and said he would take the children into custody as well. Id., at 384, 427, 704-705. Only the intervention of neighborhood *369 children who had witnessed the scene and summoned one of Atwater's friends saved the children from being hauled to jail with their mother. Id., at 382, 385-386. With the children gone, Officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the police car, and drove her to the police station. Id., at 386-387. Ironically, Turek did not secure Atwater in a seatbelt for the drive. Id., at 386. At the station, Atwater was forced to remove her shoes, relinquish her possessions, and wait in a holding cell for about an hour. Id., at 387, 706. A judge finally informed Atwater of her rights and the charges against her, and released her when she posted bond. Id., at 387-388, 706. Atwater returned to the scene of the arrest, only to find that her car had been towed. Id., at 389. Ms. Atwater ultimately pleaded no contest to violating the seatbelt law and was fined $50. Id., at 403. Even though that fine was the maximum penalty for her crime, Tex. Transp. Code Ann. § 545.413(d) (1999), and even though Officer Turek has never articulated any justification for his actions, the city contends that arresting Atwater was constitutionally reasonable because it advanced two legitimate interests: "the enforcement of child safety laws and encouraging [Atwater] to appear for trial." Brief for Respondents 15. It is difficult to see how arresting Atwater served either of these goals any more effectively than the issuance of a citation. With respect to the goal of law enforcement generally, Atwater did not pose a great danger to the community. She had been driving very slowly—approximately 15 miles per hour—in broad daylight on a residential street that had no other traffic. Record 380. Nor was she a repeat offender; until that day, she had received one traffic citation in her life—a ticket, more than 10 years earlier, for failure to signal a lane change. Id., at 378. Although Officer Turek had stopped Atwater approximately three months earlier because he thought that Atwater's son was not wearing a seatbelt, id., at 420, Turek had been mistaken, id., at 379, 703. *370 Moreover, Atwater immediately accepted responsibility and apologized for her conduct. Id., at 381, 384, 420. Thus, there was every indication that Atwater would have buckled herself and her children in had she been cited and allowed to leave. With respect to the related goal of child welfare, the decision to arrest Atwater was nothing short of counterproductive. Atwater's children witnessed Officer Turek yell at their mother and threaten to take them all into custody. Ultimately, they were forced to leave her behind with Turek, knowing that she was being taken to jail. Understandably, the 3-year-old boy was "very, very, very traumatized." Id., at 393. After the incident, he had to see a child psychologist regularly, who reported that the boy "felt very guilty that he couldn't stop this horrible thing . . . he was powerless to help his mother or sister." Id., at 396. Both of Atwater's children are now terrified at the sight of any police car. Id., at 393, 395. According to Atwater, the arrest "just never leaves us. It's a conversation we have every other day, once a week, and it's—it raises its head constantly in our lives." Id., at 395. Citing Atwater surely would have served the children's interests well. It would have taught Atwater to ensure that her children were buckled up in the future. It also would have taught the children an important lesson in accepting responsibility and obeying the law. Arresting Atwater, though, taught the children an entirely different lesson: that "the bad person could just as easily be the policeman as it could be the most horrible person they could imagine." Ibid. Respondents also contend that the arrest was necessary to ensure Atwater's appearance in court. Atwater, however, was far from a flight risk. A 16-year resident of Lago Vista, population 2,486, Atwater was not likely to abscond. See Record 376; Texas State Data Center, 1997 Total Population Estimates for Texas Places 15 (Sept. 1998). Although she *371 was unable to produce her driver's license because it had been stolen, she gave Officer Turek her license number and address. Record 386. In addition, Officer Turek knew from their previous encounter that Atwater was a local resident. The city's justifications fall far short of rationalizing the extraordinary intrusion on Gail Atwater and her children. Measuring "the degree to which [Atwater's custodial arrest was] needed for the promotion of legitimate governmental interests," against "the degree to which it intrud[ed] upon [her] privacy," Wyoming v. Houghton, 526 U. S., at 300, it can hardly be doubted that Turek's actions were disproportionate to Atwater's crime. The majority's assessment that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case," ante, at 347, is quite correct. In my view, the Fourth Amendment inquiry ends there. III The Court's error, however, does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors. In Texas alone, for example, disobeying any sort of traffic warning sign is a misdemeanor punishable only by fine, see Tex. Transp. Code Ann. § 472.022 (1999 and Supp. 2000-2001), as is failing to pay a highway toll, see § 284.070, and driving with expired license plates, see § 502.407. Nor are fine-only crimes limited to the traffic context. In several States, for example, littering is a criminal offense punishable only by fine. See, e. g., Cal. Penal Code Ann. § 374.7 (West 1999); Ga. Code Ann. § 16— 7-43 (1996); Iowa Code §§ 321.369, 805.8(2)(af) (Supp. 2001). To be sure, such laws are valid and wise exercises of the States' power to protect the public health and welfare. My concern lies not with the decision to enact or enforce these *372 laws, but rather with the manner in which they may be enforced. Under today's holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Cf. Whren v. United States, 517 U. S., at 806. Or, if a traffic violation, the officer may stop the car, arrest the driver, see ante, at 354, search the driver, see United States v. Robinson, 414 U. S., at 235, search the entire passenger compartment of the car including any purse or package inside, see New York v. Belton, 453 U. S., at 460, and impound the car and inventory all of its contents, see Colorado v. Bertine, 479 U.S. 367, 374 (1987); Florida v. Wells, 495 U.S. 1, 4-5 (1990). Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate. Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of "an epidemic of unnecessary minor-offense arrests." Ante, at 353, and n. 25. But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. See Whren v. United States, supra, at 813. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' poststop actions—which are properly within our reach—comport with the Fourth Amendment's guarantee of reasonableness. *373 * * * The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.

The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." The Court recognizes that the arrest of Gail Atwater was a "pointless indignity" that served no discernible state interest, ante, at 347, and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. I A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. See When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable. See It is beyond cavil that "[t]he touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " ). See also, e. g., United ; ; ; ; United We have "often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity." 4 U.S. 1, (185). But history is just one of the tools we use in conducting the reasonableness inquiry. See at -1; see also 514 U.S. 27, 2 (15); 526 U.S. 25, (1) And when history is inconclusive, as the majority amply demonstrates it is in this case, see ante, at 326-345, we will "evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." See also, e. g., 48 U.S. 602, 61 (18); ; (17); at 10. In other words, in determining reasonableness, "[e]ach case is to be decided on its own facts and circumstances." Go-Bart Importing (1). The majority gives a brief nod to this bedrock principle of our Fourth Amendment jurisprudence, and even acknowledges that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case." Ante, at 347. But instead of remedying this imbalance, the majority allows itself to be swayed by the worry that "every discretionary judgment in the field [will] be converted into an occasion for constitutional review." It therefore mints a new rule that "[i]f an officer has probable cause to believe that an individual *362 has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Ante, at 354. This rule is not only unsupported by our precedent, but runs contrary to the principles that lie at the core of the Fourth Amendment. As the majority tacitly acknowledges, we have never considered the precise question presented here, namely, the constitutionality of a warrantless arrest for an offense punishable only by fine. Cf. Indeed, on the rare occasions that Members of this Court have contemplated such an arrest, they have indicated disapproval. See, e. g., (173) ("[A] persuasive claim might have been made that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made"); United (173) (the validity of a custodial arrest for a minor traffic offense is not "self-evident"). To be sure, we have held that the existence of probable cause is a necessary condition for an arrest. See 2-214 (17). And in the case of felonies punishable by a term of imprisonment, we have held that the existence of probable cause is also a sufficient condition for an arrest. See United 423 U.S. (176). In Watson, however, there was a clear and consistently applied common law rule permitting warrantless felony arrests. See Accordingly, our inquiry ended there and we had no need to assess the reasonableness of such arrests by weighing individual liberty interests against state interests. Cf. at 2-300; (criticizing majority for disregarding undisputed common law rule). Here, however, we have no such luxury. The Court's thorough exegesis makes it abundantly clear that warrantless *363 misdemeanor arrests were not the subject of a clear and consistently applied rule at common law. See, e. g., ante, at 332 (finding "disagreement, not unanimity, among both the common-law jurists and the text writers"); ante, at 335 (acknowledging that certain early English statutes serve only to "riddle Atwater's supposed common-law rule with enough exceptions to unsettle any contention [that there was a clear common-law rule barring warrantless arrests for misdemeanors that were not breaches of the peace]"). We therefore must engage in the balancing test required by the Fourth Amendment. See at 2-300. While probable cause is surely a necessary condition for warrantless arrests for fine-only offenses, see at 2-214, any realistic assessment of the interests implicated by such arrests demonstrates that probable cause alone is not a sufficient condition. See infra, at 364-366. Our decision in is not to the contrary. The specific question presented there was whether, in evaluating the Fourth Amendment reasonableness of a traffic stop, the subjective intent of the police officer is a relevant consideration. 08, 814. We held that it is not, and stated that "[t]he making of a traffic stop is governed by the usual rule that probable cause to believe the law has been broken `outbalances' private interest in avoiding police contact." 18. We of course did not have occasion in Whren to consider the constitutional preconditions for warrantless arrests for fine-only offenses. Nor should our words be taken beyond their context. There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual's liberty and privacy interests. As we have said, "[a] motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend *364 a short period of time answering questions and waiting while the officer checks his license and registration, that he may be given a citation, but that in the end he most likely will be allowed to continue on his way." (184). Thus, when there is probable cause to believe that a person has violated a minor traffic law, there can be little question that the state interest in law enforcement will justify the relatively limited intrusion of a traffic stop. It is by no means certain, however, that where the offense is punishable only by fine, "probable cause to believe the law has been broken [will] `outbalanc[e]' private interest in avoiding" a full custodial arrest. 18. Justifying a full arrest by the same quantum of evidence that justifies a traffic stop—even though the offender cannot ultimately be imprisoned for her conduct—defies any sense of proportionality and is in serious tension with the Fourth Amendment's proscription of unreasonable seizures. A custodial arrest exacts an obvious toll on an individual's liberty and privacy, even when the period of custody is relatively brief. The arrestee is subject to a full search of her person and confiscation of her possessions. United If the arrestee is the occupant of a car, the entire passenger compartment of the car, including packages therein, is subject to search as well. See New v. (181). The arrestee may be detained for up to 48 hours without having a magistrate determine whether there in fact was probable cause for the arrest. See County of Because people arrested for all types of violent and nonviolent offenses may be housed together awaiting such review, this detention period is potentially dangerous. Rosazza & Cook, Jail Intake: Managing A Critical Function—Part One: Resources, American Jails 35 (Mar./Apr. 1). And once the period of custody is over, the fact of the arrest is a permanent *365 part of the public record. Cf. 424 U.S. 63 (176). We have said that "the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." (184). If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State's interest in taking a person suspected of committing that offense into custody is surely limited, at best. This is not to say that the State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal conduct. It may also allow the police to verify the offender's identity and, if the offender poses a flight risk, to ensure her appearance at trial. But when such considerations are not present, a citation or summons may serve the State's remaining law enforcement interests every bit as effectively as an arrest. Cf. Lodging for State of Texas et al. as Amici Curiae (Texas Department of Public Safety, Student Handout, Traffic Law Enforcement 1 (1)) ("Citations. Definition—a means of getting violators to court without physical arrest. A citation should be used when it will serve this purpose except when by issuing a citation and releasing the violator, the safety of the public and/or the violator might be imperiled as in the case of D. W. I."). Because a full custodial arrest is such a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests." 526 U. S., In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police *366 officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion" of a full custodial arrest. 2 U. S., at 21. The majority insists that a bright-line rule focused on probable cause is necessary to vindicate the State's interest in easily administrable law enforcement rules. See ante, at 347-351. Probable cause itself, however, is not a model of precision. "The quantum of information which constitutes probable cause—evidence which would `warrant a man of reasonable caution in the belief' that a [crime] has been committed—must be measured by the facts of the particular case." Wong Sun v. United 3 U.S. 4, 47 (163) The rule I propose—which merely requires a legitimate reason for the decision to escalate the seizure into a full custodial arrest—thus does not undermine an otherwise "clear and simple" rule. Cf. ante, at 347. While clarity is certainly a value worthy of consideration in our Fourth Amendment jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the Amendment's protections. What the Terry rule lacks in precision it makes up for in fidelity to the Fourth Amendment's command of reasonableness and sensitivity to the competing values protected by that Amendment. Over the past 30 years, it appears that the Terry rule has been workable and easily applied by officers on the street. At bottom, the majority offers two related reasons why a bright-line rule is necessary: the fear that officers who arrest for fine-only offenses will be subject to "personal [42 U.S. C.] *367 183 liability for the misapplication of a constitutional standard," ante, at 350, and the resulting "systematic disincentive to arrest where arresting would serve an important societal interest," ante, at 351. These concerns are certainly valid, but they are more than adequately resolved by the doctrine of qualified immunity. Qualified immunity was created to shield government officials from civil liability for the performance of discretionary functions so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See (182). This doctrine is "the best attainable accommodation of competing values," namely, the obligation to enforce constitutional guarantees and the need to protect officials who are required to exercise their discretion. 14. In (187), we made clear that the standard of reasonableness for a search or seizure under the Fourth Amendment is distinct from the standard of reasonableness for qualified immunity purposes. If a law enforcement officer "reasonably but mistakenly conclude[s]" that the constitutional predicate for a search or seizure is present, he "should not be held personally liable." This doctrine thus allays any concerns about liability or disincentives to arrest. If, for example, an officer reasonably thinks that a suspect poses a flight risk or might be a danger to the community if released, cf. ante, at 351, he may arrest without fear of the legal consequences. Similarly, if an officer reasonably concludes that a suspect may possess more than four ounces of marijuana and thus might be guilty of a felony, cf. ante, at 348-34, and n. 1, 351, the officer will be insulated from liability for arresting the suspect even if the initial assessment turns out to be factually incorrect. As we have said, "officials will not be liable for mere mistakes in judgment." (178). Of course, even the specter of liability can entail substantial social costs, such as inhibiting public officials in the discharge of their duties. See, e. g., 14. We may not ignore the central command of the Fourth Amendment, however, to avoid these costs. II The record in this case makes it abundantly clear that Ms. Atwater's arrest was constitutionally unreasonable. Atwater readily admits—as she did when Officer Turek pulled her over—that she violated Texas' seatbelt law. Brief for Petitioners 2-3; Record 381, 384. While Turek was justified in stopping Atwater, see 517 U. S., 1, neither law nor reason supports his decision to arrest her instead of simply giving her a citation. The officer's actions cannot sensibly be viewed as a permissible means of balancing Atwater's Fourth Amendment interests with the State's own legitimate interests. There is no question that Officer Turek's actions severely infringed Atwater's liberty and privacy. Turek was loud and accusatory from the moment he approached Atwater's car. Atwater's young children were terrified and hysterical. Yet when Atwater asked Turek to lower his voice because he was scaring the children, he responded by jabbing his finger in Atwater's face and saying, "You're going to jail." Record 382, 384. Having made the decision to arrest, Turek did not inform Atwater of her right to remain silent. at 0, 704. He instead asked for her license and insurance information. But cf. (166). Atwater asked if she could at least take her children to a friend's house down the street before going to the police station. Record 384. But Turek—who had just castigated Atwater for not caring for her children—refused and said he would take the children into custody as well. Only the intervention of neighborhood *36 children who had witnessed the scene and summoned one of Atwater's friends saved the children from being hauled to jail with their mother. 385-386. With the children gone, Officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the police car, and drove her to the police station. Ironically, Turek did not secure Atwater in a seatbelt for the drive. At the station, Atwater was forced to remove her shoes, relinquish her possessions, and wait in a holding cell for about an hour. A judge finally informed Atwater of her rights and the charges against her, and released her when she posted bond. Atwater returned to the scene of the arrest, only to find that her car had been towed. at 38. Ms. Atwater ultimately pleaded no contest to violating the seatbelt law and was fined $50. Even though that fine was the maximum penalty for her crime, Tex. Transp. Code Ann. 545.4(d) (1), and even though Officer Turek has never articulated any justification for his actions, the city contends that arresting Atwater was constitutionally reasonable because it advanced two legitimate interests: "the enforcement of child safety laws and encouraging [Atwater] to appear for trial." Brief for Respondents 15. It is difficult to see how arresting Atwater served either of these goals any more effectively than the issuance of a citation. With respect to the goal of law enforcement generally, Atwater did not pose a great danger to the community. She had been driving very slowly—approximately 15 miles per hour—in broad daylight on a residential street that had no other traffic. Record 380. Nor was she a repeat offender; until that day, she had received one traffic citation in her life—a ticket, more than 10 years earlier, for failure to signal a lane change. Although Officer Turek had stopped Atwater approximately three months earlier because he thought that Atwater's son was not wearing a seatbelt, Turek had been mistaken, at 37, 703. *370 Moreover, Atwater immediately accepted responsibility and apologized for her conduct. Thus, there was every indication that Atwater would have buckled herself and her children in had she been cited and allowed to leave. With respect to the related goal of child welfare, the decision to arrest Atwater was nothing short of counterproductive. Atwater's children witnessed Officer Turek yell at their mother and threaten to take them all into custody. Ultimately, they were forced to leave her behind with Turek, knowing that she was being taken to jail. Understandably, the 3-year-old boy was "very, very, very traumatized." at 3. After the incident, he had to see a child psychologist regularly, who reported that the boy "felt very guilty that he couldn't stop this horrible thing he was powerless to help his mother or sister." at 6. Both of Atwater's children are now terrified at the sight of any police car. at 3, 5. According to Atwater, the arrest "just never leaves us. It's a conversation we have every other day, once a week, and it's—it raises its head constantly in our lives." at 5. Citing Atwater surely would have served the children's interests well. It would have taught Atwater to ensure that her children were buckled up in the future. It also would have taught the children an important lesson in accepting responsibility and obeying the law. Arresting Atwater, though, taught the children an entirely different lesson: that "the bad person could just as easily be the policeman as it could be the most horrible person they could imagine." Respondents also contend that the arrest was necessary to ensure Atwater's appearance in court. Atwater, however, was far from a flight risk. A 16-year resident of Lago Vista, population 2,486, Atwater was not likely to abscond. See Record 376; Texas State Data Center, 17 Total Population Estimates for Texas Places 15 Although she *3 was unable to produce her driver's license because it had been stolen, she gave Officer Turek her license number and address. Record 386. In addition, Officer Turek knew from their previous encounter that Atwater was a local resident. The city's justifications fall far short of rationalizing the extraordinary intrusion on Gail Atwater and her children. Measuring "the degree to which [Atwater's custodial arrest was] needed for the promotion of legitimate governmental interests," against "the degree to which it intrud[ed] upon [her] privacy," 526 U. S., it can hardly be doubted that Turek's actions were disproportionate to Atwater's crime. The majority's assessment that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case," ante, at 347, is quite correct. In my view, the Fourth Amendment inquiry ends there. III The Court's error, however, does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors. In Texas alone, for example, disobeying any sort of traffic warning sign is a misdemeanor punishable only by fine, see Tex. Transp. Code Ann. 472.022 (1 and Supp. 2000-2001), as is failing to pay a highway toll, see 284.070, and driving with expired license plates, see 502.407. Nor are fine-only crimes limited to the traffic context. In several for example, littering is a criminal offense punishable only by fine. See, e. g., Cal. Penal Code Ann.7 (West 1); Ga. Code Ann. 16— 7-43 ; Iowa Code 321.36, 805.8(2)(af) (Supp. 2001). To be sure, such laws are valid and wise exercises of the ' power to protect the public health and welfare. My concern lies not with the decision to enact or enforce these *372 laws, but rather with the manner in which they may be enforced. Under today's holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Cf. 517 U. S., 06. Or, if a traffic violation, the officer may stop the car, arrest the driver, see ante, at 354, search the driver, see United search the entire passenger compartment of the car including any purse or package inside, see New v. and impound the car and inventory all of its contents, see 47 U.S. 367, (187); 45 U.S. 1, (10). Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate. Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of "an epidemic of unnecessary minor-offense arrests." Ante, at 353, and n. 25. But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. See But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' poststop actions—which are properly within our reach—comport with the Fourth Amendment's guarantee of reasonableness. *373 * * * The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.

Justice Burger

dissenting

Davis v. Passman

https://www.courtlistener.com/opinion/110097/davis-v-passman/

https://www.courtlistener.com/api/rest/v3/clusters/110097/

1978-112

I dissent because, for me, the case presents very grave questions of separation of powers, rather than Speech or Debate Clause issues, although the two have certain common roots. Congress could, of course, make Bivens-type remedies available to its staff employees—and to other congressional employees— but it has not done so. On the contrary, Congress has historically treated its employees differently from the arrangements for other Government employees. Historically, staffs of Members have been considered so intimately a part of the policymaking and political process that they are not subject to being selected, compensated, or tenured as others who serve the Government. The vulnerability of employment on congressional staffs derives not only from the hazards of elections but also from the imperative need for loyalty, confidentiality, and political compatibility—not simply to a political party, an institution, or an administration, but to the individual Member. A Member of Congress has a right to expect that every person on his or her staff will give total loyalty to the political positions of the Member, total confidentiality, and total support. This may, on occasion, lead a Member to employ a *250 particular person on a racial, ethnic, religious, or gender basis thought to be acceptable to the constituency represented, even though in other branches of Government—or in the private sector—such selection factors might be prohibited. This might lead a Member to decide that a particular staff position should be filled by a Catholic or a Presbyterian or a Mormon, a Mexican-American or an Oriental-American—or a woman rather than a man. Presidents consciously select— and dispense with—their appointees on this basis and have done so since the beginning of the Republic. The very commission of a Presidential appointee defines the tenure as "during the pleasure of the President." Although Congress altered the ancient "spoils system" as to the Executive Branch and prescribed standards for some limited segments of the Judicial Branch, it has allowed its own Members, Presidents, and Judges to select their personal staffs without limit or restraint—in practical effect their tenure is "during the pleasure" of the Member. At this level of Government—staff assistants of Members— long-accepted concepts of separation of powers dictate, for me, that until Congress legislates otherwise as to employment standards for its own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier. Cf. Sinking-Fund Cases, 99 U.S. 700, 718 (1879). In relation to his or her constituents, and in the performance of constitutionally defined functions, each Member of the House or Senate occupies a position in the Legislative Branch comparable to that of the President in the Executive Branch; and for the limited purposes of selecting personal staffs, their authority should be uninhibited except as Congress itself, or the Constitution, expressly provides otherwise. The intimation that if Passman were still a Member of the House, a federal court could command him, on pain of contempt, to re-employ Davis represents an astonishing break with concepts of separate, coequal branches; I would categorically *251 reject the notion that courts have any such power in relation to the Congress. MR. JUSTICE STEWART, with whom MR.

I dissent because, for me, the case presents very grave questions of separation of powers, rather than Speech or Debate Clause issues, although the two have certain common roots. Congress could, of course, make Bivens-type remedies available to its staff employees—and to other congressional employees— but it has not done so. On the contrary, Congress has historically treated its employees differently from the arrangements for other Government employees. Historically, staffs of Members have been considered so intimately a part of the policymaking and political process that they are not subject to being selected, compensated, or tenured as others who serve the Government. The vulnerability of employment on congressional staffs derives not only from the hazards of elections but also from the imperative need for loyalty, confidentiality, and political compatibility—not simply to a political party, an institution, or an administration, but to the individual Member. A Member of Congress has a right to expect that every person on his or her staff will give total loyalty to the political positions of the Member, total confidentiality, and total support. This may, on occasion, lead a Member to employ a *250 particular person on a racial, ethnic, religious, or gender basis thought to be acceptable to the constituency represented, even though in other branches of Government—or in the private sector—such selection factors might be prohibited. This might lead a Member to decide that a particular staff position should be filled by a Catholic or a Presbyterian or a Mormon, a Mexican-American or an Oriental-American—or a woman rather than a man. Presidents consciously select— and dispense with—their appointees on this basis and have done so since the beginning of the Republic. The very commission of a Presidential appointee defines the tenure as "during the pleasure of the President." Although Congress altered the ancient "spoils system" as to the Executive Branch and prescribed standards for some limited segments of the Judicial Branch, it has allowed its own Members, Presidents, and Judges to select their personal staffs without limit or restraint—in practical effect their tenure is "during the pleasure" of the Member. At this level of Government—staff assistants of Members— long-accepted concepts of separation of powers dictate, for me, that until Congress legislates otherwise as to employment standards for its own staffs, judicial power in this area is circumscribed. The Court today encroaches on that barrier. Cf. Sinking-Fund Cases, In relation to his or her constituents, and in the performance of constitutionally defined functions, each Member of the House or Senate occupies a position in the Legislative Branch comparable to that of the President in the Executive Branch; and for the limited purposes of selecting personal staffs, their authority should be uninhibited except as Congress itself, or the Constitution, expressly provides otherwise. The intimation that if Passman were still a Member of the House, a federal court could command him, on pain of contempt, to re-employ Davis represents an astonishing break with concepts of separate, coequal branches; I would categorically *251 reject the notion that courts have any such power in relation to the Congress. MR. JUSTICE STEWART, with whom MR.

Justice Roberts

dissenting

Patchak v. Zinke

https://www.courtlistener.com/opinion/4471243/patchak-v-zinke/

https://www.courtlistener.com/api/rest/v3/clusters/4471243/

2017-017

Two Terms ago, this Court unanimously agreed that Congress could not pass a law directing that, in the hypo- thetical pending case of Smith v. Jones, “Smith wins.” Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 17 (2016) (slip op., at 13, n. 17). Today, the plurality refuses to enforce even that limited principle in the face of a very real statute that dictates the disposition of a single pend- ing case. Contrary to the plurality, I would not cede un- qualified authority to the Legislature to decide the out- come of such a case. Article III of the Constitution vests that responsibility in the Judiciary alone. I A Article III, §1 of the Constitution confers the “judicial Power of the United States” on “one supreme Court” and such “inferior Courts” as Congress might establish. That provision, our cases have recognized, is an “inseparable element of the constitutional system of checks and bal- ances,” which sets aside for the Judiciary the authority to decide cases and controversies according to law. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (plurality opinion). “Under the basic concept 2 PATCHAK v. ZINKE ROBERTS, C. J., dissenting of separation of powers,” the judicial power to interpret and apply the law “can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.” Stern v. Marshall, 564 U.S. 462, 483 (2011) (inter- nal quotation marks omitted). The Framers’ decision to establish a judiciary “truly distinct from both the legislature and the executive,” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamil- ton), was born of their experience with legislatures “ex- tending the sphere of [their] activity and drawing all power into [their] impetuous vortex,” id., No. 48, at 309 (J. Madison). Throughout the 17th and 18th centuries, colo- nial legislatures routinely functioned as courts of equity, “grant[ing] exemptions from standing law, prescrib[ing] the law to be applied to particular controversies, and even decid[ing] the merits of cases.” Manning, Response, Deriv- ing Rules of Statutory Interpretation from the Constitu- tion, 101 Colum. L. Rev. 1648, 1662 (2001). In Virginia, for instance, Thomas Jefferson lamented that the assem- bly had, “in many instances, decided rights which should have been left to judiciary controversy.” Notes on the State of Virginia 120 (W. Peden ed. 1982). And in Penn- sylvania, the Council of Censors—a body charged with ensuring compliance with the state constitution— denounced the state assembly’s practice of “extending their deliberations to the cases of individuals” in order to ease the “hardships which will always arise from the operation of general laws.” Report of the Committee of the Pennsylvania Council of Censors 38, 43 (F. Bailey ed. 1784). “[T]here is reason to think,” the Censors reported, “that favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief.” Id., at 38. Given the “disarray” produced by this “system of legisla- Cite as: 583 U. S. ____ (2018) 3 ROBERTS, C. J., dissenting tive equity,” the Framers resolved to take the innovative step of creating an independent judiciary. Plaut v. Spend- thrift Farm, Inc., 514 U.S. 211, 221 (1995). They recog- nized that such a structural limitation on the power of the legislative and executive branches was necessary to secure individual freedom. As James Madison put it, “[w]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary con- trol.” The Federalist No. 47, at 303 (citing 1 Montesquieu, The Spirit of the Laws). The Constitution’s division of power thus reflects the “concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person.” INS v. Chadha, 462 U.S. 919, 962 (1983) (Powell, J., concurring in judgment). The Framers protected against that threat, both in “specific provisions, such as the Bill of Attainder Clause,” and in the “general allocation” of the judicial power to the Judiciary alone. Ibid. As Chief Justice Mar- shall wrote, the Constitution created a straightforward distribution of authority: The Legislature wields the power “to prescribe general rules for the government of society,” but “the application of those rules to individuals in soci- ety” is the “duty” of the Judiciary. Fletcher v. Peck, 6 Cranch 87, 136 (1810). Article III, in other words, sets out not only what the Judiciary can do, but also what Con- gress cannot. Congress violates this arrangement when it arrogates the judicial power to itself and decides a particular case. We first enforced that rule in United States v. Klein, 13 Wall. 128 (1872), when the Radical Republican Congress passed a law targeting suits by pardoned Confederates. Although this Court had held that a pardon was proof of loyalty and entitled claimants to damages for property seized by the Union, see United States v. Padelford, 9 Wall. 531, 543 (1870), Congress sought to block Confeder- ate supporters from receiving such compensation. It 4 PATCHAK v. ZINKE ROBERTS, C. J., dissenting therefore enacted a statute barring rebels from using a pardon as evidence of loyalty, instead requiring the courts to dismiss for want of jurisdiction any suit based on a pardon. This Court declared the law unconstitutional. Congress, in addition to impairing the President’s pardon power, had “prescribe[d] rules of decision to the Judicial Department . . . in cases pending before it.” Klein, 13 Wall., at 146. The Court accordingly held that the statute “passed the limit which separates the legislative from the judicial power.” Id., at 147. We have frequently reiterated this basic premise of the separation of powers. In Pope v. United States, 323 U.S. 1 (1944), the Court recognized that “changing the rules of decision for the determination of a pending case” would impermissibly interfere with judicial independence, but held that such concerns were absent when Congress con- sented to a claims settlement pursuant to its broad power “to provide for the payment of debts.” Id., at 9; see Chadha, 462 U.S., at 966, n. 9 (Powell, J., concurring in judgment) (“When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was de- signed to avoid is not implicated.”). As we also explained in United States v. Sioux Nation, 448 U.S. 371, 398 (1980), because Congress has “no judicial powers” to ren- der judgment “directly,” it likewise cannot do so indirectly, by “direct[ing] . . . a court to find a judgment in a certain way.” That sort of legislative intervention constitutes an exercise of the judicial power, leaving “the court no adjudi- catory function to perform.” Id., at 392. Most recently, we reaffirmed the fundamental proposition that “Congress could not enact a statute directing that, in ‘Smith v. Jones,’ ‘Smith wins.’ ” Bank Markazi, 578 U. S., at ___, n. 17 (slip op., at 13, n. 17). Cite as: 583 U. S. ____ (2018) 5 ROBERTS, C. J., dissenting B As the plurality acknowledges, ante, at 14, the facts of this case are stark. The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) sought land on which to build a casino. The Band identified a 147-acre tract of land in rural southwestern Michigan (called the Bradley Property), and in 2005 the Secretary of the Interior an- nounced a final decision to take the property into trust on behalf of the Band. See 70 Fed. Reg. 25596 (2005). Fearing an “irreversibl[e] change [to] the rural character of the area,” David Patchak, a neighboring landowner, filed a lawsuit challenging the transfer. Patchak v. Jewell, 828 F.3d 995, 1000 (CADC 2016). The suit alleged that the Secretary lacked statutory authority to take the Brad- ley Property into trust. The Secretary asserted several grounds for dismissing the case, but this Court ultimately granted review and determined that “Patchak’s suit may proceed.” Match-E-Be-Nash-She-Wish Band of Potta- watomi Indians v. Patchak, 567 U.S. 209, 212 (2012) (Patchak I ). Following remand, while summary judgment briefing was underway in the District Court, the Band persuaded Congress to enact a standalone statute, the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act), to termi- nate the suit. Pub. L. 113–179, 128 Stat. 1913. Section 2(a) of the Act provides that the land “described in . . . 70 Fed. Reg. 25596”—the Bradley Property—“is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” Then Congress went further. In §2(b) it provided: “NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Fed- eral court as of the date of enactment of this Act) re- lating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be 6 PATCHAK v. ZINKE ROBERTS, C. J., dissenting promptly dismissed.” When Congress passed the Act in 2014, no other suits relating to the Bradley Property were pending, and the six-year statute of limitations on challenges to the Secre- tary’s action under the Administrative Procedure Act had expired. See 28 U.S. C. §2401(a). The Committees that recommended the legislation affirmed that the statute would make no “changes in existing [Indian] law.” H. R. Rep. No. 113–590, p. 5 (2014); S. Rep. No. 113–194, p. 4 (2014). Recognizing that the “clear intent” of Congress was “to moot this litigation,” the District Court dismissed Patchak’s case against the Secretary. Patchak v. Jewell, 109 F. Supp. 3d 152, 159 (DC 2015). The D. C. Circuit affirmed, also based on the “plain” directive of §2(b). 828 F.3d, at 1001. II Congress has previously approached the boundary between legislative and judicial power, but it has never gone so far as to target a single party for adverse treat- ment and direct the precise disposition of his pending case. Section 2(b)—remarkably—does just that. The plurality cites a smattering of “narrow statutes” that this Court has previously upheld. Ante, at 14. Yet none is as brazen as §2(b), either in terms of dictating a particular outcome or in singling out a particular party. Indeed, the bulk of those cases involved statutes that prospectively governed an open-ended class of disputes and left the courts to apply any new legal standard in the first instance. In Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856), for example, we addressed an enactment that permanently altered the legal status of a public bridge going forward by reclassifying it as a postal road. That provision, we later said, did not prescribe an “arbitrary rule of decision” but instead “left [the court] to Cite as: 583 U. S. ____ (2018) 7 ROBERTS, C. J., dissenting apply its ordinary rules” to determine whether the redes- ignation of the structure meant that it was an obstruction of interstate commerce. Klein, 13 Wall., at 146–147. And in Robertson v. Seattle Audubon Soc., 503 U.S. 429 (1992), the statute at issue made reference to specific cases only as a shorthand for identifying preexisting environmental law requirements. Id., at 440. The statute applied gener- ally—“replac[ing] the legal standards” for timber harvest- ing across 13 national forests—and explicitly reserved for judicial determination whether pending and future timber sales complied with the new standards. Id., at 437. Even Bank Markazi, which disclaimed a number of limits on Congress’s authority to intervene in ongoing litigation, did not suggest that Congress could dictate the result in a pending case. There, Congress inserted itself into a long-running dispute over whether terrorist victims could satisfy their judgments against Iran’s central bank, enacting a statute that eliminated certain legal impedi- ments to obtaining the bank’s assets. We upheld the law because it “establish[ed] new substantive standards” and entrusted “application of those standards” to the court. 578 U. S., at ___ (slip op., at 18). But the Court in Bank Markazi did not have before it anything like §2(b), which prevents the court from apply- ing any new legal standards and explicitly dictates the dismissal of a pending proceeding. The Court instead stressed that the judicial findings contemplated by the statute in Bank Markazi left “plenty” for the court “to adjudicate” before ruling that the bank was liable. Id., at ___, n. 20 (slip op., at 17, n. 20). The law, for instance, did not define the terms “beneficial interest” and “equitable title.” The District Court needed to resolve the scope of those phrases. Nor did it decide whether the assets were owned by the bank. That issue was also assigned to the court. And lastly, the statute did not settle whether the assets were held in New York or Luxembourg. The court 8 PATCHAK v. ZINKE ROBERTS, C. J., dissenting had to sort that out too. See ibid.1 Section 2(b) goes much further than the statute in Bank Markazi by disposing of the case outright, wresting any adjudicative responsibility from the courts. For all of the plurality’s discussion of the Federalist Papers and “exclusive” judicial power, ante, at 5, it is idle to suggest that §2(b) preserves any role for the court beyond that of stenographer. In addition, the Court in Bank Markazi repeatedly emphasized that the law was not a “one-case-only regime.” 578 U. S., at ___ (slip op., at 1). The law instead governed a category of postjudgment execution claims filed by over a thousand plaintiffs who, in 16 different actions, had ob- tained judgments against Iran in excess of $1.75 billion— facts suggesting more generality than is true of many Acts of Congress. By contrast, §2(b) targets a single pending case. Al- though the formal language of the provision—reaching any action “relating to” the Bradley Property—could theoreti- cally suggest a broader application, its practical operation unequivocally confirms that it concerns solely Patchak’s suit. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851 (1986) (explaining that the Court “re- view[s] Article III challenges . . . with an eye to the practi- cal effect that the congressional action will have on the constitutionally assigned role of the federal judiciary”). In an effort to identify a set of disputes to which §2(b) might apply, the plurality asserts that the provision extends to any action relating to the trust status of the property. Ante, at 15. Yet as the D. C. Circuit recognized, no other cases were pending when the provision was enacted; §2(b) affected “only . . . Patchak’s lawsuit.” 828 F.3d, at 1003. —————— 1 Not every Member of the Court thought these responsibilities ade- quate under Article III, see Bank Markazi, 578 U. S., at ___–___ (ROBERTS, C. J., dissenting) (slip op., at 12–13), but all save two did, and that’s a comfortable enough margin to establish the point. Cite as: 583 U. S. ____ (2018) 9 ROBERTS, C. J., dissenting And as the Band concedes, no additional suits challenging the transfer could have been filed under the APA—or any other statute of which we are aware—due to the expira- tion of the statute of limitations. Brief for Respondent Band 6. The plurality thus is simply incorrect when it asserts that the Act applies to a broad “class of cases.” Ante, at 8, 15. What are those cases? This is not a question of probing Congress’s “unex- pressed motives.” Ante, at 15. The text and operation of the provision instead make clear that the range of poten- tial applications is a class of one. Congress, in crafting a law tailored to Patchak’s suit, has pronounced the equiva- lent of “Smith wins.” III The plurality refuses to “jealously guard[ ]” against such a basic intrusion on judicial independence. Northern Pipeline, 458 U.S., at 60. It instead focuses on general tenets of jurisdiction stripping. In its view, §2(b) falls comfortably within Congress’s power to regulate the juris- diction of the federal courts, and accordingly does not constitute an exercise of judicial power. But nothing in §2(b) specifies that the statute is juris- dictional. That has special significance: To rein in “profli- gate use of the term ‘jurisdiction,’ ” this Court in recent cases has adopted a “bright line” rule treating statutory limitations as nonjurisdictional unless Congress “clearly states” otherwise. Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 153 (2013); Arbaugh v. Y & H Corp., 546 U.S. 500, 515–516 (2006). The Gun Lake Act does not clearly state that it imposes a jurisdictional restriction— the term is not mentioned anywhere in the title, headings, or text of the Act. Indeed, we have previously found that nearly identical statutory language “says nothing about whether a federal court has subject-matter jurisdiction.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 164 (2010). 10 PATCHAK v. ZINKE ROBERTS, C. J., dissenting Compare 17 U.S. C. §411(a), the statute in Reed Elsevier (“no civil action . . . shall be instituted”), with §2(b) (“an action . . . shall not be filed or maintained”).2 And since the Gun Lake Act was passed well after our series of cases setting forth a clear statement rule, we may “presume” that Congress was conscious of that obligation when it drafted §2(b). United States v. Wells, 519 U.S. 482, 495 (1997). After stretching to read §2(b) as jurisdictional, the plu- rality dedicates considerable effort to defending Congress’s broad authority over the jurisdiction of the federal courts. Ante, at 7–10. That background principle is undoubtedly correct—and undoubtedly irrelevant for the purposes of evaluating §2(b). For while the greater power to create inferior federal courts generally includes the power to strip those courts of jurisdiction, at a certain point that lesser exercise of authority invades the judicial function. “Congress has the power (within limits) to tell the courts what classes of cases they may decide, but not to prescribe or superintend how they decide those cases.” Arlington v. FCC, 569 U.S. 290, 297 (2013) (majority opinion of Scalia, J.) (emphasis added; citations omitted). In other words, Congress cannot, under the guise of altering federal juris- diction, dictate the result of a pending proceeding. Klein, after all, drew precisely the same distinction when it considered the provision stripping jurisdiction —————— 2 The plurality suggests an analogy to Gonzalez v. Thaler, 565 U.S. 134 (2012), which addressed in passing the familiar hurdle in habeas proceedings that “an appeal may not be taken” unless a judge issues a “certificate of appealability.” Id., at 142 (quoting 28 U.S. C. §2253(c)(1)). But that gatekeeping requirement—which dates back to 1908—has long been understood as a direct limitation “on the power of federal courts to grant writs of habeas corpus,” Miller-El v. Cockrell, 537 U.S. 322, 336–338 (2003), and appears alongside other provisions that speak in “clear jurisdictional language,” Gonzalez, 565 U.S., at 142 (internal quotation marks omitted). Nothing similar is at issue here. Cite as: 583 U. S. ____ (2018) 11 ROBERTS, C. J., dissenting over any suit based on a pardon. Chief Justice Chase’s opinion for the Court explained that if the statute had “simply” removed jurisdiction over “a particular class of cases,” it would be regarded as “an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” 13 Wall., at 145, 146. But because the withdrawal of jurisdiction was a “means to an end,” founded “solely on the application of a rule of decision,” the Court held that the law violated the separation of powers. Ibid.; see R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 324 (7th ed. 2015) (recog- nizing that “not every congressional attempt to influence the outcome of cases, even if phrased in jurisdictional language, can be justified as a valid exercise of a power over jurisdiction”). Contrary to the plurality, I would hold that Congress exercises the judicial power when it manipulates jurisdic- tional rules to decide the outcome of a particular pending case. Because the Legislature has no authority to direct entry of judgment for a party, it cannot achieve the same result by stripping jurisdiction over a particular proceed- ing. Does the plurality really believe that there is a mate- rial difference between a law stating “The court lacks jurisdiction over Jones’s pending suit against Smith” and one stating “In the case of Smith v. Jones, Smith wins”? In both instances, Congress has resolved the specific case in Smith’s favor. Over and over, the plurality intones that §2(b) does not impinge on the judicial power because the provision “changes the law.” See ante, at 6–7, 10–14. But all that §2(b) does is deprive the court of jurisdiction in a single proceeding. If that is sufficient to change the law, the plurality’s rule “provides no limiting principle” on Con- gress’s ability to assume the role of judge and decide the outcome of pending cases. Northern Pipeline, 458 U.S., at 12 PATCHAK v. ZINKE ROBERTS, C. J., dissenting 73. In my view, the concept of “changing the law” must imply some measure of generality or preservation of an adjudicative role for the courts. The weight of our juris- diction stripping precedent bears this out. Almost all of the examples the plurality cites, see ante, at 10, 13, con- templated the wholesale repeal of a generally applicable jurisdictional provision. See Hallowell v. Commons, 239 U.S. 506, 508 (1916) (“The [provision] applies with the same force to all cases and was embodied in a statute that no doubt was intended to apply to all.”); Cary v. Curtis, 3 How. 236, 245 (1845); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922). The Court, to date, has never sustained a law that withdraws jurisdiction over a particular lawsuit. The closest analogue is of course Ex parte McCardle, 7 Wall. 506 (1869), which the plurality nonchalantly cites as one of its leading authorities. McCardle arose amid a pitched national debate over Reconstruction of the former Confederacy. William McCardle, an unreconstructed newspaper editor, was being held in military custody for inciting insurrection. After unsuccessfully applying for federal habeas relief in the circuit court, McCardle ap- pealed to the Supreme Court, raising a broad challenge to the constitutionality of Reconstruction. The Court heard argument on his habeas appeal over the course of four days in March 1868. Before the Court could render its decision, however, the Radical Republican Congress— in an acknowledged effort to sweep the case from the docket—enacted a statute withdrawing the Supreme Court’s appellate jurisdiction in habeas cases. Van Alstyne, A Critical Guide to Ex parte McCardle, 15 Ariz. L. Rev. 229, 239–241 (1973). The Court unanimously dismissed McCardle’s appeal. In a brief opinion, Chief Justice Chase sidestepped any Cite as: 583 U. S. ____ (2018) 13 ROBERTS, C. J., dissenting consideration of Congress’s attempt to preclude a decision in the case. Faced with a “plain[ ] instance of positive exception,” the Court held that it lacked power to review McCardle’s claims. 7 Wall., at 514. The Court’s decision in McCardle has been alternatively described as “caving to the political dominance” of the Radical Republicans or “acceding to Congress’s effort to silence the Court.” Meltzer, The Story of Ex parte McCardle, in Federal Courts Stories 73 (V. Jackson & J. Resnick eds. 2010). Read for all it is worth, the decision is also inconsistent with the approach the Court took just three years later in Klein, where Chief Justice Chase (a dominant character in this drama) stressed that “[i]t is of vital importance” that the legislative and judicial powers “be kept distinct.” 13 Wall., at 147. The facts of McCardle, however, can support a more limited understanding of Congress’s power to divest the courts of jurisdiction. For starters, the repealer provision covered more than a single pending dispute; it applied to a class of cases, barring anyone from invoking the Supreme Court’s appellate jurisdiction in habeas cases for the next two decades. In addition, the Court’s decision did not foreclose all avenues for judicial review of McCardle’s complaint. As Chase made clear in the penultimate para- graph of the opinion—and confirmed later that year in his opinion for the Court in Ex parte Yerger, 8 Wall. 85 (1869)—the statute did not deny “the whole appellate power of the Court.” 7 Wall., at 515. McCardle, by taking a different procedural route and filing an original habeas action, could have had his case heard on the merits.3 —————— 3 The plurality surmises that McCardle reserved an alternative ave- nue for relief in response to a perceived problem under the Suspension Clause. Ante, at 9, n. 4. But regardless of the basis for that reserva- tion, our point is simply that, in sustaining a jurisdictional repeal that leaves a claimant without any prospect for relief, the plurality goes beyond what the Court in McCardle upheld. 14 PATCHAK v. ZINKE ROBERTS, C. J., dissenting Section 2(b), on the other hand, has neither saving grace. It ends Patchak’s suit for good. His federal case is dismissed, and he has no alternative means of review anywhere else. See 25 U.S. C. §1322(a) (providing that state courts, absent the consent of the tribe, may not exercise civil jurisdiction over trust land). Section 2(b) thus reaches further than the typical jurisdictional repeal, which “takes away no substantive right but simply changes the tribunal that is to hear the case,” Landgraf, 511 U.S., at 274. Because §2(b) singles out Patchak’s suit, specifies how it must be resolved, and deprives him of any judicial forum for his claim, the decision to uphold that provision surpasses even McCardle as the highwater mark of legislative encroachment on Article III. Indeed, although the stakes of this particular dispute may seem insignificant, the principle that the plurality would enshrine is of historic consequence. In no uncertain terms, the plurality disavows any limitations on Con- gress’s power to determine judicial results, conferring on the Legislature a colonial-era authority to pick winners and losers in pending litigation as it pleases. The Court in Bank Markazi said it was holding the line against this sort of legislative usurpation. See 578 U. S., at ___–___, and n. 17, ___ (slip op., at 12–13, and n. 17, 18). The plurality would yield even that last ditch. IV While the plurality reaches to read the Gun Lake Act as stripping jurisdiction, JUSTICE GINSBURG’s concurrence, joined by JUSTICE SOTOMAYOR, strains further to construe §2(b) as restoring the Government’s sovereign immunity from suit. To reinstate sovereign immunity after it has been waived, Congress must express “an unambiguous intention to withdraw” a remedy. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019 (1984). Congress has not made that showing here. Section 2(b)—which provides that “an Cite as: 583 U. S. ____ (2018) 15 ROBERTS, C. J., dissenting action . . . relating to the [Bradley Property] . . . shall be promptly dismissed”—bears none of the unmistakable hallmarks of a provision withdrawing the sovereign’s consent to suit. The concurrence first relies on a hunch, based on the Court’s earlier determination that Patchak’s suit was not barred by sovereign immunity. See Patchak I, 567 U.S., at 224. But hunches do not make for an unambiguous expression of intent. Nor, of course, does one lone refer- ence to “immunity” in the legislative history. United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992) (“[T]he ‘unequivocal expression’ of elimination of sovereign immunity that we insist upon . . . cannot be supplied by a committee report.”). Saving the text for last, the concurrence fails to identify a single instance where the Court has treated a statute that does not mention “immunity,” “consent to be sued,” or even the “United States” as restoring sovereign immunity. The only basis for its interpretation is the purported simi- larity between the language of the Gun Lake Act and the waiver of immunity in the Administrative Procedure Act. In drawing this comparison, however, JUSTICE GINSBURG leaves out the critical element of that waiver. See ante, at 2 (opinion concurring in judgment). In full, the APA pro- vision states that a suit “shall not be dismissed . . . on the ground that it is against the United States.” 5 U.S. C. §702 (emphasis added). Section 2(b), as noted, contains no such reference to the sovereign. As for JUSTICE BREYER’s concurrence, “dot[ting] all the i’s,” “simplif[ying] judicial decisionmaking,” and “elimi- nat[ing] the cost of litigating a lawsuit” are nothing but cavalier euphemisms for exercising the judicial power. Ante, at 2. JUSTICE BREYER assumes that §2(a) is consti- tutionally unobjectionable, and that §2(b) seeks the same “real-world result.” Ibid. But if §2(a) is constitutional, it is because the provision establishes new substantive 16 PATCHAK v. ZINKE ROBERTS, C. J., dissenting standards and leaves the court to apply those standards in the first instance. That is the rule set forth plainly in Bank Markazi. And if that is so, §2(b) does not simply supplement §2(a)—it short-circuits the requisite adjudica- tive process and decides the suit outright. The proper allocation of authority under the Constitution is very much part of the “real world.” Pursuant to that basic equilibrium, Congress cannot “gild the lily” by relieving the Judiciary of its job—applying the law to the case before it. * * * The Framers saw this case coming. They knew that if Congress exercised the judicial power, it would be impos- sible “to guard the Constitution and the rights of individu- als from . . . serious oppressions.” The Federalist No. 78, at 469 (A. Hamilton). Patchak thought his rights were violated, and went to court. He expected to have his case decided by judges whose independence from political pressure was ensured by the safeguards of Article III—life tenure and salary protection. It was instead decided by Congress, in favor of the litigant it preferred, under a law adopted just for the occasion. But it is our responsibility under the Constitution to decide cases and controversies according to law. It is our responsibility to, as the judicial oath provides, “administer justice without respect to per- sons.” 28 U.S. C. §453. And it is our responsibility to “firm[ly]” and “inflexibl[y]” resist any effort by the Legisla- ture to seize the judicial power for itself. The Federalist No. 78, at 470. I respectfully dissent

Two Terms ago, this Court unanimously agreed that Congress could not pass a law directing that, in the hypo- thetical pending case of Smith v. Jones, “Smith wins.” Bank Markazi v. Peterson, 578 U. S. n. 17 (slip op., at 13, n. 17). Today, the plurality refuses to enforce even that limited principle in the face of a very real statute that dictates the disposition of a single pend- ing case. Contrary to the plurality, I would not cede un- qualified authority to the Legislature to decide the out- come of such a case. Article III of the Constitution vests that responsibility in the Judiciary alone. I A Article III, of the Constitution confers the “judicial Power of the United States” on “one supreme Court” and such “inferior Courts” as Congress might establish. That provision, our cases have recognized, is an “inseparable element of the constitutional system of checks and bal- ances,” which sets aside for the Judiciary the authority to decide cases and controversies according to law. Northern Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) (plurality opinion). “Under the basic concept 2 PATCHAK v. ZINKE ROBERTS, C. J., dissenting of separation of powers,” the judicial power to interpret and apply the law “can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.” (inter- nal quotation marks omitted). The Framers’ decision to establish a judiciary “truly distinct from both the legislature and the executive,” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamil- ton), was born of their experience with legislatures “ex- tending the sphere of [their] activity and drawing all power into [their] impetuous vortex,” No. 48, at 309 (J. Madison). Throughout the 17th and 18th centuries, colo- nial legislatures routinely functioned as courts of equity, “grant[ing] exemptions from standing law, prescrib[ing] the law to be applied to particular controversies, and even decid[ing] the merits of cases.” Manning, Response, Deriv- ing Rules of Statutory Interpretation from the Constitu- tion, In Virginia, for instance, Thomas Jefferson lamented that the assem- bly had, “in many instances, decided rights which should have been left to judiciary controversy.” Notes on the State of Virginia 120 (W. Peden ed. 1982). And in Penn- sylvania, the Council of Censors—a body charged with ensuring compliance with the state constitution— denounced the state assembly’s practice of “extending their deliberations to the cases of individuals” in order to ease the “hardships which will always arise from the operation of general laws.” Report of the Committee of the Pennsylvania Council of Censors 38, 43 (F. Bailey ed. 1784). “[T]here is reason to think,” the Censors reported, “that favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief.” Given the “disarray” produced by this “system of legisla- Cite as: 583 U. S. (2018) 3 ROBERTS, C. J., dissenting tive equity,” the Framers resolved to take the innovative step of creating an independent judiciary. They recog- nized that such a structural limitation on the power of the legislative and executive branches was necessary to secure individual freedom. As James Madison put it, “[w]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary con- trol.” The Federalist No. 47, at 303 (citing 1 Montesquieu, The Spirit of the Laws). The Constitution’s division of power thus reflects the “concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person.” INS v. (Powell, J., concurring in judgment). The Framers protected against that threat, both in “specific provisions, such as the Bill of Attainder Clause,” and in the “general allocation” of the judicial power to the Judiciary alone. As Chief Justice Mar- shall wrote, the Constitution created a straightforward distribution of authority: The Legislature wields the power “to prescribe general rules for the government of society,” but “the application of those rules to individuals in soci- ety” is the “duty” of the Judiciary. Fletcher v. Peck, 6 Cranch 87, 136 (1810). Article III, in other words, sets out not only what the Judiciary can do, but also what Con- gress cannot. Congress violates this arrangement when it arrogates the judicial power to itself and decides a particular case. We first enforced that rule in United States v. 13 Wall. 128 (1872), when the Radical Republican Congress passed a law targeting suits by pardoned Confederates. Although this Court had held that a pardon was proof of loyalty and entitled claimants to damages for property seized by the Union, see United States v. Padelford, 9 Wall. 531, 543 (1870), Congress sought to block Confeder- ate supporters from receiving such compensation. It 4 PATCHAK v. ZINKE ROBERTS, C. J., dissenting therefore enacted a statute barring rebels from using a pardon as evidence of loyalty, instead requiring the courts to dismiss for want of jurisdiction any suit based on a pardon. This Court declared the law unconstitutional. Congress, in addition to impairing the President’s pardon power, had “prescribe[d] rules of decision to the Judicial Department in cases pending before it.” 13 Wall., at 146. The Court accordingly held that the statute “passed the limit which separates the legislative from the judicial power.” We have frequently reiterated this basic premise of the separation of powers. In (1944), the Court recognized that “changing the rules of decision for the determination of a pending case” would impermissibly interfere with judicial independence, but held that such concerns were absent when Congress con- sented to a claims settlement pursuant to its broad power “to provide for the payment of debts.” ; see 462 U.S., 66, n. 9 (Powell, J., concurring in judgment) (“When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was de- signed to avoid is not implicated.”). As we also explained in United (1980), because Congress has “no judicial powers” to ren- der judgment “directly,” it likewise cannot do so indirectly, by “direct[ing] a court to find a judgment in a certain way.” That sort of legislative intervention constitutes an exercise of the judicial power, leaving “the court no adjudi- catory function to perform.” Most recently, we reaffirmed the fundamental proposition that “Congress could not enact a statute directing that, in ‘Smith v. Jones,’ ‘Smith wins.’ ” Bank Markazi, 578 U. S., at n. 17 (slip op., at 13, n. 17). Cite as: 583 U. S. (2018) 5 ROBERTS, C. J., dissenting B As the plurality acknowledges, ante, at 14, the facts of this case are stark. The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) sought land on which to build a casino. The Band identified a 147-acre tract of land in rural southwestern Michigan (called the Bradley Property), and in 2005 the Secretary of the Interior an- nounced a final decision to take the property into trust on behalf of the Band. See (2005). Fearing an “irreversibl[e] change [to] the rural character of the area,” David Patchak, a neighboring landowner, filed a lawsuit challenging the transfer. The suit alleged that the Secretary lacked statutory authority to take the Brad- ley Property into trust. The Secretary asserted several grounds for dismissing the case, but this Court ultimately granted review and determined that “Patchak’s suit may proceed.” Match-E-Be-Nash-She-Wish Band of Potta- watomi (Patchak I ). Following remand, while summary judgment briefing was underway in the District Court, the Band persuaded Congress to enact a standalone statute, the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act), to termi- nate the suit. Pub. L. 113–179, Section 2(a) of the Act provides that the land “described in 70 Fed. Reg. 25596”—the Bradley Property—“is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” Then Congress went further. In it provided: “NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Fed- eral court as of the date of enactment of this Act) re- lating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be 6 PATCHAK v. ZINKE ROBERTS, C. J., dissenting promptly dismissed.” When Congress passed the Act in 2014, no other suits relating to the Bradley Property were pending, and the six-year statute of limitations on challenges to the Secre- tary’s action under the Administrative Procedure Act had expired. See 28 U.S. C. The Committees that recommended the legislation affirmed that the statute would make no “changes in existing [Indian] law.” H. R. Rep. No. 113–590, p. 5 (2014); S. Rep. No. 113–194, p. 4 (2014). Recognizing that the “clear intent” of Congress was “to moot this litigation,” the District Court dismissed Patchak’s case against the Secretary. The D. C. Circuit affirmed, also based on the “plain” directive of 828 F.3d, at 1001. II Congress has previously approached the boundary between legislative and judicial power, but it has never gone so far as to target a single party for adverse treat- ment and direct the precise disposition of his pending case. Section 2(b)—remarkably—does just that. The plurality cites a smattering of “narrow statutes” that this Court has previously upheld. Ante, at 14. Yet none is as brazen as either in terms of dictating a particular outcome or in singling out a particular party. Indeed, the bulk of those cases involved statutes that prospectively governed an open-ended class of disputes and left the courts to apply any new legal standard in the first instance. In for example, we addressed an enactment that permanently altered the legal status of a public bridge going forward by reclassifying it as a postal road. That provision, we later said, did not prescribe an “arbitrary rule of decision” but instead “left [the court] to Cite as: 583 U. S. (2018) 7 ROBERTS, C. J., dissenting apply its ordinary rules” to determine whether the redes- ignation of the structure meant that it was an obstruction of interstate commerce. –147. And in the statute at issue made reference to specific cases only as a shorthand for identifying preexisting environmental law requirements. The statute applied gener- ally—“replac[ing] the legal standards” for timber harvest- ing across 13 national forests—and explicitly reserved for judicial determination whether pending and future timber sales complied with the new standards. Even Bank Markazi, which disclaimed a number of limits on Congress’s authority to intervene in ongoing litigation, did not suggest that Congress could dictate the result in a pending case. There, Congress inserted itself into a long-running dispute over whether terrorist victims could satisfy their judgments against Iran’s central bank, enacting a statute that eliminated certain legal impedi- ments to obtaining the bank’s assets. We upheld the law because it “establish[ed] new substantive standards” and entrusted “application of those standards” to the court. 578 U. S., at (slip op., at 18). But the Court in Bank Markazi did not have before it anything like which prevents the court from apply- ing any new legal standards and explicitly dictates the dismissal of a pending proceeding. The Court instead stressed that the judicial findings contemplated by the statute in Bank Markazi left “plenty” for the court “to adjudicate” before ruling that the bank was liable. at n. 20 (slip op., at 17, n. 20). The law, for instance, did not define the terms “beneficial interest” and “equitable title.” The District Court needed to resolve the scope of those phrases. Nor did it decide whether the assets were owned by the bank. That issue was also assigned to the court. And lastly, the statute did not settle whether the assets were held in New York or Luxembourg. The court 8 PATCHAK v. ZINKE ROBERTS, C. J., dissenting had to sort that out too. See ibid.1 Section 2(b) goes much further than the statute in Bank Markazi by disposing of the case outright, wresting any adjudicative responsibility from the courts. For all of the plurality’s discussion of the Federalist Papers and “exclusive” judicial power, ante, at 5, it is idle to suggest that preserves any role for the court beyond that of stenographer. In addition, the Court in Bank Markazi repeatedly emphasized that the law was not a “one-case-only regime.” 578 U. S., at (slip op., at 1). The law instead governed a category of postjudgment execution claims filed by over a thousand plaintiffs who, in 16 different actions, had ob- tained judgments against Iran in excess of $1.75 billion— facts suggesting more generality than is true of many Acts of Congress. By contrast, targets a single pending case. Al- though the formal language of the provision—reaching any action “relating to” the Bradley Property—could theoreti- cally suggest a broader application, its practical operation unequivocally confirms that it concerns solely Patchak’s suit. See Commodity Futures Trading (explaining that the Court “re- view[s] Article III challenges with an eye to the practi- cal effect that the congressional action will have on the constitutionally assigned role of the federal judiciary”). In an effort to identify a set of disputes to which might apply, the plurality asserts that the provision extends to any action relating to the trust status of the property. Ante, at 15. Yet as the D. C. Circuit recognized, no other cases were pending when the provision was enacted; affected “only Patchak’s lawsuit.” —————— 1 Not every Member of the Court thought these responsibilities ade- quate under Article III, see Bank Markazi, 578 U. S., at – (ROBERTS, C. J., dissenting) (slip op., at 12–13), but all save two did, and that’s a comfortable enough margin to establish the point. Cite as: 583 U. S. (2018) 9 ROBERTS, C. J., dissenting And as the Band concedes, no additional suits challenging the transfer could have been filed under the APA—or any other statute of which we are aware—due to the expira- tion of the statute of limitations. Brief for Respondent Band 6. The plurality thus is simply incorrect when it asserts that the Act applies to a broad “class of cases.” Ante, at 8, 15. What are those cases? This is not a question of probing Congress’s “unex- pressed motives.” Ante, at 15. The text and operation of the provision instead make clear that the range of poten- tial applications is a class of one. Congress, in crafting a law tailored to Patchak’s suit, has pronounced the equiva- lent of “Smith wins.” III The plurality refuses to “jealously guard[ ]” against such a basic intrusion on judicial independence. Northern It instead focuses on general tenets of jurisdiction stripping. In its view, falls comfortably within Congress’s power to regulate the juris- diction of the federal courts, and accordingly does not constitute an exercise of judicial power. But nothing in specifies that the statute is juris- dictional. That has special significance: To rein in “profli- gate use of the term ‘jurisdiction,’ ” this Court in recent cases has adopted a “bright line” rule treating statutory limitations as nonjurisdictional unless Congress “clearly states” otherwise. ; The Gun Lake Act does not clearly state that it imposes a jurisdictional restriction— the term is not mentioned anywhere in the title, headings, or text of the Act. Indeed, we have previously found that nearly identical statutory language “says nothing about whether a federal court has subject-matter jurisdiction.” Reed Elsevier, 10 PATCHAK v. ZINKE ROBERTS, C. J., dissenting Compare 17 U.S. C. the statute in Reed Elsevier (“no civil action shall be instituted”), with (“an action shall not be filed or maintained”).2 And since the Gun Lake Act was passed well after our series of cases setting forth a clear statement rule, we may “presume” that Congress was conscious of that obligation when it drafted United (1997). After stretching to read as jurisdictional, the plu- rality dedicates considerable effort to defending Congress’s broad authority over the jurisdiction of the federal courts. Ante, at 7–10. That background principle is undoubtedly correct—and undoubtedly irrelevant for the purposes of evaluating For while the greater power to create inferior federal courts generally includes the power to strip those courts of jurisdiction, at a certain point that lesser exercise of authority invades the judicial function. “Congress has the power (within limits) to tell the courts what classes of cases they may decide, but not to prescribe or superintend how they decide those cases.” Arlington v. FCC, (majority opinion of Scalia, J.) (emphasis added; citations omitted). In other words, Congress cannot, under the guise of altering federal juris- diction, dictate the result of a pending proceeding. after all, drew precisely the same distinction when it considered the provision stripping jurisdiction —————— 2 The plurality suggests an analogy to Gonzalez v. Thaler, 565 U.S. 134 which addressed in passing the familiar hurdle in habeas proceedings that “an appeal may not be taken” unless a judge issues a “certificate of appealability.” and appears alongside other provisions that speak in “clear jurisdictional language,” Gonzalez, 565 U.S., at 142 (internal quotation marks omitted). Nothing similar is at issue here. Cite as: 583 U. S. (2018) 11 ROBERTS, C. J., dissenting over any suit based on a pardon. Chief Justice Chase’s opinion for the Court explained that if the statute had “simply” removed jurisdiction over “a particular class of cases,” it would be regarded as “an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” 13 Wall., at 145, 146. But because the withdrawal of jurisdiction was a “means to an end,” founded “solely on the application of a rule of decision,” the Court held that the law violated the separation of powers. ; see R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 324 (recog- nizing that “not every congressional attempt to influence the outcome of cases, even if phrased in jurisdictional language, can be justified as a valid exercise of a power over jurisdiction”). Contrary to the plurality, I would hold that Congress exercises the judicial power when it manipulates jurisdic- tional rules to decide the outcome of a particular pending case. Because the Legislature has no authority to direct entry of judgment for a party, it cannot achieve the same result by stripping jurisdiction over a particular proceed- ing. Does the plurality really believe that there is a mate- rial difference between a law stating “The court lacks jurisdiction over Jones’s pending suit against Smith” and one stating “In the case of Smith v. Jones, Smith wins”? In both instances, Congress has resolved the specific case in Smith’s favor. Over and over, the plurality intones that does not impinge on the judicial power because the provision “changes the law.” See ante, at 6–7, 10–14. But all that does is deprive the court of jurisdiction in a single proceeding. If that is sufficient to change the law, the plurality’s rule “provides no limiting principle” on Con- gress’s ability to assume the role of judge and decide the outcome of pending cases. Northern 458 U.S., at 12 PATCHAK v. ZINKE ROBERTS, C. J., dissenting 73. In my view, the concept of “changing the law” must imply some measure of generality or preservation of an adjudicative role for the courts. The weight of our juris- diction stripping precedent bears this out. Almost all of the examples the plurality cites, see ante, at 10, 13, con- templated the wholesale repeal of a generally applicable jurisdictional provision. See Hallowell v. Commons, 239 U.S. 506, 508 (1916) (“The [provision] applies with the same force to all cases and was embodied in a statute that no doubt was intended to apply to all.”); Cary v. Curtis, 3 How. 236, 245 (1845); see also ; The Court, to date, has never sustained a law that withdraws jurisdiction over a particular lawsuit. The closest analogue is of course Ex parte McCardle, 7 Wall. 506 (1869), which the plurality nonchalantly cites as one of its leading authorities. McCardle arose amid a pitched national debate over Reconstruction of the former Confederacy. William McCardle, an unreconstructed newspaper editor, was being held in military custody for inciting insurrection. After unsuccessfully applying for federal habeas relief in the circuit court, McCardle ap- pealed to the Supreme Court, raising a broad challenge to the constitutionality of Reconstruction. The Court heard argument on his habeas appeal over the course of four days in March 1868. Before the Court could render its decision, however, the Radical Republican Congress— in an acknowledged effort to sweep the case from the docket—enacted a statute withdrawing the Supreme Court’s appellate jurisdiction in habeas cases. Van Alstyne, A Critical Guide to Ex parte McCardle, 239–241 (1973). The Court unanimously dismissed McCardle’s appeal. In a brief opinion, Chief Justice Chase sidestepped any Cite as: 583 U. S. (2018) 13 ROBERTS, C. J., dissenting consideration of Congress’s attempt to preclude a decision in the case. Faced with a “plain[ ] instance of positive exception,” the Court held that it lacked power to review McCardle’s The Court’s decision in McCardle has been alternatively described as “caving to the political dominance” of the Radical Republicans or “acceding to Congress’s effort to silence the Court.” Meltzer, The Story of Ex parte McCardle, in Federal Courts Stories 73 Read for all it is worth, the decision is also inconsistent with the approach the Court took just three years later in where Chief Justice Chase (a dominant character in this drama) stressed that “[i]t is of vital importance” that the legislative and judicial powers “be kept distinct.” 13 Wall., The facts of McCardle, however, can support a more limited understanding of Congress’s power to divest the courts of jurisdiction. For starters, the repealer provision covered more than a single pending dispute; it applied to a class of cases, barring anyone from invoking the Supreme Court’s appellate jurisdiction in habeas cases for the next two decades. In addition, the Court’s decision did not foreclose all avenues for judicial review of McCardle’s complaint. As Chase made clear in the penultimate para- graph of the opinion—and confirmed later that year in his opinion for the Court in Ex parte Yerger, (1869)—the statute did not deny “the whole appellate power of the Court.” McCardle, by taking a different procedural route and filing an original habeas action, could have had his case heard on the merits.3 —————— 3 The plurality surmises that McCardle reserved an alternative ave- nue for relief in response to a perceived problem under the Suspension Clause. Ante, n. 4. But regardless of the basis for that reserva- tion, our point is simply that, in sustaining a jurisdictional repeal that leaves a claimant without any prospect for relief, the plurality goes beyond what the Court in McCardle upheld. 14 PATCHAK v. ZINKE ROBERTS, C. J., dissenting Section 2(b), on the other hand, has neither saving grace. It ends Patchak’s suit for good. His federal case is dismissed, and he has no alternative means of review anywhere else. See 25 U.S. C. 322(a) (providing that state courts, absent the consent of the tribe, may not exercise civil jurisdiction over trust land). Section 2(b) thus reaches further than the typical jurisdictional repeal, which “takes away no substantive right but simply changes the tribunal that is to hear the case,” Landgraf, 511 U.S., at Because singles out Patchak’s suit, specifies how it must be resolved, and deprives him of any judicial forum for his claim, the decision to uphold that provision surpasses even McCardle as the highwater mark of legislative encroachment on Article III. Indeed, although the stakes of this particular dispute may seem insignificant, the principle that the plurality would enshrine is of historic consequence. In no uncertain terms, the plurality disavows any limitations on Con- gress’s power to determine judicial results, conferring on the Legislature a colonial-era authority to pick winners and losers in pending litigation as it pleases. The Court in Bank Markazi said it was holding the line against this sort of legislative usurpation. See 578 U. S., at –, and n. 17, (slip op., at 12–13, and n. 17, 18). The plurality would yield even that last ditch. IV While the plurality reaches to read the Gun Lake Act as stripping jurisdiction, JUSTICE GINSBURG’s concurrence, joined by JUSTICE SOTOMAYOR, strains further to construe as restoring the Government’s sovereign immunity from suit. To reinstate sovereign immunity after it has been waived, Congress must express “an unambiguous intention to withdraw” a remedy. Congress has not made that showing here. Section 2(b)—which provides that “an Cite as: 583 U. S. (2018) 15 ROBERTS, C. J., dissenting action relating to the [Bradley Property] shall be promptly dismissed”—bears none of the unmistakable hallmarks of a provision withdrawing the sovereign’s consent to suit. The concurrence first relies on a hunch, based on the Court’s earlier determination that Patchak’s suit was not barred by sovereign immunity. See Patchak I, 567 U.S., at 224. But hunches do not make for an unambiguous expression of intent. Nor, of course, does one lone refer- ence to “immunity” in the legislative history. United (“[T]he ‘unequivocal expression’ of elimination of sovereign immunity that we insist upon cannot be supplied by a committee report.”). Saving the text for last, the concurrence fails to identify a single instance where the Court has treated a statute that does not mention “immunity,” “consent to be sued,” or even the “United States” as restoring sovereign immunity. The only basis for its interpretation is the purported simi- larity between the language of the Gun Lake Act and the waiver of immunity in the Administrative Procedure Act. In drawing this comparison, however, JUSTICE GINSBURG leaves out the critical element of that waiver. See ante, at 2 (opinion concurring in judgment). In full, the APA pro- vision states that a suit “shall not be dismissed on the ground that it is against the United States.” 5 U.S. C. (emphasis added). Section 2(b), as noted, contains no such reference to the sovereign. As for JUSTICE BREYER’s concurrence, “dot[ting] all the i’s,” “simplif[ying] judicial decisionmaking,” and “elimi- nat[ing] the cost of litigating a lawsuit” are nothing but cavalier euphemisms for exercising the judicial power. Ante, at 2. JUSTICE BREYER assumes that is consti- tutionally unobjectionable, and that seeks the same “real-world result.” But if is constitutional, it is because the provision establishes new substantive 16 PATCHAK v. ZINKE ROBERTS, C. J., dissenting standards and leaves the court to apply those standards in the first instance. That is the rule set forth plainly in Bank Markazi. And if that is so, does not simply supplement —it short-circuits the requisite adjudica- tive process and decides the suit outright. The proper allocation of authority under the Constitution is very much part of the “real world.” Pursuant to that basic equilibrium, Congress cannot “gild the lily” by relieving the Judiciary of its job—applying the law to the case before it. * * * The Framers saw this case coming. They knew that if Congress exercised the judicial power, it would be impos- sible “to guard the Constitution and the rights of individu- als from serious oppressions.” The Federalist No. 78, at 469 (A. Hamilton). Patchak thought his rights were violated, and went to court. He expected to have his case decided by judges whose independence from political pressure was ensured by the safeguards of Article III—life tenure and salary protection. It was instead decided by Congress, in favor of the litigant it preferred, under a law adopted just for the occasion. But it is our responsibility under the Constitution to decide cases and controversies according to law. It is our responsibility to, as the judicial oath provides, “administer justice without respect to per- sons.” 28 U.S. C. And it is our responsibility to “firm[ly]” and “inflexibl[y]” resist any effort by the Legisla- ture to seize the judicial power for itself. The Federalist No. 78, at 470. I respectfully dissent

Justice Thomas

concurring

Eastern Enterprises v. Apfel

https://www.courtlistener.com/opinion/118239/eastern-enterprises-v-apfel/

https://www.courtlistener.com/api/rest/v3/clusters/118239/

1997-096

JUSTICE O'CONNOR'S opinion correctly concludes that the Coal Act's imposition of retroactive liability on petitioner violates the Takings Clause. I write separately to emphasize that the Ex Post Facto Clause of the Constitution, Art. I, § 9, cl. 3, even more clearly reflects the principle that "[r]etrospective laws are, indeed, generally unjust." 2 J. Story, Commentaries on the Constitution § 1398, p. 272 (5th ed. 1891). Since Calder v. Bull, 3 Dall. 386 (1798), however, this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was *539 principally justified because a contrary interpretation would render the Takings Clause unnecessary. See id., at 394 (opinion of Chase, J.). In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. Today's case, however, does present an unconstitutional taking, and I join Justice O'CONNOR's well-reasoned opinion in full. Justice Kennedy, concurring in the judgment and dissenting in part. The plurality's careful assessment of the history and purpose of the statute in question demonstrates the necessity to hold it arbitrary and beyond the legitimate authority of the Government to enact. In my view, which is in full accord with many of the plurality's conclusions, the relevant portions of the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 U.S. C. § 9701 et seq. (1994 ed. and Supp. II), must be invalidated as contrary to essential due process principles, without regard to the Takings Clause of the Fifth Amendment. I concur in the judgment holding the Coal Act unconstitutional but disagree with the plurality's Takings Clause analysis, which, it is submitted, is incorrect and quite unnecessary for decision of the case. I must record my respectful dissent on this issue. I The final Clause of the Fifth Amendment states: "[N]or shall private property be taken for public use, without just compensation." U. S. Const., Amdt. 5. The provision is known as the Takings Clause. The concept of a taking under the Clause has become a term of art, and my discussion begins here. *540 Our cases do not support the plurality's conclusion that the Coal Act takes property. The Coal Act imposes a staggering financial burden on the petitioner, Eastern Enterprises, but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest. The Coal Act does not appropriate, transfer, or encumber an estate in land (e. g., a lien on a particular piece of property), a valuable interest in an intangible (e. g., intellectual property), or even a bank account or accrued interest. The law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so. To the extent it affects property interests, it does so in a manner similar to many laws; but until today, none were thought to constitute takings. To call this sort of governmental action a taking as a matter of constitutional interpretation is both imprecise and, with all due respect, unwise. As the role of Government expanded, our experience taught that a strict line between a taking and a regulation is difficult to discern or to maintain. This led the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), to try to span the two concepts when specific property was subjected to what the owner alleged to be excessive regulation. "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Id., at 415. The quoted sentence is, of course, the genesis of the so-called regulatory takings doctrine. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992) ("Prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, it was generally thought that the Takings Clause reached only a `direct appropriation' of property or the functional equivalent of a `practical ouster of [the owner's] possession' " (citations omitted)). Without denigrating the importance the *541 regulatory takings concept has assumed in our law, it is fair to say it has proved difficult to explain in theory and to implement in practice. Cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123 (1978) ("The question of what constitutes a `taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty"); Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979) (the regulatory taking question requires an "essentially ad hoc, factual inquir[y]"). Until today, however, one constant limitation has been that in all of the cases where the regulatory taking analysis has been employed, a specific property right or interest has been at stake. After the decision in Pennsylvania Coal Co. v. Mahon, supra, we confronted cases where specific and identified properties or property rights were alleged to come within the regulatory takings prohibition: air rights for high-rise buildings, Penn Central, supra; zoning on parcels of real property, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); Agins v. City of Tiburon, 447 U.S. 255 (1980); trade secrets, Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984); right of access to property, e. g., PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980); Kaiser Aetna, supra; right to affix on structures, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); right to transfer property by devise or intestacy, e. g., Hodel v. Irving, 481 U.S. 704 (1987); creation of an easement, Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); right to build or improve, Lucas, supra; liens on real property, Armstrong v. United States, 364 U.S. 40 (1960); right to mine coal, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); right to sell personal property, Andrus v. Allard, 444 U.S. 51 (1979); and the right to extract mineral deposits, Goldblatt v. Hempstead, 369 U.S. 590 (1962); United States *542 v. Central Eureka Mining Co., 357 U.S. 155 (1958). The regulations in the cited cases were challenged as being so excessive as to destroy, or take, a specific property interest. The plurality's opinion disregards this requirement and, by removing this constant characteristic from takings analysis, would expand an already difficult and uncertain rule to a vast category of cases not deemed, in our law, to implicate the Takings Clause. The difficulties in determining whether there is a taking or a regulation even where a property right or interest is identified ought to counsel against extending the regulatory takings doctrine to cases lacking this specificity. The existence of at least this outer boundary for application of the regulatory takings rule provides some necessary predictability for governmental entities. Our definition of a taking, after all, is binding on all of the States as well as the Federal Government. The plurality opinion would throw one of the most difficult and litigated areas of the law into confusion, subjecting States and municipalities to the potential of new and unforeseen claims in vast amounts. The existing category of cases involving specific property interests ought not to be obliterated by extending regulatory takings analysis to the amorphous class of cases embraced by the plurality's opinion today. True, the burden imposed by the Coal Act may be just as great if the Government had appropriated one of Eastern's plants, but the mechanism by which the Government injures Eastern is so unlike the act of taking specific property that it is incongruous to call the Coal Act a taking, even as that concept has been expanded by the regulatory takings principle. In the terminology of our regulatory takings analysis, the character of the governmental action renders the Coal Act not a taking of property. While the usual taking occurs when the government physically acquires property for itself, e. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), our regulatory takings analysis recognizes a taking may occur when property is not appropriated by the government *543 or is transferred to other private parties. See, e. g., United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982) ("[O]ur cases show that takings analysis is not necessarily limited to outright acquisitions by the government for itself"); Loretto, supra (transfer of physical space from landlords to cable companies). As the range of governmental conduct subjected to takings analysis has expanded, however, we have been careful not to lose sight of the importance of identifying the property allegedly taken, lest all governmental action be subjected to examination under the constitutional prohibition against taking without just compensation, with the attendant potential for money damages. We have asked how the challenged governmental action is implemented with particular emphasis on the extent to which a specific property right is affected. See id., at 432 (physical invasion "is a government action of such a unique character that it is a taking without regard to other factors"); Hodel, supra, at 715-716 (declaring a law, which otherwise would not be a taking because of its insignificant economic impact, a taking because the character of the governmental action destroyed the right to pass property to one's heirs, a right which "has been part of the Anglo-American legal system since feudal times"); Penn Central, supra, at 124 ("A `taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good" (citation omitted)). The Coal Act neither targets a specific property interest nor depends upon any particular property for the operation of its statutory mechanisms. The liability imposed on Eastern no doubt will reduce its net worth and its total value, but this can be said of any law which has an adverse economic effect. The circumstance that the statute does not take money for the Government but instead makes it payable to third persons is not a factor I rely upon to show the lack of a taking. *544 While there are instances where the Government's selfenrichment may make it all the more evident a taking has occurred, e. g., Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980); United States v. Causby, 328 U.S. 256 (1946), the Government ought not to have the capacity to give itself immunity from a takings claim by the device of requiring the transfer of property from one private owner directly to another. Cf. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). At the same time, the Government's imposition of an obligation between private parties, or destruction of an existing obligation, must relate to a specific property interest to implicate the Takings Clause. For example, in United States v. Security Industrial Bank, we confronted a statute which was alleged to destroy an existing creditor's lien in certain chattels to the benefit of the debtor. We acknowledged that, given the nature of the property interest at stake, which resembled a contractual obligation, the takings challenge "fits but awkwardly into the analytic framework" of our regulatory takings analysis. 459 U.S., at 75. We decided the analysis could apply because the property interest was a "traditional property interes[t]," though in the end the statute was found inapplicable to the lien at issue. In so holding, we relied on Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), which invalidated the Frazier-Lemke Farm-Mortgage Act, because it interfered with mortgages on farms and thus worked a "`taking of substantive rights in specific property acquired by the Bank prior to' " the Act. 459 U.S., at 77 (quoting Radford, supra, at 590, 601). Unlike the statutes at issue in Security Industrial Bank and Radford, the Coal Act does not affect an obligation relating to a specific property interest. If the plurality is adopting its novel and expansive concept of a taking in order to avoid making a normative judgment about the Coal Act, it fails in the attempt; for it must make the normative judgment in all events. See, e. g., ante, at 537 ("[T]he governmental action implicates fundamental principles *545 of fairness"). The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions. See, e. g., Agins v. City of Tiburon, 447 U. S., at 260 (zoning constitutes a taking if it does not "substantially advance legitimate state interests"). This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act. The Clause operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge. The Clause presupposes what the government intends to do is otherwise constitutional: "As its language indicates, and as the Court has frequently noted, [the Takings Clause] does not prohibit the taking of private property, but instead places a condition on the exercise of that power. This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314-315 (1987) (emphasis and citations omitted). Given that the constitutionality of the Coal Act appears to turn on the legitimacy of Congress' judgment rather than on the availability of compensation, see ante, at 521 ("[I]n a case such as this one, it cannot be said that monetary relief against the Government is an available remedy"), the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause. It should be acknowledged that there are passages in some of our cases on the imposition of retroactive liability for an employer's withdrawal from a pension plan which might give some support to the plurality's discussion of the Takings Clause. See Connolly v. Pension Benefit Guaranty Corpo- *546 ration, 475 U.S. 211, 223 (1986); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 641 (1993). In Connolly, the Court said the definition of a taking was not controlled by "any set formula," but was dependent "on ad hoc, factual inquiries into the circumstances of each particular case." 475 U.S., at 224. The Court then applied the three-factor regulatory takings analysis set forth in Penn Central, which examines the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 475 U.S., at 225. This analysis did not result in a finding of a taking. The Court, moreover, prefaced the entire takings discussion with the admonition it would be surprising to discover that there had been a taking in the instance where a due process attack had been rejected. See id., at 223; see also Concrete Pipe, supra, at 641 ("Given that [the] due process arguments are unavailing, `it would be surprising indeed to discover' the challenged statute nonetheless violating the Takings Clause") (quoting Connolly, supra, at 223). At best, Connolly is equivocal on the question whether we should apply the regulatory takings analysis to instances like the one now before us. My reading of Connolly, and Concrete Pipe, is that we should proceed first to general due process principles, reserving takings analysis for cases where the governmental action is otherwise permissible. See Connolly, supra, at 224 ("[H]ere, the United States has taken nothing for its own use, and only has nullified a contractual provision limiting liability by imposing an additional obligation that is otherwise within the power of Congress to impose"); see also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 94, n. 39 (1978) (upholding on due process grounds the Price-Anderson Act, 42 U.S. C. § 2210 (1970 ed., Supp. V), which placed a cap on civil liability for nuclear accidents, but declining to address petitioner's request that the Act be declared a taking because compensation would be available under the Tucker Act, 28 U.S. C. § 1491(a)(1) (1976 *547 ed.)). These authorities confirm my view that the case is controlled not by the Takings Clause but by well-settled due process principles respecting retroactive laws. Given my view that the takings analysis is inapplicable in this case, it is unnecessary to comment upon the plurality's effort to resolve a jurisdictional question despite little briefing by the parties on a point which has divided the Courts of Appeals. II When the constitutionality of the Coal Act is tested under the Due Process Clause, it must be invalidated. Accepted principles forbidding retroactive legislation of this type are sufficient to dispose of the case. Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects. As today's plurality opinion notes, for centuries our law has harbored a singular distrust of retroactive statutes. Ante, at 532-533. In the words of Chancellor Kent: "A retroactive statute would partake in its character of the mischiefs of an ex post facto law. . . ; and in every other case relating to contracts or property, it would be against every sound principle." 1 J. Kent, Commentaries on American Law *455; see also ibid. (rule against retroactive application of statutes to be "founded not only in English law, but on the principles of general jurisprudence"). Justice Story reached a similar conclusion: "Retrospective laws are, indeed, generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact." 2 J. Story, Commentaries on the Constitution § 1398 (5th ed. 1891). The Court's due process jurisprudence reflects this distrust. For example, in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976), the Court held due process requires an inquiry into whether in enacting the retroactive law the legislature acted in an arbitrary and irrational way. Even though prospective economic legislation carries with it *548 the presumption of constitutionality, "[i]t does not follow . . . that what Congress can legislate prospectively it can legislate retrospectively. The retrospective aspects of [economic] legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former." Id., at 16-17. We have repeated this formulation in numerous recent decisions and given serious consideration to retroactivity-based due process challenges, all without questioning the validity of the underlying due process principle. United States v. Carlton, 512 U.S. 26, 31 (1994); Concrete Pipe, supra, at 636-641; General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992); United States v. Sperry Corp., 493 U.S. 52, 64 (1989); United States v. Hemme, 476 U.S. 558, 567-572 (1986); Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U.S. 717, 729-730 (1984). These decisions treat due process challenges based on the retroactive character of the statutes in question as serious and meritorious, thus confirming the vitality of our legal tradition's disfavor of retroactive economic legislation. Indeed, it is no accident that the primary retroactivity precedents upon which today's plurality opinion relies in its takings analysis were grounded in due process. Ante, at 524-528 (citing Turner Elkhorn, R. A. Gray, and Concrete Pipe ). These cases reflect our recognition that retroactive lawmaking is a particular concern for the courts because of the legislative "tempt[ation] to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf v. USI Film Products, 511 U.S. 244, 266 (1994); see also Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroactive law "may be passed with an exact knowledge of who will benefit from it"). If retroactive laws change the legal consequences of transactions long closed, the change can destroy the reasonable certainty and security which are the very objects of property ownership. *549 As a consequence, due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity. Groups targeted by retroactive laws, were they to be denied all protection, would have a justified fear that a government once formed to protect expectations now can destroy them. Both stability of investment and confidence in the constitutional system, then, are secured by due process restrictions against severe retroactive legislation. The case before us represents one of the rare instances where the Legislature has exceeded the limits imposed by due process. The plurality opinion demonstrates in convincing fashion that the remedy created by the Coal Act bears no legitimate relation to the interest which the Government asserts in support of the statute. Ante, at 529-537. In our tradition, the degree of retroactive effect is a significant determinant in the constitutionality of a statute. United States v. Carlton, supra, at 32; United States v. Darusmont, 449 U.S. 292, 296-297 (1981) (per curiam); see also Dunbar v. Boston & P. R. Corp., 181 Mass. 383, 386, 63 N.E. 916, 917 (1902) (Holmes, C. J.). As the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope. Ante, at 532. While we have upheld the imposition of liability on former employers based on past employment relationships, the statutes at issue were remedial, designed to impose an "actual, measurable cost of [the employer's] business" which the employer had been able to avoid in the past. Turner Elkhorn, supra, at 19; accord, Concrete Pipe, 508 U. S., at 638; Romein, supra, at 191-192; R. A. Gray, supra, at 733-734. As Chancellor Kent noted: "Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights." 1 Kent, Commentaries on American Law, at *455—*456. The Coal Act, however, does not serve *550 this purpose. Eastern was once in the coal business and employed many of the beneficiaries, but it was not responsible for their expectation of lifetime health benefits or for the perilous financial condition of the 1950 and 1974 plans which put the benefits in jeopardy. As the plurality opinion discusses in detail, the expectation was created by promises and agreements made long after Eastern left the coal business. Eastern was not responsible for the resulting chaos in the funding mechanism caused by other coal companies leaving the framework of the National Bituminous Coal Wage Agreement. Ante, at 535-536. This case is far outside the bounds of retroactivity permissible under our law. Finding a due process violation in this case is consistent with the principle that "under the deferential standard of review applied in substantive due process challenges to economic legislation there is no need for mathematical precision in the fit between justification and means." Concrete Pipe, supra, at 639 (citing Turner Elkhorn, 428 U. S.,at 19). Statutes may be invalidated on due process grounds only under the most egregious of circumstances. This case represents one of the rare instances in which even such a permissive standard has been violated. Application of the Coal Act to Eastern would violate the proper bounds of settled due process principles, and I concur in the plurality's conclusion that the judgment of the Court of Appeals must be reversed.

JUSTICE O'CONNOR'S opinion correctly concludes that the Coal Act's imposition of retroactive liability on petitioner violates the Takings Clause. I write separately to emphasize that the Ex Post Facto Clause of the Constitution, Art. I, 9, cl. 3, even more clearly reflects the principle that "[r]etrospective laws are, indeed, generally unjust." 2 J. Story, Commentaries on the Constitution 1398, p. 272 (5th ed. 1891). Since however, this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation, which in Calder was *539 principally justified because a contrary interpretation would render the Takings Clause unnecessary. See In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. Today's case, however, does present an unconstitutional taking, and I join Justice O'CONNOR's well-reasoned opinion in full. Justice Kennedy, concurring in the judgment and dissenting in part. The plurality's careful assessment of the history and purpose of the statute in question demonstrates the necessity to hold it arbitrary and beyond the legitimate authority of the Government to enact. In my view, which is in full accord with many of the plurality's conclusions, the relevant portions of the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 U.S. C. 9701 et seq. (1994 ed. and Supp. II), must be invalidated as contrary to essential due process principles, without regard to the Takings Clause of the Fifth Amendment. I concur in the judgment holding the Coal Act unconstitutional but disagree with the plurality's Takings Clause analysis, which, it is submitted, is incorrect and quite unnecessary for decision of the case. I must record my respectful dissent on this issue. I The final Clause of the Fifth Amendment states: "[N]or shall private property be taken for public use, without just compensation." U. S. Const., Amdt. 5. The provision is known as the Takings Clause. The concept of a taking under the Clause has become a term of art, and my discussion begins here. *540 Our cases do not support the plurality's conclusion that the Coal Act takes property. The Coal Act imposes a staggering financial burden on the petitioner, Eastern Enterprises, but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest. The Coal Act does not appropriate, transfer, or encumber an estate in land (e. g., a lien on a particular piece of property), a valuable interest in an intangible (e. g., intellectual property), or even a bank account or accrued interest. The law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so. To the extent it affects property interests, it does so in a manner similar to many laws; but until today, none were thought to constitute takings. To call this sort of governmental action a taking as a matter of constitutional interpretation is both imprecise and, with all due respect, unwise. As the role of Government expanded, our experience taught that a strict line between a taking and a regulation is difficult to discern or to maintain. This led the Court in Pennsylvania Coal to try to span the two concepts when specific property was subjected to what the owner alleged to be excessive regulation. "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." The quoted sentence is, of course, the genesis of the so-called regulatory takings doctrine. See ("Prior to Justice Holmes's exposition in Pennsylvania Coal it was generally thought that the Takings Clause reached only a `direct appropriation' of property or the functional equivalent of a `practical ouster of [the owner's] possession' " (citations omitted)). Without denigrating the importance the *541 regulatory takings concept has assumed in our law, it is fair to say it has proved difficult to explain in theory and to implement in practice. Cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law. See Penn Transp. ; Kaiser Until today, however, one constant limitation has been that in all of the cases where the regulatory taking analysis has been employed, a specific property right or interest has been at stake. After the decision in Pennsylvania Coal we confronted cases where specific and identified properties or property rights were alleged to come within the regulatory takings prohibition: air rights for high-rise buildings, Penn zoning on parcels of real property, e. g., MacDonald, Sommer & ; ; trade secrets, ; right of access to property, e. g., PruneYard Shopping ; Kaiser right to affix on structures, ; right to transfer property by devise or intestacy, e. g., ; creation of an easement, ; ; right to build or improve, liens on real property, ; right to mine coal, Keystone Bituminous Coal ; right to sell personal property, ; and the right to extract mineral deposits, ; United States *542 v. Eureka Mining Co., The regulations in the cited cases were challenged as being so excessive as to destroy, or take, a specific property interest. The plurality's opinion disregards this requirement and, by removing this constant characteristic from takings analysis, would expand an already difficult and uncertain rule to a vast category of cases not deemed, in our law, to implicate the Takings Clause. The difficulties in determining whether there is a taking or a regulation even where a property right or interest is identified ought to counsel against extending the regulatory takings doctrine to cases lacking this specificity. The existence of at least this outer boundary for application of the regulatory takings rule provides some necessary predictability for governmental entities. Our definition of a taking, after all, is binding on all of the States as well as the Federal Government. The plurality opinion would throw one of the most difficult and litigated areas of the law into confusion, subjecting States and municipalities to the potential of new and unforeseen claims in vast amounts. The existing category of cases involving specific property interests ought not to be obliterated by extending regulatory takings analysis to the amorphous class of cases embraced by the plurality's opinion today. True, the burden imposed by the Coal Act may be just as great if the Government had appropriated one of Eastern's plants, but the mechanism by which the Government injures Eastern is so unlike the act of taking specific property that it is incongruous to call the Coal Act a taking, even as that concept has been expanded by the regulatory takings principle. In the terminology of our regulatory takings analysis, the character of the governmental action renders the Coal Act not a taking of property. While the usual taking occurs when the government physically acquires property for itself, e. g., Chicago, B. & Q. R. our regulatory takings analysis recognizes a taking may occur when property is not appropriated by the government *543 or is transferred to other private parties. See, e. g., United ; As the range of governmental conduct subjected to takings analysis has expanded, however, we have been careful not to lose sight of the importance of identifying the property allegedly taken, lest all governmental action be subjected to examination under the constitutional prohibition against taking without just compensation, with the attendant potential for money damages. We have asked how the challenged governmental action is implemented with particular emphasis on the extent to which a specific property right is affected. See ; (declaring a law, which otherwise would not be a taking because of its insignificant economic impact, a taking because the character of the governmental action destroyed the right to pass property to one's heirs, a right which "has been part of the Anglo-American legal system since feudal times"); Penn The Coal Act neither targets a specific property interest nor depends upon any particular property for the operation of its statutory mechanisms. The liability imposed on Eastern no doubt will reduce its net worth and its total value, but this can be said of any law which has an adverse economic effect. The circumstance that the statute does not take money for the Government but instead makes it payable to third persons is not a factor I rely upon to show the lack of a taking. *544 While there are instances where the Government's selfenrichment may make it all the more evident a taking has occurred, e. g., Webb's Fabulous Pharmacies, ; United the Government ought not to have the capacity to give itself immunity from a takings claim by the device of requiring the transfer of property from one private owner directly to another. Cf. Hawaii Housing At the same time, the Government's imposition of an obligation between private parties, or destruction of an existing obligation, must relate to a specific property interest to implicate the Takings Clause. For example, in United we confronted a statute which was alleged to destroy an existing creditor's lien in certain chattels to the benefit of the debtor. We acknowledged that, given the nature of the property interest at stake, which resembled a contractual obligation, the takings challenge "fits but awkwardly into the analytic framework" of our regulatory takings analysis. We decided the analysis could apply because the property interest was a "traditional property interes[t]," though in the end the statute was found inapplicable to the lien at issue. In so holding, we relied on Louisville Joint Stock Land which invalidated the Frazier-Lemke Farm-Mortgage Act, because it interfered with mortgages on farms and thus worked a "`taking of substantive rights in specific property acquired by the Bank prior to' " the (quoting ). Unlike the statutes at issue in Security Industrial Bank and the Coal Act does not affect an obligation relating to a specific property interest. If the plurality is adopting its novel and expansive concept of a taking in order to avoid making a normative judgment about the Coal Act, it fails in the attempt; for it must make the normative judgment in all events. See, e. g., ante, at 537 ("[T]he governmental action implicates fundamental principles *545 of fairness"). The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions. See, e. g., This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act. The Clause operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge. The Clause presupposes what the government intends to do is otherwise constitutional: "As its language indicates, and as the Court has frequently noted, [the Takings Clause] does not prohibit the taking of private property, but instead places a condition on the exercise of that power. This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." First English Evangelical Lutheran Church of Given that the constitutionality of the Coal Act appears to turn on the legitimacy of Congress' judgment rather than on the availability of compensation, see ante, at 521 ("[I]n a case such as this one, it cannot be said that monetary relief against the Government is an available remedy"), the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause. It should be acknowledged that there are passages in some of our cases on the imposition of retroactive liability for an employer's withdrawal from a pension plan which might give some support to the plurality's discussion of the Takings Clause. See ; Concrete & Products of Cal., In the Court said the definition of a taking was not controlled by "any set formula," but was dependent "on ad hoc, factual inquiries into the circumstances of each particular case." The Court then applied the three-factor regulatory takings analysis set forth in Penn which examines the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental This analysis did not result in a finding of a taking. The Court, moreover, prefaced the entire takings discussion with the admonition it would be surprising to discover that there had been a taking in the instance where a due process attack had been rejected. See at ; see also Concrete at (quoting at ). At best, is equivocal on the question whether we should apply the regulatory takings analysis to instances like the one now before us. My reading of and Concrete is that we should proceed first to general due process principles, reserving takings analysis for cases where the governmental action is otherwise permissible. See ; see also Duke Power (upholding on due process grounds the Price-Anderson Act, 42 U.S. C. 2210 (1970 ed., Supp. V), which placed a cap on civil liability for nuclear accidents, but declining to address petitioner's request that the Act be declared a taking because compensation would be available under the Tucker Act, 28 U.S. C. 1491(a)(1) (1976 *547 ed.)). These authorities confirm my view that the case is controlled not by the Takings Clause but by well-settled due process principles respecting retroactive laws. Given my view that the takings analysis is inapplicable in this case, it is unnecessary to comment upon the plurality's effort to resolve a jurisdictional question despite little briefing by the parties on a point which has divided the Courts of Appeals. II When the constitutionality of the Coal Act is tested under the Due Process Clause, it must be invalidated. Accepted principles forbidding retroactive legislation of this type are sufficient to dispose of the case. Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects. As today's plurality opinion notes, for centuries our law has harbored a singular distrust of retroactive statutes. Ante, at 532-533. In the words of Chancellor Kent: "A retroactive statute would partake in its character of the mischiefs of an ex post facto law. ; and in every other case relating to contracts or property, it would be against every sound principle." 1 J. Kent, Commentaries on American Law *455; see also Justice Story reached a similar conclusion: "Retrospective laws are, indeed, generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact." 2 J. Story, Commentaries on the Constitution 1398 (5th ed. 1891). The Court's due process jurisprudence reflects this distrust. For example, in the Court held due process requires an inquiry into whether in enacting the retroactive law the legislature acted in an arbitrary and irrational way. Even though prospective economic legislation carries with it *548 the presumption of constitutionality, "[i]t does not follow that what Congress can legislate prospectively it can legislate retrospectively. The retrospective aspects of [economic] legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former." We have repeated this formulation in numerous recent decisions and given serious consideration to retroactivity-based due process challenges, all without questioning the validity of the underlying due process principle. United ; Concrete at 636-; General Motors ; United ; United ; Pension Benefit Guaranty These decisions treat due process challenges based on the retroactive character of the statutes in question as serious and meritorious, thus confirming the vitality of our legal tradition's disfavor of retroactive economic legislation. Indeed, it is no accident that the primary retroactivity precedents upon which today's plurality opinion relies in its takings analysis were grounded in due process. Ante, at 524-528 (citing Turner R. A. and Concrete ). These cases reflect our recognition that retroactive lawmaking is a particular concern for the courts because of the legislative "tempt[ation] to use retroactive legislation as a means of retribution against unpopular groups or individuals." ; see also Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, If retroactive laws change the legal consequences of transactions long closed, the change can destroy the reasonable certainty and security which are the very objects of property ownership. *549 As a consequence, due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity. Groups targeted by retroactive laws, were they to be denied all protection, would have a justified fear that a government once formed to protect expectations now can destroy them. Both stability of investment and confidence in the constitutional system, then, are secured by due process restrictions against severe retroactive legislation. The case before us represents one of the rare instances where the Legislature has exceeded the limits imposed by due process. The plurality opinion demonstrates in convincing fashion that the remedy created by the Coal Act bears no legitimate relation to the interest which the Government asserts in support of the statute. Ante, at 529-537. In our tradition, the degree of retroactive effect is a significant determinant in the constitutionality of a statute. United ; United ; see also As the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope. Ante, at 532. While we have upheld the imposition of liability on former employers based on past employment relationships, the statutes at issue were remedial, designed to impose an "actual, measurable cost of [the employer's] business" which the employer had been able to avoid in the past. Turner ; accord, Concrete ; at -192; R. A. As Chancellor Kent noted: "Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights." 1 Kent, Commentaries on American Law, at *455—*456. The Coal Act, however, does not serve *550 this purpose. Eastern was once in the coal business and employed many of the beneficiaries, but it was not responsible for their expectation of lifetime health benefits or for the perilous financial condition of the 1950 and 1974 plans which put the benefits in jeopardy. As the plurality opinion discusses in detail, the expectation was created by promises and agreements made long after Eastern left the coal business. Eastern was not responsible for the resulting chaos in the funding mechanism caused by other coal companies leaving the framework of the National Bituminous Coal Wage Agreement. Ante, at 535-536. This case is far outside the bounds of retroactivity permissible under our law. Finding a due process violation in this case is consistent with the principle that "under the deferential standard of review applied in substantive due process challenges to economic legislation there is no need for mathematical precision in the fit between justification and means." Concrete at 639 (citing Turner 428 U. S.,). Statutes may be invalidated on due process grounds only under the most egregious of circumstances. This case represents one of the rare instances in which even such a permissive standard has been violated. Application of the Coal Act to Eastern would violate the proper bounds of settled due process principles, and I concur in the plurality's conclusion that the judgment of the Court of Appeals must be reversed.

Justice Stevens

dissenting

Carcieri v. Salazar

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

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

2008-023

Congress has used the term “Indian” in the Indian Reorganization Act of 1934 to describe those individuals who are entitled to special protections and benefits under federal Indian law. The Act specifies that benefits shall be available to individuals who qualify as Indian either as a result of blood quantum or as descendants of members of “any recognized Indian tribe now under Federal jurisdic tion.” 25 U.S. C. §479. In contesting the Secretary of the Interior’s acquisition of trust land for the Narragansett Tribe of Rhode Island, the parties have focused on the meaning of “now” in the Act’s definition of “Indian.” Yet to my mind, whether “now” means 1934 (as the Court holds) or the present time (as respondents would have it) sheds no light on the question whether the Secretary’s actions on behalf of the Narragansett were permitted under the statute. The plain text of the Act clearly authorizes the Secretary to take land into trust for Indian tribes as well as individual Indians, and it places no temporal limitation on the definition of “Indian tribe.”1 Because the Narra —————— 1 In 25 U.S. C. §479, Congress defined both “Indian” and “tribe.” Section 479 states, in relevant part: 2 CARCIERI v. SALAZAR STEVENS, J., dissenting gansett Tribe is an Indian tribe within the meaning of the Act, I would affirm the judgment of the Court of Appeals. I This case involves a challenge to the Secretary of the Interior’s acquisition of a 31-acre parcel of land in Charlestown, Rhode Island, to be held in trust for the Narragansett Tribe.2 That Tribe has existed as a continu ous political entity since the early 17th century. Although it was once one of the most powerful tribes in New Eng land, a series of wars, epidemics, and difficult relations with the State of Rhode Island sharply reduced the Tribe’s ancestral landholdings. Two blows, delivered centuries apart, exacted a particu larly high toll on the Tribe. First, in 1675, King Philip’s War essentially destroyed the Tribe, forcing it to accept the Crown as sovereign and to submit to the guardianship of the Colony of Rhode Island. Then, in 1880, the State of Rhode Island passed a “detribalization” law that abolished tribal authority, ended the State’s guardianship of the —————— “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. . . . The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Notably the word “now,” which is used to define one of the categories of Indians, does not appear in the definition of “tribe.” 2 In 1991, the Narragansett Tribe purchased the 31-acre parcel in fee simple from a private developer. In 1998, the Bureau of Indian Affairs notified the State of the Secretary’s decision to take the land into unreserved trust for the Tribe. The Tribe “acquired [the land] for the express purpose of building much needed low-income Indian Housing via a contract between the Narragansett Indian Wetuomuck Housing Authority (NIWHA) and the Department of Housing and Urban Devel opment (HUD).” App. 46a. Cite as: 555 U. S. ____ (2009) 3 STEVENS, J., dissenting Tribe, and attempted to sell all tribal lands. The Narra gansett originally assented to detribalization and ceded all but two acres of its ancestral land. In return, the Tribe received $5,000. See Memorandum from the Deputy Assistant Secretary-Indian Affairs (Operations) to Assis tant Secretary-Indian Affairs (Operations) 4 (July 19, 1982) (Recommendation for Acknowledgment). Recognizing that its consent to detribalization was a mistake, the Tribe embarked on a century-long campaign to recoup its losses.3 Obtaining federal recognition was critical to this effort. The Secretary officially recognized the Narragansett as an Indian tribe in 1983, Final Deter mination for Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177, and with that recognition the Tribe qualified for the bundle of fed eral benefits established in the Indian Reorganization Act of 1934 (IRA or Act),4 25 U.S. C. §461 et seq. The Tribe’s attempt to exercise one of those rights, the ability to peti tion the Secretary to take land into trust for the Tribe’s benefit, is now vigorously contested in this litigation. II The Secretary’s trust authority is located in 25 U.S. C. —————— 3 Indeed, this litigation stems in part from the Tribe’s suit against (and subsequent settlement with) Rhode Island and private landowners on the ground that the 1880 sale violated the Indian Non-Intercourse Act of June 30, 1834, ch. 161, §12, 4 Stat. 730 (25 U.S. C. §177), which prohibited sales of tribal land without “treaty or convention entered into pursuant to the Constitution.” 4 The IRA was the cornerstone of the Indian New Deal. “The intent and purpose of the [IRA] was ‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a cen tury of oppression and paternalism.’ ” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)). See generally F. Cohen, Handbook of Federal Indian Law §1.05 (2005) (hereinafter Cohen); G. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reor ganization Act, 1934–45 (1980). 4 CARCIERI v. SALAZAR STEVENS, J., dissenting §465. That provision grants the Secretary power to take “in trust for [an] Indian tribe or individual Indian” “any interest in lands . . . for the purpose of providing land for Indians.”5 The Act’s language could not be clearer: To effectuate the Act’s broad mandate to revitalize tribal development and cultural self-determination, the Secre tary can take land into trust for a tribe or he can take land into trust for an individual Indian. Though Congress outlined the Secretary’s trust author ity in §465, it specified which entities would be considered “tribes” and which individuals would qualify as “Indian” in §479. An individual Indian, §479 tells us, “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” as well as “all other persons of one-half or more Indian blood.” A tribe, §479 goes on to state, “shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Because federal recognition is generally required before a tribe can receive federal benefits, the Secretary has interpreted this defini tion of “tribe” to refer only to recognized tribes. See 25 CFR §83.2 (2008) (stating that recognition “is a prerequi site to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes”); §151.2 (defining “tribe” for the purposes —————— 5 Section 465 reads more fully: “The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assign ment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. . . . . . “Title to any lands or rights acquired pursuant to this Act . . . shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.” Cite as: 555 U. S. ____ (2009) 5 STEVENS, J., dissenting of land acquisition to mean “any Indian tribe, band, na tion, pueblo, community, rancheria, colony, or other group of Indians, . . . which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs”).6 Having separate definitions for “Indian” and “tribe” is essential for the administration of IRA benefits. The statute reflects Congress’ intent to extend certain benefits to individual Indians, e.g., 25 U.S. C. §471 (offering loans to Indian students for tuition at vocational and trade schools); §472 (granting hiring preferences to Indians seeking federal employment related to Indian affairs), while directing other benefits to tribes, e.g., §476 (allowing tribes to adopt constitutions and bylaws); §470 (giving loans to Indian-chartered corporations). Section 465, by giving the Secretary discretion to steer benefits to tribes and individuals alike, is therefore unique. But establishing this broad benefit scheme was undoubtedly intentional: The original draft of the IRA presented to Congress directed the Secretary to take land into trust only for entities such as tribes. Compare H. R. 7902, 73d Cong., 2d Sess., 30 (1934) (“Title to any land acquired pursuant to the provisions of this section shall be taken in the name of the United States in trust for the Indian tribe or community for whom the land is acquired” (emphasis added)), with 25 U.S. C. §465 (“Title to any lands or rights acquired pursuant to this Act . . . shall be —————— 6 The regulations that govern the tribal recognition process, 25 CFR §83 et seq. (2008), were promulgated pursuant to the President’s general mandate established in the early 1830’s to manage “all Indian affairs and . . . all matters arising out of Indian relations,” 25 U.S. C. §2, and to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs,” §9. Thus, contrary to the argument pressed by the Governor of Rhode Island before this Court, see Reply Brief for Petitioner Carcieri 9, the requirement that a tribe be federally recognized before it is eligible for trust land does not stem from the IRA. 6 CARCIERI v. SALAZAR STEVENS, J., dissenting taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired” (emphasis added)). The Secretary has long exercised his §465 trust author ity in accordance with this design. In the years immedi ately following the adoption of the IRA, the Solicitor of the Department of the Interior repeatedly advised that the Secretary could take land into trust for federally recog nized tribes and for individual Indians who qualified for federal benefits by lineage or blood quantum. For example, in 1937, when evaluating whether the Secretary could purchase approximately 2,100 acres of land for the Mole Lake Chippewa Indians of Wisconsin, the Solicitor instructed that the purchase could not be “completed until it is determined whether the beneficiary of the trust title should be designated as a band or whether the title should be taken for the individual Indi ans in the vicinity of Mole Lake who are of one half or more Indian blood.” Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758 (Feb. 8, 1937). Because the Mole Lake Chippewa was not yet recognized by the Federal Government as an Indian tribe, the Solici tor determined that the Secretary had two options: “Either the Department should provide recognition of this group, or title to the purchased land should be taken on behalf of the individuals who are of one half or more Indian blood.” Id., at 2763. The tribal trust and individual trust options were simi larly outlined in other post-1934 opinion letters, including those dealing with the Shoshone Indians of Nevada, the St. Croix Chippewa Indians of Wisconsin, and the Nahma and Beaver Island Indians of Michigan. See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Af fairs, 1917–1974, pp. 706–707, 724–725, 747–748 (1979). Unless and until a tribe was formally recognized by the Federal Government and therefore eligible for trust land, Cite as: 555 U. S. ____ (2009) 7 STEVENS, J., dissenting the Secretary would take land into trust for individual Indians who met the blood quantum threshold. Modern administrative practice has followed this well trodden path. Absent a specific statute recognizing a tribe and authorizing a trust land acquisition,7 the Secretary has exercised his trust authority—now governed by regu lations promulgated in 1980 after notice-and-comment rulemaking, 25 CFR §151 et seq.; 45 Fed. Reg. 62034—to acquire land for federally recognized Indian tribes like the Narragansett. The Grand Traverse Band of Ottowa and Chippewa Indians, although denied federal recognition in 1934 and 1943, see Dept. of Interior, Office of Federal Acknowledgement, Memorandum from Acting Deputy Commissioner to Assistant Secretary 4 (Oct. 3, 1979) (GTB–V001–D002), was the first tribe the Secretary rec ognized under the 1980 regulations, see 45 Fed. Reg. 19322. Since then, the Secretary has used his trust au thority to expand the Tribe’s land base. See, e.g., 49 Fed. Reg. 2025–2026 (1984) (setting aside a 12.5-acre parcel as reservation land for the Tribe’s exclusive use). The Tu —————— 7 Although Congress has passed specific statutes granting the Secre tary authority to take land into trust for certain tribes, it would be a mistake to conclude that the Secretary lacks residual authority to take land into trust under 25 U.S. C. §465 of the IRA. Some of these stat utes place explicit limits on the Secretary’s trust authority and can be properly read as establishing the outer limit of the Secretary’s trust authority with respect to the specified tribes. See, e.g., §1724(d) (au thorizing trust land for the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe of Maine, and the Penobscot Tribe of Maine). Other statutes, while identifying certain parcels the Secretary will take into trust for a tribe, do not purport to diminish the Secretary’s residual authority under §465. See, e.g., §1775c(a) (Mohegan Tribe); §1771d (Wampanoag Tribe); §1747(a) (Miccosukee Tribe). Indeed, the Secre tary has invoked his §465 authority to take additional land into trust for the Miccosukee Tribe despite the existence of a statute authorizing and directing him to acquire certain land for the Tribe. See Post- Argument En Banc Brief for National Congress of American Indians et al. as Amici Curiae 7 and App. 9 in No. 03–2647 (CA1). 8 CARCIERI v. SALAZAR STEVENS, J., dissenting nica-Biloxi Tribe of Louisiana has similarly benefited from administrative recognition, 46 Fed. Reg. 38411 (1981), followed by tribal trust acquisition. And in 2006, the Secretary took land into trust for the Snoqualmie Tribe which, although unrecognized as an Indian tribe in the 1950’s, regained federal recognition in 1999. See 71 Fed. Reg. 5067 (taking land into trust for the Tribe); 62 Fed. Reg. 45864 (1997) (recognizing the Snoqualmie as an Indian tribe). This brief history of §465 places the case before us into proper context. Federal recognition, regardless of when it is conferred, is the necessary condition that triggers a tribe’s eligibility to receive trust land. No party has dis puted that the Narragansett Tribe was properly recog nized as an Indian tribe in 1983. See 48 Fed. Reg. 6177. Indeed, given that the Tribe has a documented history that stretches back to 1614 and has met the rigorous criteria for administrative recognition, Recommendation for Acknowledgment 1, 7–18, it would be difficult to sus tain an objection to the Tribe’s status. With this in mind, and in light of the Secretary’s longstanding authority under the plain text of the IRA to acquire tribal trust land, it is perfectly clear that the Secretary’s land acquisition for the Narragansett was entirely proper. III Despite the clear text of the IRA and historical pedigree of the Secretary’s actions on behalf of the Narragansett, the majority holds that one word (“now”) nestled in one clause in one of §479’s several definitions demonstrates that the Secretary acted outside his statutory authority in this case. The consequences of the majority’s reading are both curious and harsh: curious because it turns “now” into the most important word in the IRA, limiting not only some individuals’ eligibility for federal benefits but also a tribe’s; harsh because it would result in the unsupportable Cite as: 555 U. S. ____ (2009) 9 STEVENS, J., dissenting conclusion that, despite its 1983 administrative recogni tion, the Narragansett Tribe is not an Indian tribe under the IRA. In the Court’s telling, when Congress granted the Secre tary power to acquire trust land “for the purpose of provid ing land for Indians,” 25 U.S. C. §465 (emphasis added), it meant to permit land acquisitions for those persons whose tribal membership qualify them as “Indian” as defined by §479. In other words, the argument runs, the Secretary can acquire trust land for “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” §479. This strained construction, advanced by petitioners, explains the majority’s laser-like focus on the meaning of “now”: If the Narragansett Tribe was not recognized or under federal jurisdiction in 1934, the Tribe’s members do not belong to an Indian tribe “now under Federal jurisdiction” and would therefore not be “Indians” under §465 by virtue of their tribal membership. Petitioners’ argument works only if one reads “Indians” (in the phrase in §465 “providing land for Indians”) to refer to individuals, not an Indian tribe. To petitioners, this reading is obvious; the alternative, they insist, would be “nonsensical.” Reply Brief for Petitioner State of Rhode Island 3. This they argue despite the clear evidence of Congress’ intent to provide the Secretary with the option of acquiring either tribal trusts or individual trusts in service of “providing land for Indians.” And they ignore unambiguous evidence that Congress used “Indian tribe” and “Indians” interchangeably in other parts of the IRA. See §475 (discussing “any claim or suit of any Indian tribe against the United States” in the first sentence and “any claim of such Indians against the United States” in the last sentence (emphasis added)). In any event, this much must be admitted: Without the benefit of context, a reasonable person could conclude that “Indians” refers to multiple individuals who each qualify 10 CARCIERI v. SALAZAR STEVENS, J., dissenting as “Indian” under the IRA. An equally reasonable person could also conclude that “Indians” is meant to refer to a collective, namely, an Indian tribe. Because “[t]he mean ing—or ambiguity—of certain words or phrases may only become evident when placed in context,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000), the proper course of action is to widen the interpretive lens and look to the rest of the statute for clarity. Doing so would lead to §465’s last sentence, which specifies that the Secretary is to hold land in trust “for the Indian tribe or individual Indian for which the land is acquired.” Put simply, in §465 Congress used the term “Indians” to refer both to tribes and individuals.8 The majority nevertheless dismisses this reading of the statute. The Court notes that even if the Secretary has authority to take land into trust for a tribe, it must be an “Indian tribe,” with §479’s definition of “Indian” determin ing a tribe’s eligibility. The statute’s definition of “tribe,” the majority goes on to state, itself makes reference to “Indian tribe.” Thus, the Court concludes, “[t]here simply is no legitimate way to circumvent the definition of ‘In dian’ in delineating the Secretary’s authority under §479.” Ante, at 13. The majority bypasses a straightforward explanation on its way to a circular one. Requiring that a tribe be an “Indian tribe” does not demand immediate reference to the definition of “Indian”; instead, it simply reflects the re quirement that the tribe in question be formally recog nized as an Indian tribe. As explained above, the Secre tary has limited benefits under federal Indian law— including the acquisition of trust land—to recognized —————— 8 The majority continues to insist, quite incorrectly, that Congress meant the term “Indians” in §465 to have the same meaning as the term “Indian” in §479. That the text of the statute tells a different story appears to be an inconvenience the Court would rather ignore. Cite as: 555 U. S. ____ (2009) 11 STEVENS, J., dissenting tribes. Recognition, then, is the central requirement for being considered an “Indian tribe” for purposes of the Act. If a tribe satisfies the stringent criteria established by the Secretary to qualify for federal recognition, including the requirement that the tribe prove that it “has existed as a community from historical times until the present,” 25 CFR §83.7(b) (2008), it is a fortiori an “Indian tribe” as a matter of law. The Narragansett Tribe is no different. In 1983, upon meeting the criteria for recognition, the Secretary gave notice that “the Narragansett Indian Tribe . . . exists as an Indian tribe.” 48 Fed. Reg. 6177 (emphasis added). How the Narragansett could be an Indian tribe in 1983 and yet not be an Indian tribe today is a proposition the majority cannot explain. The majority’s retort, that because “tribe” refers to “Indian,” the definition of “Indian” must control which groups can be considered a “tribe,” is entirely circular. Yes, the word “tribe” is defined in part by reference to “Indian tribe.” But the word “Indian” is also defined in part by reference to “Indian tribe.” Relying on one defini tion to provide content to the other is thus “completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The Governor of Rhode Island, for his part, adopts this circular logic and offers two examples of why reading the statute any other way would be implausible. He first argues that if §479’s definition of “Indian” does not deter mine a tribe’s eligibility, the Secretary would have author ity to take land into trust “for the benefit of any group that he deems, at his whim and fancy, to be an ‘Indian tribe.’ ” Reply Brief for Petitioner Carcieri 7. The Governor carica tures the Secretary’s discretion. This Court has long made clear that Congress—and therefore the Secretary—lacks constitutional authority to “bring a community or body of people within [federal jurisdiction] by arbitrarily calling 12 CARCIERI v. SALAZAR STEVENS, J., dissenting them an Indian tribe.” United States v. Sandoval, 231 U.S. 28, 46 (1913). The Governor’s next objection, that condoning the acquisition of trust land for the Narragan sett Tribe would allow the Secretary to acquire land for an Indian tribe that lacks Indians, is equally unpersuasive. As a general matter, to obtain federal recognition, a tribe must demonstrate that its “membership consists of indi viduals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” 25 CFR §83.7(e) (2008). If the Governor suspects that the Narragansett is not an Indian tribe because it may lack members who are blood quantum Indians, he should have challenged the Secretary’s decision to recognize the Tribe in 1983 when such an objection could have been properly received.9 —————— 9 The Department of the Interior found “a high degree of retention of [Narragansett] family lines” between 1880 and 1980, and remarked that “[t]he close intermarriage and stability of composition, plus the geographic stability of the group, reflect the maintenance of a socially distinct community.” Recommendation for Acknowledgment 10. It also noted that the Narragansett “require applicants for full voting mem bership to trace their Narragansett Indian bloodlines back to the ‘Detribalization Rolls of 1880–84.’ ” Id., at 16. The record in this case does not tell us how many members of the Narragansett currently qualify as “Indian” by meeting the individual blood quantum require ment. Indeed, it is possible that a significant number of the Narragan sett are blood quantum Indians. Accordingly, nothing the Court decides today prevents the Secretary from taking land into trust for those members of the Tribe who independently qualify as “Indian” under 25 U.S. C. §479. Although the record does not demonstrate how many members of the Narragansett qualify as blood quantum Indians, JUSTICE BREYER nevertheless assumes that no member of the Tribe is a blood quantum Indian. Ante, at 4 (concurring opinion). This assumption is misguided for two reasons. To start, the record’s silence on this matter is to be expected; the parties have consistently focused on the Secretary’s authority to take land into trust for the Tribe, not for individual mem bers of the Tribe. There is thus no legitimate basis for interpreting the lack of record evidence as affirmative proof that none of the Tribe’s Cite as: 555 U. S. ____ (2009) 13 STEVENS, J., dissenting In sum, petitioners’ arguments—and the Court’s conclu sion—are based on a misreading of the statute. “[N]ow,” the temporal limitation in the definition of “Indian,” only affects an individual’s ability to qualify for federal benefits under the IRA. If this case were about the Secretary’s decision to take land into trust for an individual who was incapable of proving her eligibility by lineage or blood quantum, I would have no trouble concluding that such an action was contrary to the IRA. But that is not the case before us. By taking land into trust for a validly recog nized Indian tribe, the Secretary acted well within his statutory authority.10 IV The Court today adopts a cramped reading of a statute Congress intended to be “sweeping” in scope. Morton v. Mancari, 417 U.S. 535, 542 (1974). In so doing, the Court ignores the “principle deeply rooted in [our] Indian juris prudence” that “ ‘statutes are to be construed liberally in favor of the Indians.’ ” County of Yakima v. Confederated —————— members are “Indian.” Second, neither the statute nor the relevant regulations mandate that a tribe have a threshold amount of blood quantum Indians as members in order to receive trust land. JUSTICE BREYER’s unwarranted assumption about the Narragansett’s member ship, even if true, would therefore also be irrelevant to whether the Secretary’s actions were proper. 10 Petitioners advance the additional argument that the Secretary lacks authority to take land into trust for the Narragansett because the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U.S. C. §1701 et seq., implicitly repealed the Secretary’s §465 trust authority as applied to lands in Rhode Island. This claim plainly fails. While the Tribe agreed to subject the 1,800 acres it obtained in the Settlement Act to the State’s civil and criminal laws, §1708(a), the 31-acre parcel of land at issue here was not part of the settlement lands. And, critically, nothing in the text of the Settlement Act suggests that Con- gress intended to prevent the Secretary from acquiring additional parcels of land in Rhode Island that would be exempt from the State’s jurisdiction. 14 CARCIERI v. SALAZAR STEVENS, J., dissenting Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 767–768 (1985)); see also Cohen §2.02[1], p. 119 (“The basic Indian law canons of construction require that trea ties, agreements, statutes, and executive orders be liber ally construed in favor of the Indians”). Given that the IRA plainly authorizes the Secretary to take land into trust for an Indian tribe, and in light of the Narragansett’s status as such, the Court’s decision can be best understood as protecting one sovereign (the State) from encroachment from another (the Tribe). Yet in mat ters of Indian law, the political branches have been en trusted to mark the proper boundaries between tribal and state jurisdiction. See U. S. Const., Art. I, §8, cl. 3; Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Worcester v. Georgia, 6 Pet. 515, 559 (1832). With the IRA, Congress drew the boundary in a manner that favors the Narragansett. I respectfully dissent

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

Justice Scalia

majority

Republic of Argentina v. NML Capital, Ltd.

https://www.courtlistener.com/opinion/2679202/republic-of-argentina-v-nml-capital-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/2679202/

2013-059

We must decide whether the Foreign Sovereign Immu- nities Act of 1976 (FSIA or Act), 28 U.S. C. §§1330, 1602 et seq., limits the scope of discovery available to a judg­ ment creditor in a federal postjudgment execution pro­ ceeding against a foreign sovereign. I. Background In 2001, petitioner, Republic of Argentina, defaulted on its external debt. In 2005 and 2010, it restructured most of that debt by offering creditors new securities (with less favorable terms) to swap out for the defaulted ones. Most bondholders went along. Respondent, NML Capital, Ltd. (NML), among others, did not. NML brought 11 actions against Argentina in the Southern District of New York to collect on its debt, and prevailed in every one.1 It is owed around $2.5 billion, —————— 1 The District Court’s jurisdiction rested on Argentina’s broad waiver of sovereign immunity memorialized in its bond indenture agreement, which states: “To the extent that [Argentina] or any of its revenues, assets or properties shall be entitled . . . to any immunity from suit . . . from attachment prior to judgment . . . from execution of a judgment or 2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court which Argentina has not paid. Having been unable to collect on its judgments from Argentina, NML has at­ tempted to execute them against Argentina’s property. That postjudgment litigation “has involved lengthy at­ tachment proceedings before the district court and multi­ ple appeals.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 203, and n. 2 (CA2 2012) (referring the reader to prior opinions “[f]or additional background on Argentina’s de­ fault and the resulting litigation”). Since 2003, NML has pursued discovery of Argentina’s property. In 2010, “ ‘[i]n order to locate Argentina’s assets and accounts, learn how Argentina moves its assets through New York and around the world, and accurately identify the places and times when those assets might be subject to attachment and execution (whether under [United States law] or the law of foreign jurisdictions),’ ” id., at 203 (quoting NML brief), NML served subpoenas on two nonparty banks, Bank of America (BOA) and Banco de la Nación Argentina (BNA), an Argentinian bank with a branch in New York City. For the most part, the two subpoenas target the same kinds of information: docu­ ments relating to accounts maintained by or on behalf of Argentina, documents identifying the opening and closing dates of Argentina’s accounts, current balances, transac­ tion histories, records of electronic fund transfers, debts owed by the bank to Argentina, transfers in and out of Argentina’s accounts, and information about transferors and transferees. Argentina, joined by BOA, moved to quash the BOA subpoena. NML moved to compel compliance but, before —————— from any other legal or judicial process or remedy, . . . [Argentina] has irrevocably agreed not to claim and has irrevocably waived such im­ munity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the [FSIA] to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment) . . . .” App. 106–107. Cite as: 573 U. S. ____ (2014) 3 Opinion of the Court the court ruled, agreed to narrow its subpoenas by exclud­ ing the names of some Argentine officials from the ini- tial electronic-fund-transfer message search. NML also agreed to treat as confidential any documents that the banks so designated. The District Court denied the motion to quash and granted the motions to compel. Approving the subpoenas in principle, it concluded that extraterritorial asset discov­ ery did not offend Argentina’s sovereign immunity, and it reaffirmed that it would serve as a “clearinghouse for information” in NML’s efforts to find and attach Argenti­ na’s assets. App. to Pet. for Cert. 31. But the court made clear that it expected the parties to negotiate further over specific production requests, which, the court said, must include “some reasonable definition of the information being sought.” Id., at 32. There was no point, for in­ stance, in “getting information about something that might lead to attachment in Argentina because that would be useless information,” since no Argentinian court would allow attachment. Ibid. “Thus, the district court . . . sought to limit the subpoenas to discovery that was rea­ sonably calculated to lead to attachable property.” 695 F.3d, at 204–205. NML and BOA later negotiated additional changes to the BOA subpoena. NML expressed its willingness to narrow its requests from BNA as well, but BNA neither engaged in negotiation nor complied with the subpoena. Only Argentina appealed, arguing that the court’s order transgressed the Foreign Sovereign Immunities Act be­ cause it permitted discovery of Argentina’s extraterritorial assets. The Second Circuit affirmed, holding that “be­ cause the Discovery Order involves discovery, not attach­ ment of sovereign property, and because it is directed at third-party banks, not at Argentina itself, Argentina’s sovereign immunity is not infringed.” Id., at 205. We granted certiorari. 571 U. S. ___ (2014). 4 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court II. Analysis A The rules governing discovery in postjudgment execu­ tion proceedings are quite permissive. Federal Rule of Civil Procedure 69(a)(2) states that, “[i]n aid of the judg­ ment or execution, the judgment creditor . . . may obtain discovery from any person—including the judgment debtor— as provided in the rules or by the procedure of the state where the court is located.” See 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure §3014, p. 160 (2d ed. 1997) (hereinafter Wright & Miller) (court “may use the discovery devices provided in [the federal rules] or may obtain discovery in the manner provided by the practice of the state in which the district court is held”). The general rule in the federal system is that, subject to the district court’s discretion, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. Rule Civ. Proc. 26(b)(1). And New York law entitles judgment creditors to discover “all matter relevant to the satisfac­ tion of [a] judgment,” N. Y. Civ. Prac. Law Ann. §5223 (West 1997), permitting “investigation [of] any person shown to have any light to shed on the subject of the judgment debtor’s assets or their whereabouts,” D. Siegel, New York Practice §509, p. 891 (5th ed. 2011). The meaning of those rules was much discussed at oral argument. What if the assets targeted by the discovery request are beyond the jurisdictional reach of the court to which the request is made? May the court nonetheless permit discovery so long as the judgment creditor shows that the assets are recoverable under the laws of the jurisdictions in which they reside, whether that be Florida or France? We need not take up those issues today, since Argentina has not put them in contention. In the Court of Appeals, Argentina’s only asserted ground for objection to Cite as: 573 U. S. ____ (2014) 5 Opinion of the Court the subpoenas was the Foreign Sovereign Immunities Act. See 695 F.3d, at 208 (“Argentina argues . . . that the normally broad scope of discovery in aid of execution is limited in this case by principles of sovereign immunity”). And Argentina’s petition for writ of certiorari asked us to decide only whether that Act “imposes [a] limit on a United States court’s authority to order blanket post-judgment execution discovery on the assets of a foreign state used for any activity anywhere in the world.” Pet. for Cert. 14. Plainly, then, this is not a case about the breadth of Rule 69(a)(2).2 We thus assume without deciding that, as the Government conceded at argument, Tr. of Oral Arg. 24, and as the Second Circuit concluded below, “in a run-of­ the-mill execution proceeding . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor’s assets located outside the United States.” 695 F.3d, at 208. The single, narrow question before us is whether the Foreign Sovereign Immunities Act specifies a different rule when the judgment debtor is a foreign state. B To understand the effect of the Act, one must know something about the regime it replaced. Foreign sovereign immunity is, and always has been, “a matter of grace and comity on the part of the United States, and not a re­ striction imposed by the Constitution.” Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983). Ac­ cordingly, this Court’s practice has been to “defe[r] to the decisions of the political branches” about whether and —————— 2 On one of the final pages of its reply brief, Argentina makes for the first time the assertion (which it does not develop, and for which it cites no authority) that the scope of Rule 69 discovery in aid of execution is limited to assets upon which a United States court can execute. Reply Brief 19. We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief. 6 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court when to exercise judicial power over foreign states. Ibid. For the better part of the last two centuries, the political branch making the determination was the Executive, which typically requested immunity in all suits against friendly foreign states. Id., at 486–487. But then, in 1952, the State Department embraced (in the so-called Tate Letter) the “restrictive” theory of sovereign immunity, which holds that immunity shields only a foreign sover­ eign’s public, noncommercial acts. Id., at 487, and n. 9. The Tate Letter “thr[ew] immunity determinations into some disarray,” since “political considerations sometimes led the Department to file suggestions of immunity in cases where immunity would not have been available under the restrictive theory.” Republic of Austria v. Alt­ mann, 541 U.S. 677, 690 (2004) (internal quotation marks omitted). Further muddling matters, when in particular cases the State Department did not suggest immunity, courts made immunity determinations “generally by refer­ ence to prior State Department decisions.” Verlinden, 461 U.S., at 487. Hence it was that “sovereign immunity decisions were [being] made in two different branches, subject to a variety of factors, sometimes including diplo­ matic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied.” Id., at 488. Congress abated the bedlam in 1976, replacing the old executive-driven, factor-intensive, loosely common-law­ based immunity regime with the Foreign Sovereign Im­ munities Act’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” Ibid. The key word there—which goes a long way toward deciding this case—is comprehensive. We have used that term often and advisedly to describe the Act’s sweep: “Congress established [in the FSIA] a com­ prehensive framework for resolving any claim of sovereign immunity.” Altman, 541 U.S., at 699. The Act “compre­ Cite as: 573 U. S. ____ (2014) 7 Opinion of the Court hensively regulat[es] the amenability of foreign nations to suit in the United States.” Verlinden, supra, at 493. This means that “[a]fter the enactment of the FSIA, the Act— and not the pre-existing common law—indisputably gov­ erns the determination of whether a foreign state is enti­ tled to sovereign immunity.” Samantar v. Yousuf, 560 U.S. 305, 313 (2010). As the Act itself instructs, “[c]laims of foreign states to immunity should henceforth be decided by courts . . . in conformity with the principles set forth in this [Act].” 28 U.S. C. §1602 (emphasis added). Thus, any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. Or it must fall. The text of the Act confers on foreign states two kinds of immunity. First and most significant, “a foreign state shall be immune from the jurisdiction of the courts of the United States . . . except as provided in sections 1605 to 1607.” §1604. That provision is of no help to Argentina here: A foreign state may waive jurisdictional immunity, §1605(a)(1), and in this case Argentina did so, see 695 F.3d, at 203. Consequently, the Act makes Argentina “liable in the same manner and to the same extent as a private individual under like circumstances.” §1606. The Act’s second immunity-conferring provision states that “the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execu­ tion except as provided in sections 1610 and 1611 of this chapter.” §1609. The exceptions to this immunity defense (we will call it “execution immunity”) are narrower. “The property in the United States of a foreign state” is subject to attachment, arrest, or execution if (1) it is “used for a commercial activity in the United States,” §1610(a), and (2) some other enumerated exception to immunity applies, such as the one allowing for waiver, see §1610(a)(1)–(7). The Act goes on to confer a more robust execution immu­ nity on designated international-organization property, 8 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court §1611(a), property of a foreign central bank, §1611(b)(1), and “property of a foreign state . . . [that] is, or is intended to be, used in connection with a military activity” and is either “of a military character” or “under the control of a military authority or defense agency,” §1611(b)(2). That is the last of the Act’s immunity-granting sections. There is no third provision forbidding or limiting discovery in aid of execution of a foreign-sovereign judgment debt­ or’s assets. Argentina concedes that no part of the Act “expressly address[es] [postjudgment] discovery.” Brief for Petitioner 22. Quite right. The Act speaks of discovery only once, in a subsection requiring courts to stay discov­ ery requests directed to the United States that would interfere with criminal or national-security matters, §1605(g)(1). And that section explicitly suspends certain Federal Rules of Civil Procedure when such a stay is entered, see §1605(g)(4). Elsewhere, it is clear when the Act’s provisions specifically applicable to suits against sovereigns displace their general federal-rule counter­ parts. See, e.g., §1608(d). Far from containing the “plain statement” necessary to preclude application of federal discovery rules, Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 539 (1987), the Act says not a word on the subject.3 Argentina would have us draw meaning from this si­ lence. Its argument has several parts. First, it asserts that, before and after the Tate Letter, the State Depart­ ment and American courts routinely accorded absolute execution immunity to foreign-state property. If a thing belonged to a foreign sovereign, then, no matter where it —————— 3 Argentina and the United States suggest that, under the terms of Rule 69 itself, the Act trumps the federal rules, since Rule 69(a)(1) states that “a federal statute governs to the extent it applies.” But, since the Act does not contain implicit discovery-immunity protections, it does not “apply” (in the relevant sense) at all. Cite as: 573 U. S. ____ (2014) 9 Opinion of the Court was found, it was immune from execution. And absolute immunity from execution necessarily entailed immunity from discovery in aid of execution. Second, by codifying execution immunity with only a small set of exceptions, Congress merely “partially lowered the previously uncon­ ditional barrier to post-judgment relief.” Brief for Peti­ tioner 29. Because the Act gives “no indication that it was authorizing courts to inquire into state property beyond the court’s limited enforcement authority,” ibid., Argen­ tina contends, discovery of assets that do not fall within an exception to execution immunity (plainly true of a foreign state’s extraterritorial assets) is forbidden. The argument founders at each step. To begin with, Argentina cites no case holding that, before the Act, a foreign state’s extraterritorial assets enjoyed absolute execution immunity in United States courts. No surprise there. Our courts generally lack authority in the first place to execute against property in other countries, so how could the question ever have arisen? See Wright & Miller §3013, at 156 (“[A] writ of execution . . . can be served anywhere within the state in which the district court is held”). More importantly, even if Argentina were right about the scope of the common-law execution­ immunity rule, then it would be obvious that the terms of §1609 execution immunity are narrower, since the text of that provision immunizes only foreign-state property “in the United States.” So even if Argentina were correct that §1609 execution immunity implies coextensive discovery­ in-aid-of-execution immunity, the latter would not shield from discovery a foreign sovereign’s extraterritorial assets. But what of foreign-state property that would enjoy execution immunity under the Act, such as Argentina’s diplomatic or military property? Argentina maintains that, if a judgment creditor could not ultimately execute a judgment against certain property, then it has no business pursuing discovery of information pertaining to that prop­ 10 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court erty. But the reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisdiction’s law. If, bizarrely, NML’s subpoenas had sought only “information that could not lead to executable assets in the United States or abroad,” then Argentina likely would be correct to say that the subpoenas were unenforceable—not because information about nonexecut­ able assets enjoys a penumbral “discovery immunity” under the Act, but because information that could not possibly lead to executable assets is simply not “relevant” to execution in the first place, Fed. Rule Civ. Proc. 26(b)(1); N. Y. Civ. Prac. Law Ann. §5223.4 But of course that is not what the subpoenas seek. They ask for infor­ mation about Argentina’s worldwide assets generally, so that NML can identify where Argentina may be holding property that is subject to execution. To be sure, that request is bound to turn up information about property that Argentina regards as immune. But NML may think the same property not immune. In which case, Argenti­ na’s self-serving legal assertion will not automatically prevail; the District Court will have to settle the matter. * * * Today’s decision leaves open what Argentina thinks is a gap in the statute. Could the 1976 Congress really have meant not to protect foreign states from postjudgment —————— 4 The dissent apparently agrees that the Act has nothing to say about the scope of postjudgment discovery of a foreign sovereign’s extraterri­ torial assets. It also apparently agrees that the rules limit discovery to matters relevant to execution. Our agreement ends there. The dissent goes on to assert that, unless a judgment creditor proves up front that all of the information it seeks is relevant to execution under the laws of all foreign jurisdictions, discovery of information concerning extraterri­ torial assets is limited to that which the Act makes relevant to execu­ tion in the United States. Post, at 2 (opinion of GINSBURG, J.). We can find no basis in the Act or the rules for that position. Cite as: 573 U. S. ____ (2014) 11 Opinion of the Court discovery “clearinghouses”? The riddle is not ours to solve (if it can be solved at all). It is of course possible that, had Congress anticipated the rather unusual circumstances of this case (foreign sovereign waives immunity; foreign sovereign owes money under valid judgments; foreign sovereign does not pay and apparently has no executable assets in the United States), it would have added to the Act a sentence conferring categorical discovery-in-aid-of­ execution immunity on a foreign state’s extraterritorial assets. Or, just as possible, it would have done no such thing. Either way, “[t]he question . . . is not what Con­ gress ‘would have wanted’ but what Congress enacted in the FSIA.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992).5 Nonetheless, Argentina and the United States urge us to consider the worrisome international-relations conse­ quences of siding with the lower court. Discovery orders as sweeping as this one, the Government warns, will cause “a substantial invasion of [foreign states’] sovereignty,” Brief for United States as Amicus Curiae 18, and will “[u]ndermin[e] international comity,” id., at 19. Worse, such orders might provoke “reciprocal adverse treatment of the United States in foreign courts,” id., at 20, and will “threaten harm to the United States’ foreign relations more generally,” id., at 21. These apprehensions are better directed to that branch of government with author- ity to amend the Act—which, as it happens, is the same branch that forced our retirement from the immunity-by­ factor-balancing business nearly 40 years ago.6 —————— 5 NML also argues that, even if Argentina had a claim to immunity from postjudgment discovery, it waived it in its bond indenture agree­ ment, see n. 1, supra. The Second Circuit did not address this argu­ ment. Nor do we. 6 Although this appeal concerns only the meaning of the Act, we have no reason to doubt that, as NML concedes, “other sources of law” ordinarily will bear on the propriety of discovery requests of this nature 12 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE SOTOMAYOR took no part in the decision of this case. —————— and scope, such as “settled doctrines of privilege and the discretionary determination by the district court whether the discovery is warranted, which may appropriately consider comity interests and the burden that the discovery might cause to the foreign state.” Brief for Respondent 24–25 (quoting Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 543–544, and n. 28 (1987)). Cite as: 573 U. S. ____ (2014) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–842 _________________ REPUBLIC OF ARGENTINA, PETITIONER v. NML CAPITAL, LTD.

We must decide whether the Foreign Sovereign Immu- nities Act of 976 (FSIA or Act), 28 U.S. C. 602 et seq., limits the scope of discovery available to a judg­ ment creditor in a federal postjudgment execution pro­ ceeding against a foreign sovereign. I. Background In 200, petitioner, Republic of Argentina, defaulted on its external debt. In 2005 and 200, it restructured most of that debt by offering creditors new securities (with less favorable terms) to swap out for the defaulted ones. Most bondholders went along. Respondent, NML Capital, Ltd. (NML), among others, did not. NML brought actions against Argentina in the Southern District of New York to collect on its debt, and prevailed in every one. It is owed around $2.5 billion, —————— The District Court’s jurisdiction rested on Argentina’s broad waiver of sovereign immunity memorialized in its bond indenture agreement, which states: “To the extent that [Argentina] or any of its revenues, assets or properties shall be entitled to any immunity from suit from attachment prior to judgment from execution of a judgment or 2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court which Argentina has not paid. Having been unable to collect on its judgments from Argentina, NML has at­ tempted to execute them against Argentina’s property. That postjudgment litigation “has involved lengthy at­ tachment proceedings before the district court and multi­ ple appeals.” EM Ltd. v. Republic of Argentina, 695 F.3d 20, 203, and n. 2 (CA2 202) (referring the reader to prior opinions “[f]or additional background on Argentina’s de­ fault and the resulting litigation”). Since 2003, NML has pursued discovery of Argentina’s property. In 200, “ ‘[i]n order to locate Argentina’s assets and accounts, learn how Argentina moves its assets through New York and around the world, and accurately identify the places and times when those assets might be subject to attachment and execution (whether under [United States law] or the law of foreign jurisdictions),’ ” NML served subpoenas on two nonparty banks, Bank of America (BOA) and Banco de la Nación Argentina (BNA), an Argentinian bank with a branch in New York City. For the most part, the two subpoenas target the same kinds of information: docu­ ments relating to accounts maintained by or on behalf of Argentina, documents identifying the opening and closing dates of Argentina’s accounts, current balances, transac­ tion histories, records of electronic fund transfers, debts owed by the bank to Argentina, transfers in and out of Argentina’s accounts, and information about transferors and transferees. Argentina, joined by BOA, moved to quash the BOA subpoena. NML moved to compel compliance but, before —————— from any other legal or judicial process or remedy, [Argentina] has irrevocably agreed not to claim and has irrevocably waived such im­ munity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the [FSIA] to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment)” App. 06–07. Cite as: 573 U. S. (204) 3 Opinion of the Court the court ruled, agreed to narrow its subpoenas by exclud­ ing the names of some Argentine officials from the ini- tial electronic-fund-transfer message search. NML also agreed to treat as confidential any documents that the banks so designated. The District Court denied the motion to quash and granted the motions to compel. Approving the subpoenas in principle, it concluded that extraterritorial asset discov­ ery did not offend Argentina’s sovereign immunity, and it reaffirmed that it would serve as a “clearinghouse for information” in NML’s efforts to find and attach Argenti­ na’s assets. App. to Pet. for Cert. 3. But the court made clear that it expected the parties to negotiate further over specific production requests, which, the court said, must include “some reasonable definition of the information being sought.” There was no point, for in­ stance, in “getting information about something that might lead to attachment in Argentina because that would be useless information,” since no Argentinian court would allow attachment. “Thus, the district court sought to limit the subpoenas to discovery that was rea­ sonably calculated to lead to attachable property.” 695 F.3d, 4–205. NML and BOA later negotiated additional changes to the BOA subpoena. NML expressed its willingness to narrow its requests from BNA as well, but BNA neither engaged in negotiation nor complied with the subpoena. Only Argentina appealed, arguing that the court’s order transgressed the Foreign Sovereign Immunities Act be­ cause it permitted discovery of Argentina’s extraterritorial assets. The Second Circuit affirmed, holding that “be­ cause the Discovery Order involves discovery, not attach­ ment of sovereign property, and because it is directed at third-party banks, not at Argentina itself, Argentina’s sovereign immunity is not infringed.” We granted certiorari. 57 U. S. (204). 4 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court II. Analysis A The rules governing discovery in postjudgment execu­ tion proceedings are quite permissive. Federal Rule of Civil Procedure 69(a)(2) states that, “[i]n aid of the judg­ ment or execution, the judgment creditor may obtain discovery from any person—including the judgment debtor— as provided in the rules or by the procedure of the state where the court is located.” See 2 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure p. 60 (2d ed. 997) (hereinafter Wright & Miller) (court “may use the discovery devices provided in [the federal rules] or may obtain discovery in the manner provided by the practice of the state in which the district court is held”). The general rule in the federal system is that, subject to the district court’s discretion, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. Rule Civ. Proc. 26(b)(). And New York law entitles judgment creditors to discover “all matter relevant to the satisfac­ tion of [a] judgment,” N. Y. Civ. Prac. Law Ann. (West 997), permitting “investigation [of] any person shown to have any light to shed on the subject of the judgment debtor’s assets or their whereabouts,” D. Siegel, New York Practice p. 89 (5th ed. 20). The meaning of those rules was much discussed at oral argument. What if the assets targeted by the discovery request are beyond the jurisdictional reach of the court to which the request is made? May the court nonetheless permit discovery so long as the judgment creditor shows that the assets are recoverable under the laws of the jurisdictions in which they reside, whether that be Florida or France? We need not take up those issues today, since Argentina has not put them in contention. In the Court of Appeals, Argentina’s only asserted ground for objection to Cite as: 573 U. S. (204) 5 Opinion of the Court the subpoenas was the Foreign Sovereign Immunities Act. See (“Argentina argues that the normally broad scope of discovery in aid of execution is limited in this case by principles of sovereign immunity”). And Argentina’s petition for writ of certiorari asked us to decide only whether that Act “imposes [a] limit on a United States court’s authority to order blanket post-judgment execution discovery on the assets of a foreign state used for any activity anywhere in the world.” Pet. for Cert. 4. Plainly, then, this is not a case about the breadth of Rule 69(a)(2).2 We thus assume without deciding that, as the Government conceded at argument, Tr. of Oral Arg. 24, and as the Second Circuit concluded below, “in a run-of­ the-mill execution proceeding the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor’s assets located outside the United States.” The single, narrow question before us is whether the Foreign Sovereign Immunities Act specifies a different rule when the judgment debtor is a foreign state. B To understand the effect of the Act, one must know something about the regime it replaced. Foreign sovereign immunity is, and always has been, “a matter of grace and comity on the part of the United States, and not a re­ striction imposed by the Constitution.” B. V. v. Central Bank of Nigeria, Ac­ cordingly, this Court’s practice has been to “defe[r] to the decisions of the political branches” about whether and —————— 2 On one of the final pages of its reply brief, Argentina makes for the first time the assertion (which it does not develop, and for which it cites no authority) that the scope of Rule 69 discovery in aid of execution is limited to assets upon which a United States court can execute. Reply Brief 9. We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief. 6 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court when to exercise judicial power over foreign states. For the better part of the last two centuries, the political branch making the determination was the Executive, which typically requested immunity in all suits against friendly foreign states. at –487. But then, in 952, the State Department embraced (in the so-called Tate Letter) the “restrictive” theory of sovereign immunity, which holds that immunity shields only a foreign sover­ eign’s public, noncommercial acts. and n. 9. The Tate Letter “thr[ew] immunity determinations into some disarray,” since “political considerations sometimes led the Department to file suggestions of immunity in cases where immunity would not have been available under the restrictive theory.” Republic of (internal quotation marks omitted). Further muddling matters, when in particular cases the State Department did not suggest immunity, courts made immunity determinations “generally by refer­ ence to prior State Department decisions.” 46 U.S., Hence it was that “sovereign immunity decisions were [being] made in two different branches, subject to a variety of factors, sometimes including diplo­ matic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied.” at 488. Congress abated the bedlam in 976, replacing the old executive-driven, factor-intensive, loosely common-law­ based immunity regime with the Foreign Sovereign Im­ munities Act’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” The key word there—which goes a long way toward deciding this case—is comprehensive. We have used that term often and advisedly to describe the Act’s sweep: “Congress established [in the FSIA] a com­ prehensive framework for resolving any claim of sovereign immunity.” The Act “compre­ Cite as: 573 U. S. (204) 7 Opinion of the Court hensively regulat[es] the amenability of foreign nations to suit in the United States.” This means that “[a]fter the enactment of the FSIA, the Act— and not the pre-existing common law—indisputably gov­ erns the determination of whether a foreign state is enti­ tled to sovereign immunity.” Samantar v. Yousuf, 560 U.S. 305, 33 (200). As the Act itself instructs, “[c]laims of foreign states to immunity should henceforth be decided by courts in conformity with the principles set forth in this [Act].” 28 U.S. C. (emphasis added). Thus, any sort of immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. Or it must fall. The text of the Act confers on foreign states two kinds of immunity. First and most significant, “a foreign state shall be immune from the jurisdiction of the courts of the United States except as provided in sections 605 to 607.” That provision is of no help to Argentina here: A foreign state may waive jurisdictional immunity, and in this case Argentina did so, see 695 F.3d, Consequently, the Act makes Argentina “liable in the same manner and to the same extent as a private individual under like circumstances.” The Act’s second immunity-conferring provision states that “the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execu­ tion except as provided in sections 60 and 6 of this chapter.” The exceptions to this immunity defense (we will call it “execution immunity”) are narrower. “The property in the United States of a foreign state” is subject to attachment, arrest, or execution if () it is “used for a commercial activity in the United States,” and (2) some other enumerated exception to immunity applies, such as the one allowing for waiver, see The Act goes on to confer a more robust execution immu­ nity on designated international-organization property, 8 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court property of a foreign central bank, and “property of a foreign state [that] is, or is intended to be, used in connection with a military activity” and is either “of a military character” or “under the control of a military authority or defense agency,” That is the last of the Act’s immunity-granting sections. There is no third provision forbidding or limiting discovery in aid of execution of a foreign-sovereign judgment debt­ or’s assets. Argentina concedes that no part of the Act “expressly address[es] [postjudgment] discovery.” Brief for Petitioner 22. Quite right. The Act speaks of discovery only once, in a subsection requiring courts to stay discov­ ery requests directed to the United States that would interfere with criminal or national-security matters, And that section explicitly suspends certain Federal Rules of Civil Procedure when such a stay is entered, see Elsewhere, it is clear when the Act’s provisions specifically applicable to suits against sovereigns displace their general federal-rule counter­ parts. See, e.g., Far from containing the “plain statement” necessary to preclude application of federal discovery rules, Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, the Act says not a word on the subject.3 Argentina would have us draw meaning from this si­ lence. Its argument has several parts. First, it asserts that, before and after the Tate Letter, the State Depart­ ment and American courts routinely accorded absolute execution immunity to foreign-state property. If a thing belonged to a foreign sovereign, then, no matter where it —————— 3 Argentina and the United States suggest that, under the terms of Rule 69 itself, the Act trumps the federal rules, since Rule 69(a)() states that “a federal statute governs to the extent it applies.” But, since the Act does not contain implicit discovery-immunity protections, it does not “apply” (in the relevant sense) at all. Cite as: 573 U. S. (204) 9 Opinion of the Court was found, it was immune from execution. And absolute immunity from execution necessarily entailed immunity from discovery in aid of execution. Second, by codifying execution immunity with only a small set of exceptions, Congress merely “partially lowered the previously uncon­ ditional barrier to post-judgment relief.” Brief for Peti­ tioner 29. Because the Act gives “no indication that it was authorizing courts to inquire into state property beyond the court’s limited enforcement authority,” ib Argen­ tina contends, discovery of assets that do not fall within an exception to execution immunity (plainly true of a foreign state’s extraterritorial assets) is forbidden. The argument founders at each step. To begin with, Argentina cites no case holding that, before the Act, a foreign state’s extraterritorial assets enjoyed absolute execution immunity in United States courts. No surprise there. Our courts generally lack authority in the first place to execute against property in other countries, so how could the question ever have arisen? See Wright & Miller at 56 (“[A] writ of execution can be served anywhere within the state in which the district court is held”). More importantly, even if Argentina were right about the scope of the common-law execution­ immunity rule, then it would be obvious that the terms of execution immunity are narrower, since the text of that provision immunizes only foreign-state property “in the United States.” So even if Argentina were correct that execution immunity implies coextensive discovery­ in-aid-of-execution immunity, the latter would not shield from discovery a foreign sovereign’s extraterritorial assets. But what of foreign-state property that would enjoy execution immunity under the Act, such as Argentina’s diplomatic or military property? Argentina maintains that, if a judgment creditor could not ultimately execute a judgment against certain property, then it has no business pursuing discovery of information pertaining to that prop­ 0 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court erty. But the reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisdiction’s law. If, bizarrely, NML’s subpoenas had sought only “information that could not lead to executable assets in the United States or abroad,” then Argentina likely would be correct to say that the subpoenas were unenforceable—not because information about nonexecut­ able assets enjoys a penumbral “discovery immunity” under the Act, but because information that could not possibly lead to executable assets is simply not “relevant” to execution in the first place, Fed. Rule Civ. Proc. 26(b)(); N. Y. Civ. Prac. Law Ann.4 But of course that is not what the subpoenas seek. They ask for infor­ mation about Argentina’s worldwide assets generally, so that NML can identify where Argentina may be holding property that is subject to execution. To be sure, that request is bound to turn up information about property that Argentina regards as immune. But NML may think the same property not immune. In which case, Argenti­ na’s self-serving legal assertion will not automatically prevail; the District Court will have to settle the matter. * * * Today’s decision leaves open what Argentina thinks is a gap in the statute. Could the 976 Congress really have meant not to protect foreign states from postjudgment —————— 4 The dissent apparently agrees that the Act has nothing to say about the scope of postjudgment discovery of a foreign sovereign’s extraterri­ torial assets. It also apparently agrees that the rules limit discovery to matters relevant to execution. Our agreement ends there. The dissent goes on to assert that, unless a judgment creditor proves up front that all of the information it seeks is relevant to execution under the laws of all foreign jurisdictions, discovery of information concerning extraterri­ torial assets is limited to that which the Act makes relevant to execu­ tion in the United States. Post, at 2 (opinion of GINSBURG, J.). We can find no basis in the Act or the rules for that position. Cite as: 573 U. S. (204) Opinion of the Court discovery “clearinghouses”? The riddle is not ours to solve (if it can be solved at all). It is of course possible that, had Congress anticipated the rather unusual circumstances of this case (foreign sovereign waives immunity; foreign sovereign owes money under valid judgments; foreign sovereign does not pay and apparently has no executable assets in the United States), it would have added to the Act a sentence conferring categorical discovery-in-aid-of­ execution immunity on a foreign state’s extraterritorial assets. Or, just as possible, it would have done no such thing. Either way, “[t]he question is not what Con­ gress ‘would have wanted’ but what Congress enacted in the FSIA.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 68 (992).5 Nonetheless, Argentina and the United States urge us to consider the worrisome international-relations conse­ quences of siding with the lower court. Discovery orders as sweeping as this one, the Government warns, will cause “a substantial invasion of [foreign states’] sovereignty,” Brief for United States as Amicus Curiae 8, and will “[u]ndermin[e] international comity,” Worse, such orders might provoke “reciprocal adverse treatment of the United States in foreign courts,” and will “threaten harm to the United States’ foreign relations more generally,” These apprehensions are better directed to that branch of government with author- ity to amend the Act—which, as it happens, is the same branch that forced our retirement from the immunity-by­ factor-balancing business nearly 40 years ago.6 —————— 5 NML also argues that, even if Argentina had a claim to immunity from postjudgment discovery, it waived it in its bond indenture agree­ ment, see n. The Second Circuit did not address this argu­ ment. Nor do we. 6 Although this appeal concerns only the meaning of the Act, we have no reason to doubt that, as NML concedes, “other sources of law” ordinarily will bear on the propriety of discovery requests of this nature 2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. Opinion of the Court The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE SOTOMAYOR took no part in the decision of this case. —————— and scope, such as “settled doctrines of privilege and the discretionary determination by the district court whether the discovery is warranted, which may appropriately consider comity interests and the burden that the discovery might cause to the foreign state.” Brief for Respondent 24–25 ). Cite as: 573 U. S. (204) GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 2–842 REPUBLIC OF ARGENTINA, PETITIONER v. NML CAPITAL, LTD.

Justice Breyer

concurring

Oubre v. Entergy Operations, Inc.

https://www.courtlistener.com/opinion/118169/oubre-v-entergy-operations-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118169/

1997-025

This case focuses upon a worker who received a payment from her employer and in return promised not to bring an age-discrimination suit. Her promise failed the procedural tests of validity set forth in the Older Workers Benefit Protection Act (OWBPA), 29 U.S. C. § 626(f)(1). I agree with the majority that, because of this procedural failing, the worker is free to bring her age-discrimination suit without "tendering back" her employer's payment as a precondition. As a conceptual matter, a "tender back" requirement would imply that the worker had ratified her promise by keeping *431 her employer's payment. For that reason, it would bar suit, including suit by a worker (without other assets) who had already spent the money he received for the promise. Yet such an act of ratification could embody some of the same procedural failings that led Congress to find the promise not to sue itself invalid. For these reasons, as the majority points out, a tender back precondition requirement would run contrary to Congress' statutory command. See ante, at 426-427. Cf. 1 Restatement (Second) of Contracts § 85, Comment b (1979) (a promise ratifying a voidable contract "may itself be voidable for the same reason as the original promise, or it may be voidable or unenforceable for some other reason"); D. Dobbs, Law of Remedies 982 (1973) ("[C]ourts must avoid allowing a recovery that has the effect of substantially enforcing the contract that has been declared unenforceable, since to do so would defeat the policy that led to the . . . rule in the first place"). I write these additional words because I believe it important to specify that the statute need not, and does not, thereby make the worker's procedurally invalid promise totally void, i. e., without any legal effect, say, like a contract the terms of which themselves are contrary to public policy. See 1 Restatement (Second) of Contracts § 7, Comment a (1979); 2 id., § 178. Rather, the statute makes the contract that the employer and worker tried to create voidable, like a contract made with an infant, or a contract created through fraud, mistake, or duress, which contract the worker may elect either to avoid or to ratify. See 1 id., § 7, and Comment b. To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e. g., a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e. g., a contract *432 to commit murder. Compare 1 id., § 7, Comment b (voidable), with 2 id., § 178, and Comment d (void). The statute before us reflects concern about the conditions (of knowledge and free choice) surrounding the making of a contract to waive an age-discrimination claim. It does not reflect any relevant concern about enforcing the contract's substantive terms. Nor does this statute, unlike the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S. C. § 51 et seq., say that a contract waiving suit and thereby avoiding liability is void. § 55. Rather, as the majority's opinion makes clear, see ante, at 426-427, the OWBPA prohibits courts from finding ratification in certain circumstances, such as those presented here, namely, a worker's retention of an employer's payment for an invalid release. That fact may affect ratification, but it need not make the contract void, rather than voidable. That the contract is voidable rather than void may prove important. For example, an absolutely void contract, it is said, "is void as to everybody whose rights would be affected by it if valid." 17A Am. Jur. 2d, Contracts § 7, p. 31 (1991). Were a former worker's procedurally invalid promise not to sue absolutely void, might it not become legally possible for an employer to decide to cancel its own reciprocal obligation, say, to pay the worker, or to provide ongoing health benefits—whether or not the worker in question ever intended to bring a lawsuit? It seems most unlikely that Congress, enacting a statute meant to protect workers, would have wanted to create—as a result of an employer's failure to follow the law—any such legal threat to all workers, whether or not they intend to bring suit. To find the contract voidable, rather than void, would offer legal protection against such threats. At the same time, treating the contract as voidable could permit an employer to recover his own reciprocal payment (or to avoid his reciprocal promise) where doing so seems *433 most fair, namely, where that recovery would not bar the worker from bringing suit. Once the worker (who has made the procedurally invalid promise not to sue) brings an agediscrimination suit, he has clearly rejected (avoided) his promise not to sue. As long as there is no "tender back" precondition, his (invalid) promise will not have barred his suit in conflict with the statute. Once he has sued, however, nothing in the statute prevents his employer from asking for restitution of his reciprocal payment or relief from any ongoing reciprocal obligation. See Restatement of Restitution § 47, Comment b (1936) ("A person who transfers something to another believing that the other thereby comes under a duty to perform the terms of a contract . . . is ordinarily entitled to restitution for what he has given if the obligation intended does not arise and if the other does not perform"); Dobbs, supra, at 994 (restitution is often allowed where benefits are conferred under voidable contract). A number of older state cases indicate, for example, that the amount of consideration paid for an invalid release can be deducted from a successful plaintiff's damages award. See, e. g., St. Louis-San Francisco R. Co. v. Cox, 171 Ark. 103, 113-115, 283 S.W. 31, 35 (1926) (amount paid for invalid release may be taken into consideration in setting remedy); Koshka v. Missouri Pac. R. Co., 114 Kan. 126, 129-130, 217 P. 293, 295 (1923) (the sum paid for an invalid release may be treated as an item of credit against damages); Miller v. Spokane Int'l R. Co., 82 Wash. 170, 177-178, 143 P. 981, 984 (1914) (same); Gilmore v. Western Elec. Co., 42 N. D. 206, 211-212, 172 N.W. 111, 113 (1919). My point is that the statute's provisions are consistent with viewing an invalid release as voidable, rather than void. Apparently, five or more Justices take this view of the matter. See post, at 436, n. 1 (Thomas, J., dissenting). As I understand the majority's opinion, it is also consistent with this view, and I consequently concur in its opinion.

This case focuses upon a worker who received a payment from her employer and in return promised not to bring an age-discrimination suit. Her promise failed the procedural tests of validity set forth in the Older Workers Benefit Protection Act (OWBPA), 29 U.S. C. 626(f)(1). I agree with the majority that, because of this procedural failing, the worker is free to bring her age-discrimination suit without "tendering back" her employer's payment as a precondition. As a conceptual matter, a "tender back" requirement would imply that the worker had ratified her promise by keeping *431 her employer's payment. For that reason, it would bar suit, including suit by a worker (without other assets) who had already spent the money he received for the promise. Yet such an act of ratification could embody some of the same procedural failings that led Congress to find the promise not to sue itself invalid. For these reasons, as the majority points out, a tender back precondition requirement would run contrary to Congress' statutory command. See ante, at 426-427. Cf. 1 Restatement (Second) of Contracts 85, Comment b (1979) (a promise ratifying a voidable contract "may itself be voidable for the same reason as the original promise, or it may be voidable or unenforceable for some other reason"); D. Dobbs, Law of Remedies 982 (1973) ("[C]ourts must avoid allowing a recovery that has the effect of substantially enforcing the contract that has been declared unenforceable, since to do so would defeat the policy that led to the rule in the first place"). I write these additional words because I believe it important to specify that the statute need not, and does not, thereby make the worker's procedurally invalid promise totally void, i. e., without any legal effect, say, like a contract the terms of which themselves are contrary to public policy. See 1 Restatement (Second) of Contracts 7, Comment a (1979); 2 178. Rather, the statute makes the contract that the employer and worker tried to create voidable, like a contract made with an infant, or a contract created through fraud, mistake, or duress, which contract the worker may elect either to avoid or to ratify. See 1 7, and Comment b. To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e. g., a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e. g., a contract *432 to commit murder. Compare 1 7, Comment b (voidable), with 2 178, and Comment d (void). The statute before us reflects concern about the conditions (of knowledge and free choice) surrounding the making of a contract to waive an age-discrimination claim. It does not reflect any relevant concern about enforcing the contract's substantive terms. Nor does this statute, unlike the Federal Employers' Liability Act, as amended, 45 U.S. C. 51 et seq., say that a contract waiving suit and thereby avoiding liability is void. 55. Rather, as the majority's opinion makes clear, see ante, at 426-427, the OWBPA prohibits courts from finding ratification in certain circumstances, such as those presented here, namely, a worker's retention of an employer's payment for an invalid release. That fact may affect ratification, but it need not make the contract void, rather than voidable. That the contract is voidable rather than void may prove important. For example, an absolutely void contract, it is said, "is void as to everybody whose rights would be affected by it if valid." 17A Am. Jur. 2d, Contracts 7, p. 31 (1991). Were a former worker's procedurally invalid promise not to sue absolutely void, might it not become legally possible for an employer to decide to cancel its own reciprocal obligation, say, to pay the worker, or to provide ongoing health benefits—whether or not the worker in question ever intended to bring a lawsuit? It seems most unlikely that Congress, enacting a statute meant to protect workers, would have wanted to create—as a result of an employer's failure to follow the law—any such legal threat to all workers, whether or not they intend to bring suit. To find the contract voidable, rather than void, would offer legal protection against such threats. At the same time, treating the contract as voidable could permit an employer to recover his own reciprocal payment (or to avoid his reciprocal promise) where doing so seems *433 most fair, namely, where that recovery would not bar the worker from bringing suit. Once the worker (who has made the procedurally invalid promise not to sue) brings an agediscrimination suit, he has clearly rejected (avoided) his promise not to sue. As long as there is no "tender back" precondition, his (invalid) promise will not have barred his suit in conflict with the statute. Once he has sued, however, nothing in the statute prevents his employer from asking for restitution of his reciprocal payment or relief from any ongoing reciprocal obligation. See Restatement of Restitution 47, Comment b (1936) ("A person who transfers something to another believing that the other thereby comes under a duty to perform the terms of a contract is ordinarily entitled to restitution for what he has given if the obligation intended does not arise and if the other does not perform"); Dobbs, A number of older state cases indicate, for example, that the amount of consideration paid for an invalid release can be deducted from a successful plaintiff's damages award. See, e. g., St. Louis-San Francisco R. ; ; ; My point is that the statute's provisions are consistent with viewing an invalid release as voidable, rather than void. Apparently, five or more Justices take this view of the matter. See post, at 436, n. 1 (Thomas, J., dissenting). As I understand the majority's opinion, it is also consistent with this view, and I consequently concur in its opinion.

Justice O'Connor

majority

Meghrig v. KFC Western, Inc.

https://www.courtlistener.com/opinion/118007/meghrig-v-kfc-western-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118007/

1995-033

We consider whether § 7002 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S. C. § 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not. I Respondent KFC Western, Inc. (KFC), owns and operates a "Kentucky Fried Chicken" restaurant on a parcel of property in Los Angeles. In 1988, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil. Three years later, KFC brought this suit under the citizen suit provision of RCRA, 90 Stat. 2825, as amended, 42 *482 U. S. C. § 6972(a),[*] seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig. KFC claimed that the contaminated soil was a "solid waste" covered by RCRA, see 42 U.S. C. § 6903(27), that it had previously posed an "imminent and substantial endangerment to health or the environment," see § 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" of KFC's cleanup costs under § 6972(a) because, as prior owners of the property, they had contributed to the waste's "past or present handling, storage, treatment, transportation, or disposal." See App. 12-19 (first amended complaint). The District Court held that § 6972(a) does not permit recovery of past cleanup costs and that § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. App. to Pet. for Cert. A21-A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, 49 F.3d 518, 524-528 (1995) (Brunetti, J.), finding that a district court had authority under § 6972(a) to award restitution of past cleanup costs, id., at 521-523, and *483 that a private party can proceed with a suit under § 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up, id., at 520-521. The Ninth Circuit's conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in Furrer v. Brown, 62 F.3d 1092, 1100-1101 (1995), and its interpretation of the "imminent endangerment" requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit's interpretation of RCRA, 515 U.S. 1192 (1995), and now reverse. II RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Chicago v. Environmental Defense Fund, 511 U.S. 328, 331-332 (1994). Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U.S. C. § 9601 et seq. , RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415, 1422 (CA8 1990) (the "two. . . main purposes of CERCLA" are "prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party"). RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, "so as to minimize the present and future threat to human health and the environment." 42 U.S. C. § 6902(b). Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental *484 Protection Agency (EPA), see §§ 6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, § 6972, which permits private citizens to enforce its provisions in some circumstances. Two requirements of § 6972(a) defeat KFC's suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under § 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Emphasis added.) The second defines the remedies a district court can award in a suit brought under § 6972(a)(1)(B): Section 6972(a) authorizes district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste . . . , to order such person to take such other action as may be necessary, or both." (Emphasis added.) It is apparent from the two remedies described in § 6972(a) that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to "take action" by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that "restrains" a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated "damages" or "equitable restitution." In this regard, a comparison between the relief available under RCRA's citizen suit provision and that which Congress *485 has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U.S. C. § 6903(5) (RCRA definition of "hazardous waste") and § 6903(27) (RCRA definition of "solid waste") with § 9601(14) (CERCLA provision incorporating certain "hazardous substance[s]," but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA's citizen suit provision mimics § 6972(a) in providing district courts with the authority "to order such action as may be necessary to correct the violation" of any CERCLA standard or regulation. 42 U.S. C. § 9659(c). But CERCLA expressly permits the Government to recover "all costs of removal or remedial action," § 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any . . . person consistent with the national contingency plan," § 9607(a)(4)(B). CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs. See § 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy. That RCRA's citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue "may present an imminent and substantial endangerment to health or the environment." The meaning of this timing restriction is plain: An endangerment can only be "imminent" if it "threaten[s] to occur immediately," Webster's New International Dictionary of English Language 1245 (2d ed. 1934), and the reference *486 to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in Price v. United States Navy, 39 F.3d 1011, 1019 (1994), this language "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." It follows that § 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Cf. § 6902(b) (national policy behind RCRA is "to minimize the present and future threat to human health and the environment"). Other aspects of RCRA's enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare § 9613(g)(2) (limitations period in suits under CERCLA § 9607), and it does not require a showing that the response costs being sought are reasonable, compare §§ 9607(a)(4)(A) and (B) (costs recovered under CERCLA must be "consistent with the national contingency plan"). If Congress had intended § 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see Hallstrom v. Tillamook County, 493 U.S. 20, 26-27 (1989) (noting exception to notice requirement "when there is a danger that hazardous waste will be discharged"), a private party may not bring suit under § 6972(a)(1)(B) without first giving 90 days' notice to the Administrator of the EPA, to "the State in which the alleged endangerment may occur," and to potential defendants, see §§ 6972(b)(2)(A)(i)— (iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see §§ 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor *487 the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery. Though it agrees that KFC's complaint is defective for failing properly to allege an "imminent and substantial endangerment," the Government (as amicus ) nonetheless joins KFC in arguing that § 6972(a) does not in all circumstances preclude an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-19, the Government does not rely on the remedies expressly provided in § 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., Porter v. Warner Holding Co., 328 U.S. 395 (1946); Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967); Hecht Co. v. Bowles, 321 U.S. 321 (1944). RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see § 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in § 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 14 (1981), where Congress has provided "elaborate enforcement provisions" for remedying the violation *488 of a federal statute, as Congress has done with RCRA and CERCLA, "it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under" the statute. "`[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.' " Id., at 14-15 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)). Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United States v. Price, 688 F.2d 204, 211-213 (CA3 1982) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under § 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC's complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and § 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an "imminent and substantial endangerment to health or the environment," and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed. It is so ordered.

We consider whether 7002 of the Resource Conservation and Recovery Act of 76 (RCRA), 42 U.S. C. 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not. I Respondent KFC Western, Inc. (KFC), owns and operates a "Kentucky Fried Chicken" restaurant on a parcel of property in Los Angeles. In 88, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil. Three years later, KFC brought this suit under the citizen suit provision of RCRA, as amended, 42 *482 U. S. C. 6972(a),[*] seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig. KFC claimed that the contaminated soil was a "solid waste" covered by RCRA, see 42 U.S. C. 6903(27), that it had previously posed an "imminent and substantial endangerment to health or the environment," see 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" of KFC's cleanup costs under 6972(a) because, as prior owners of the property, they had contributed to the waste's "past or present handling, storage, treatment, transportation, or disposal." See App. 12- (first amended complaint). The District Court held that 6972(a) does not permit recovery of past cleanup costs and that 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. App. to Pet. for Cert. A21-A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, finding that a district court had authority under 6972(a) to award restitution of past cleanup costs, and *483 that a private party can proceed with a suit under 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up, The Ninth Circuit's conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in and its interpretation of the "imminent endangerment" requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit's interpretation of RCRA, and now reverse. II RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 80 (CERCLA), as amended, 42 U.S. C. 9601 et seq. RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, "so as to minimize the present and future threat to human health and the environment." 42 U.S. C. 6902(b). Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental *484 Protection Agency (EPA), see 6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, 6972, which permits private citizens to enforce its provisions in some circumstances. Two requirements of 6972(a) defeat KFC's suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Emphasis added.) The second defines the remedies a district court can award in a suit brought under 6972(a)(1)(B): Section 6972(a) authorizes district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste to order such person to take such other action as may be necessary, or both." (Emphasis added.) It is apparent from the two remedies described in 6972(a) that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to "take action" by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that "restrains" a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated "damages" or "equitable restitution." In this regard, a comparison between the relief available under RCRA's citizen suit provision and that which Congress *485 has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U.S. C. 6903(5) (RCRA definition of "hazardous waste") and 6903(27) (RCRA definition of "solid waste") with 9601() (CERCLA provision incorporating certain "hazardous substance[s]," but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA's citizen suit provision mimics 6972(a) in providing district courts with the authority "to order such action as may be necessary to correct the violation" of any CERCLA standard or regulation. 42 U.S. C. 9659(c). But CERCLA expressly permits the Government to recover "all costs of removal or remedial action," 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any person consistent with the national contingency plan," 9607(a)(4)(B). CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs. See 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy. That RCRA's citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue "may present an imminent and substantial endangerment to health or the environment." The meaning of this timing restriction is plain: An endangerment can only be "imminent" if it "threaten[s] to occur immediately," Webster's New International Dictionary of English Language 1245 (2d ed. 34), and the reference *486 to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in this language "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." It follows that 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Cf. 6902(b) (national policy behind RCRA is "to minimize the present and future threat to human health and the environment"). Other aspects of RCRA's enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare 9613(g)(2) (limitations period in suits under CERCLA 9607), and it does not require a showing that the response costs being sought are reasonable, compare 9607(a)(4)(A) and (B) (costs recovered under CERCLA must be "consistent with the national contingency plan"). If Congress had intended 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see a private party may not bring suit under 6972(a)(1)(B) without first giving 90 days' notice to the Administrator of the EPA, to "the State in which the alleged endangerment may occur," and to potential defendants, see 6972(b)(2)(A)(i)— (iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor *487 the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery. Though it agrees that KFC's complaint is defective for failing properly to allege an "imminent and substantial endangerment," the Government (as amicus ) nonetheless joins KFC in arguing that 6972(a) does not in all circumstances preclude an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-, the Government does not rely on the remedies expressly provided in 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., ; Wyandotte Transp. ; Hecht RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middlesex County Sewerage where Congress has provided "elaborate enforcement provisions" for remedying the violation *488 of a federal statute, as Congress has done with RCRA and CERCLA, "it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under" the statute. "`[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.' " at -15 ). Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United (CA3 82) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC's complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an "imminent and substantial endangerment to health or the environment," and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed. It is so ordered.

Justice Stevens

majority

Irizarry v. United States

https://www.courtlistener.com/opinion/145796/irizarry-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145796/

2007-052

Rule 32(h) of the Federal Rules of Criminal Procedure, promulgated in response to our decision in Burns v. United States, 501 U.S. 129, 111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991), states that "[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure." The question presented by this case is whether that Rule applies to every sentence that is a variance from the recommended Federal Sentencing Guidelines range even though not considered a "departure" as that term was used when Rule 32(h) was promulgated. I Petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of 18 U.S.C. § 875(c). Petitioner made the following admissions in the factual resume accompanying his plea: (1) On November 5, 2003, he sent an e-mail threatening to kill his ex-wife and her new husband; (2) he had sent "dozens" of similar e-mails in violation of a restraining order; (3) he intended the e-mails to "convey true threats to kill or injure multiple persons"; and (4) at all times he acted knowingly and willfully. App. 273-275. The presentence report (PSR), in addition to describing the threatening e-mails, reported that petitioner had asked another inmate to kill his ex-wife's new husband. Brief for United States 6. The PSR advised against an adjustment for acceptance of responsibility and recommended a Guidelines sentencing range of 41-to-51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats. Brief for Petitioner 9. As possible grounds for a departure, the probation officer stated that petitioner's criminal history category might not adequately reflect his "`past criminal conduct or the likelihood that [petitioner] will commit other crimes.'" Ibid. The Government made no objection to the PSR, but advised the court that it intended to call petitioner's ex-wife as a witness at the sentencing hearing. App. 293. Petitioner objected to the PSR's application of the enhancement based on his intention to carry out the threats and its rejection of an adjustment for acceptance of responsibility. Id., at 295-296. Four witnesses testified at the sentencing hearing. Id., at 299. Petitioner's ex-wife described incidents of domestic violence, the basis for the restraining order against petitioner, and the threats petitioner made against her and her family and friends. Id., at 307, 309, 314. She emphasized at some length her genuine concern that petitioner fully intended to carry out his threats. Id., at 320. A special agent of the Federal Bureau of Investigation was called to describe documents recovered from petitioner's vehicle when he was arrested; those documents indicated he intended to track down his ex-wife and their children. Id., at 326-328. Petitioner's cellmate next testified that petitioner "was obsessed with the idea of getting rid of" *2201 his ex-wife's husband. Id., at 336. Finally, petitioner testified at some length, stating that he accepted responsibility for the e-mails, but that he did not really intend to carry out his threats. Id., at 361. Petitioner also denied speaking to his cellmate about killing his ex-wife's husband. Id., at 356-357. After hearing from counsel, the trial judge delivered a thoughtful oral decision, which included findings resolving certain disputed issues of fact. She found that petitioner had deliberately terrorized his ex-wife, that he intended to carry out one or more of his threats, "that he still intends to terrorize Ms. Smith by whatever means he can and that he does not accept responsibility for what he has done." Id., at 372. After giving both petitioner and counsel an opportunity to make further comment, the judge concluded: "I've considered all of the evidence presented today, I've considered everything that's in the presentence report, and I've considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry's conduct most disturbing. I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this court does and regardless of what kind of supervision he's under. And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough. "The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry's case the statutory maximum is what's appropriate, and that's what I'm going to sentence him." Id., at 374-375. The court imposed a sentence of 60 months of imprisonment to be followed by a 3-year term of supervised release. Id., at 375. Defense counsel then raised the objection that presents the issue before us today. He stated, "We didn't have notice of [the court's] intent to upwardly depart. What the law is on that now with—," to which the Court responded, "I think the law on that is out the window .... You had notice that the guidelines were only advisory and the court could sentence anywhere within the statutory range." Id., at 377. The Court of Appeals for the Eleventh Circuit affirmed petitioner's sentence, reasoning that Rule 32(h) did not apply because "the above-guidelines sentence imposed by the district court in this case was a variance, not a guidelines departure." 458 F.3d 1208, 1211 (2006) (per curiam). The Court of Appeals declined to extend the rule to variances. "After [United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),] parties are inherently on notice that the sentencing guidelines range is advisory.... Given Booker, parties cannot claim unfair surprise or inability to present informed comment." Id., at 1212. Because the Courts of Appeals are divided with respect to the applicability of Rule 32(h) to Guidelines variances,[1] we granted *2202 certiorari. 552 U.S. ___, 128 S. Ct. 828, 169 L. Ed. 2d 625 (2008). We now affirm. II At the time of our decision in Burns, the Guidelines were mandatory; the Sentencing Reform Act of 1984, § 211 et seq., 98 Stat. 1987, prohibited district courts from disregarding "the mechanical dictates of the Guidelines" except in narrowly defined circumstances. 501 U.S., at 133, 111 S. Ct. 2182. Confronted with the constitutional problems that might otherwise arise, we held that the provision of Rule 32 that allowed parties an opportunity to comment on the appropriate sentence—now Rule 32(i)(1)(C)—would be "render[ed] meaningless" unless the defendant were given notice of any contemplated departure. Id., at 135-136, 111 S. Ct. 2182. Justice SOUTER disagreed with our conclusion with respect to the text of Rule 32 and conducted a due process analysis. Id., at 147, 111 S. Ct. 2182 (dissenting opinion). Any expectation subject to due process protection at the time we decided Burns that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive our decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which invalidated the mandatory features of the Guidelines. Now faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of "expectancy" that gave rise to a special need for notice in Burns. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 596-97 (2007); see also Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007). It is, therefore, no longer the case that "were we to read Rule 32 to dispense with notice [of a contemplated non-Guidelines sentence], we would then have to confront the serious question whether [such] notice in this setting is mandated by the Due Process Clause." Burns, 501 U.S., at 138, 111 S. Ct. 2182. The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in Burns either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C). And contrary to what the dissent argues, post, at 2204-2205 (opinion of BREYER, J.), the rule does not apply to § 3553 variances by its terms. "Departure" is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The notice requirement set out in Burns applied to a narrow category of cases. The only relevant departures were those authorized by 18 U.S.C. § 3553(b) (1988 ed.), which required "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." That determination could only be made based on "the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." Ibid. And the notice requirement only applied to the subcategory of those departures that were based on "a ground not identified as a ground for ... departure either in the presentence report or in a pre-hearing submission." Burns, 501 U.S., at 138-139, 111 S. Ct. 2182; see also Fed. Rule Crim. Proc. 32(h). Although the Guidelines, as the "starting point and the initial benchmark," continue to play a role in the sentencing determination, see Gall, *2203 552 U.S., at ___, 128 S. Ct. 586, 596-97, there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) (2000 ed. and Supp. V). Rule 32(i)(1)(C) requires the district court to allow the parties to comment on "matters relating to an appropriate sentence," and given the scope of the issues that may be considered at a sentencing hearing, a judge will normally be well-advised to withhold her final judgment until after the parties have had a full opportunity to present their evidence and their arguments. Sentencing is "a fluid and dynamic process and the court itself may not know until the end whether a variance will be adopted, let alone on what grounds." United States v. Vega-Santiago, 519 F.3d 1, 4 (C.A.1 2008) (en banc). Adding a special notice requirement whenever a judge is contemplating a variance may create unnecessary delay; a judge who concludes during the sentencing hearing that a variance is appropriate may be forced to continue the hearing even where the content of the Rule 32(h) notice would not affect the parties' presentation of argument and evidence. In the case before us today, even if we assume that the judge had contemplated a variance before the sentencing hearing began, the record does not indicate that a statement announcing that possibility would have changed the parties' presentations in any material way; nor do we think it would in most cases. The Government admits as much in arguing that the error here was harmless. Brief for United States 37-38. Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)'s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial. As Judge Boudin has noted, "In the normal case a competent lawyer... will anticipate most of what might occur at the sentencing hearing—based on the trial, the pre-sentence report, the exchanges of the parties concerning the report, and the preparation of mitigation evidence. Garden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing." Vega-Santiago, 519 F.3d, at 5. The fact that Rule 32(h) remains in effect today does not justify extending its protections to variances; the justification for our decision in Burns no longer exists and such an extension is apt to complicate rather than to simplify sentencing procedures. We have confidence in the ability of district judges and counsel—especially in light of Rule 32's other procedural protections[2]—to make sure that all relevant *2204 matters relating to a sentencing decision have been considered before the final sentencing determination is made. The judgment of the Court of Appeals is affirmed. It is so ordered.

Rule 32(h) of the Federal Rules of Criminal Procedure, promulgated in response to our decision in states that "[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure." The question presented by this case is whether that Rule applies to every sentence that is a variance from the recommended Federal Sentencing Guidelines range even though not considered a "departure" as that term was used when Rule 32(h) was promulgated. I Petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of (c). Petitioner made the following admissions in the factual resume accompanying his plea: (1) On November 5, 2003, he sent an e-mail threatening to kill his ex-wife and her new husband; (2) he had sent "dozens" of similar e-mails in violation of a restraining order; (3) he intended the e-mails to "convey true threats to kill or injure multiple persons"; and () at all times he acted knowingly and willfully. App. 273-275. The presentence report (PSR), in addition to describing the threatening e-mails, reported that petitioner had asked another inmate to kill his ex-wife's new husband. Brief for United States 6. The PSR advised against an adjustment for acceptance of responsibility and recommended a Guidelines sentencing range of 1-to-51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats. Brief for Petitioner 9. As possible grounds for a departure, the probation officer stated that petitioner's criminal history category might not adequately reflect his "`past criminal conduct or the likelihood that [petitioner] will commit other crimes.'" The Government made no objection to the PSR, but advised the court that it intended to call petitioner's ex-wife as a witness at the sentencing hearing. App. 293. Petitioner objected to the PSR's application of the enhancement based on his intention to carry out the threats and its rejection of an adjustment for acceptance of responsibility. Four witnesses testified at the sentencing hearing. Petitioner's ex-wife described incidents of domestic violence, the basis for the restraining order against petitioner, and the threats petitioner made against her and her family and friends. She emphasized at some length her genuine concern that petitioner fully intended to carry out his threats. A special agent of the Federal Bureau of Investigation was called to describe documents recovered from petitioner's vehicle when he was arrested; those documents indicated he intended to track down his ex-wife and their children. Petitioner's cellmate next testified that petitioner "was obsessed with the idea of getting rid of" *2201 his ex-wife's husband. Finally, petitioner testified at some length, stating that he accepted responsibility for the e-mails, but that he did not really intend to carry out his threats. Petitioner also denied speaking to his cellmate about killing his ex-wife's husband. After hearing from counsel, the trial judge delivered a thoughtful oral decision, which included findings resolving certain disputed issues of fact. She found that petitioner had deliberately terrorized his ex-wife, that he intended to carry out one or more of his threats, "that he still intends to terrorize Ms. Smith by whatever means he can and that he does not accept responsibility for what he has done." After giving both petitioner and counsel an opportunity to make further comment, the judge concluded: "I've considered all of the evidence presented today, I've considered everything that's in the presentence report, and I've considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry's conduct most disturbing. I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this court does and regardless of what kind of supervision he's under. And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough. "The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry's case the statutory maximum is what's appropriate, and that's what I'm going to sentence him." The court imposed a sentence of 60 months of imprisonment to be followed by a 3-year term of supervised release. Defense counsel then raised the objection that presents the issue before us today. He stated, "We didn't have notice of [the court's] intent to upwardly depart. What the law is on that now with—," to which the Court responded, "I think the law on that is out the window You had notice that the guidelines were only advisory and the court could sentence anywhere within the statutory range." The Court of Appeals for the Eleventh Circuit affirmed petitioner's sentence, reasoning that Rule 32(h) did not apply because "the above-guidelines sentence imposed by the district court in this case was a variance, not a guidelines departure." The Court of Appeals declined to extend the rule to variances. "After [United] parties are inherently on notice that the sentencing guidelines range is advisory. Given Booker, parties cannot claim unfair surprise or inability to present informed comment." Because the Courts of Appeals are divided with respect to the applicability of Rule 32(h) to Guidelines variances,[1] we granted *2202 certiorari. 552 U.S. We now affirm. II At the time of our decision in the Guidelines were mandatory; the Sentencing Reform Act of 198, 211 et seq., prohibited district courts from disregarding "the mechanical dictates of the Guidelines" except in narrowly defined Confronted with the constitutional problems that might otherwise arise, we held that the provision of Rule 32 that allowed parties an opportunity to comment on the appropriate sentence—now Rule 32(i)(1)(C)—would be "render[ed] meaningless" unless the defendant were given notice of any contemplated departure. Justice SOUTER disagreed with our conclusion with respect to the text of Rule 32 and conducted a due process analysis. (dissenting opinion). Any expectation subject to due process protection at the time we decided that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive our decision in United which invalidated the mandatory features of the Guidelines. Now faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of "expectancy" that gave rise to a special need for notice in Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. ; see also It is, therefore, no longer the case that "were we to read Rule 32 to dispense with notice [of a contemplated non-Guidelines sentence], we would then have to confront the serious question whether [such] notice in this setting is mandated by the Due Process Clause." The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C). And contrary to what the dissent argues, post, at 220-2205 (opinion of BREYER, J.), the rule does not apply to 3553 variances by its terms. "Departure" is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The notice requirement set out in applied to a narrow category of cases. The only relevant departures were those authorized by 18 U.S.C. 3553(b) (1988 ed.), which required "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." That determination could only be made based on "the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." And the notice requirement only applied to the subcategory of those departures that were based on "a ground not identified as a ground for departure either in the presentence report or in a pre-hearing submission." -139, ; see also Fed. Rule Crim. Proc. 32(h). Although the Guidelines, as the "starting point and the initial benchmark," continue to play a role in the sentencing determination, see Gall, *2203 552 U.S., at there is no longer a limit comparable to the one at issue in on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. 3553(a) (2000 ed. and Supp. V). Rule 32(i)(1)(C) requires the district court to allow the parties to comment on "matters relating to an appropriate sentence," and given the scope of the issues that may be considered at a sentencing hearing, a judge will normally be well-advised to withhold her final judgment until after the parties have had a full opportunity to present their evidence and their arguments. Sentencing is "a fluid and dynamic process and the court itself may not know until the end whether a variance will be adopted, let alone on what grounds." United Adding a special notice requirement whenever a judge is contemplating a variance may create unnecessary delay; a judge who concludes during the sentencing hearing that a variance is appropriate may be forced to continue the hearing even where the content of the Rule 32(h) notice would not affect the parties' presentation of argument and evidence. In the case before us today, even if we assume that the judge had contemplated a variance before the sentencing hearing began, the record does not indicate that a statement announcing that possibility would have changed the parties' presentations in any material way; nor do we think it would in most cases. The Government admits as much in arguing that the error here was harmless. Brief for United States 37-38. Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)'s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial. As Judge Boudin has noted, "In the normal case a competent lawyer. will anticipate most of what might occur at the sentencing hearing—based on the trial, the pre-sentence report, the exchanges of the parties concerning the report, and the preparation of mitigation evidence. Garden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing." Vega-Santiago, The fact that Rule 32(h) remains in effect today does not justify extending its protections to variances; the justification for our decision in no longer exists and such an extension is apt to complicate rather than to simplify sentencing procedures. We have confidence in the ability of district judges and counsel—especially in light of Rule 32's other procedural protections[2]—to make sure that all relevant *220 matters relating to a sentencing decision have been considered before the final sentencing determination is made. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice O'Connor

second_dissenting

Smith v. Wade

https://www.courtlistener.com/opinion/110915/smith-v-wade/

https://www.courtlistener.com/api/rest/v3/clusters/110915/

1982-063

Although I agree with the result reached in JUSTICE REHNQUIST's dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e. g., Newport v. Fact Concerts, *93 Inc., 453 U.S. 247, 258 (1981); Carey v. Piphus, 435 U.S. 247, 255 (1978). This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view rather than the other would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante, at 39-41, n. 8; 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante, at 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner. Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as pre-eminently to compensate victims of constitutional violations and to deter further violations. 453 U.S., at 268. See also Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, supra, at 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an *94 incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious. Although I cannot concur in JUSTICE REHNQUIST's wholesale condemnation of awards of punitive damages in any context or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in Part V of his opinion of the special problems of permitting awards of punitive damages for the recklessness of public officials. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have. Consequently, I dissent.

Although I agree with the result reached in JUSTICE REHNQUIST's dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e. g., ; This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view rather than the other would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante, at 39-41, n. 8; 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante, at 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner. Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of 1983 as pre-eminently to compensate victims of constitutional violations and to deter further See also ; and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an *94 incentive to bring an ever-increasing flood of 1983 claims, threatening the ability of the federal courts to handle those that are meritorious. Although I cannot concur in JUSTICE REHNQUIST's wholesale condemnation of awards of punitive damages in any context or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in Part V of his opinion of the special problems of permitting awards of punitive damages for the recklessness of public officials. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have. Consequently, I dissent.

Justice Marshall

majority

Charlotte v. Firefighters

https://www.courtlistener.com/opinion/109471/charlotte-v-firefighters/

https://www.courtlistener.com/api/rest/v3/clusters/109471/

1975-115

The city of Charlotte, N. C., refuses to withhold from the paychecks of its firefighters dues owing to their *284 union, Local 660, International Association of Firefighters. We must decide whether this refusal violates the Equal Protection Clause of the Fourteenth Amendment. I Local 660 represents about 351 of the 543 uniformed members of the Charlotte Fire Department. Since 1969 the union and individual members have repeatedly requested the city to withhold dues owing to the union from the paychecks of those union members who agree to a checkoff. The city has refused each request. After the union learned that it could obtain a private group life insurance policy for its membership only if it had a dues checkoff agreement with the city, the union and its officers filed suit in federal court alleging, inter alia, that the city's refusal to withhold the dues of union members violated the Equal Protection Clause of the Fourteenth Amendment.[1] The complaint asserted that *285 since the city withheld amounts from its employees' paychecks for payment to various other organizations, it could not arbitrarily refuse to withhold amounts for payment to the union. On cross-motions for summary judgment, the District Court for the Western District of North Carolina ruled against the city. The court determined that, although the city had no written guidelines, its "practice has been to allow check offs from employees' pay to organizations or programs as required by law or where the check off option is available to all City employees or where the check off option is available to all employees within a single employee unit such as the Fire Department." 381 F. Supp. 500, 502 (1974). The court further found that the city has "not allowed check off options serving only single employees or programs which are not available either to all City employees or to all employees engaged in a particular section of City employment." Ibid. Finding, however, that withholding union dues from the paychecks of union members would be no more difficult than processing any other deduction allowed by the city, the District Court concluded that the city had not offered a rational explanation for its refusal to withhold for the union. Accordingly, the District Court held that the city's refusal to withhold moneys when requested to do so by the respondents for the benefit of Local 660 "constitutes a violation of the individual [respondents'] rights to equal protection of laws under the Fourteenth Amendment." Id., at 502-503. The court ordered that so long as the city continued "without clearly stated and fair standards, to withhold moneys from the paychecks of City employees for other purposes," it was enjoined from refusing to withhold union dues from the paychecks of the respondents. Id., at 503. The Court of Appeals for the Fourth Circuit affirmed, 518 F.2d 83 (1975), and we granted certiorari. 423 U.S. 890 (1975). We reverse. *286 II Since it is not here asserted—and this Court would reject such a contention if it were made—that respondents' status as union members or their interest in obtaining a dues checkoff is such as to entitle them to special treatment under the Equal Protection Clause, the city's practice must meet only a relatively relaxed standard of reasonableness in order to survive constitutional scrutiny.[2] The city presents three justifications for its refusal to allow the dues checkoff requested by respondents. First, it argues, North Carolina law makes it illegal for the city to enter into a contract with a municipal union, N. C. Gen. Stat. § 95-98 (1975), and an agreement with union members to provide a dues checkoff, with the union as a third-party beneficiary, would in effect be such a contract. See 40 N. C. Op. Atty. Gen. 591 (1968-1970). Thus, compliance with the state law, and with the public policy it represents of discouraging dealing with municipal unions, is said to provide a sufficient basis for refusing respondents' request. Second, it claims, a dues checkoff is a proper subject of collective bargaining, which the city asserts Congress may shortly require of state and local governments. Under this theory, the desire to preserve the checkoff as a bargaining chip in any future collective-bargaining process is in itself an adequate basis for the refusal. Lastly, the city contends, allowing withholding only when it benefits all city or departmental employees is a legitimate method for avoiding the burden of withholding money for all persons or organizations that request a checkoff. Because we find that this explanation provides a sufficient justification for *287 the challenged practice, we have no occasion to address the first two reasons proffered. The city submitted affidavits to show that it would be unduly burdensome and expensive for it to withhold money for every organization or person that requested it, App. 17, 45, 55, and respondents did not contest this showing. As respondents concede, it was therefore reasonable, and permissible under the Equal Protection Clause, for the city to develop standards or restrictions to determine who would be eligible for withholding. Mathews v. Diaz, ante, at 82-83. See Brief for Respondents 9. Within the limitations of the Equal Protection Clause, of course, the choice of those standards is for the city and not for the courts. Thus, our inquiry is not whether standards might be drawn that would include the union but whether the standards that were drawn were reasonable ones with "some basis in practical experience." South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966). Of course, the fact that the standards were drawn and applied in practice rather than pursuant to articulated guidelines is of no import for equal protection purposes. The city allows withholding for taxes, retirement-insurance programs, savings programs, and certain charitable organizations.[3] These categories, the District *288 Court found, are those in which the checkoff option can, or must, be availed of by all city employees, or those in an entire department. Although the District Court found that this classification did not present a rational basis for rejecting respondents' requests, 381 F. Supp., at 502, we disagree. The city has determined that it will provide withholding only for programs of general interest in which all city or departmental employees can, without more, participate. Employees can participate in the union checkoff only if they join an outside organization— the union. Thus, Local 660 does not fit the category of groups for which the city will withhold. We cannot say that denying withholding to associational or special interest groups that claim only some departmental employees as members and that employees must first join before being eligible to participate in the checkoff marks an arbitrary line so devoid of reason as to violate the Equal Protection Clause. Rather, this division seems a reasonable method for providing the benefit of withholding to employees in their status as employees, while limiting the number of instances of withholding and the financial and administrative burdens attendant thereon. Given the permissibility of creating standards and the reasonableness of the standards created, the District Court's conclusion that it would be no more difficult for the city to withhold dues for the union than to process other deductions is of no import. We may accept, arguendo, that the difficulty involved in processing any individual deduction is neither great nor different in kind from that involved in processing any other deduction. However, the city has not drawn its lines in order to exclude individual deductions, but in order to avoid the cumulative burden of processing deductions every time a request is made; and inherent in such a line-drawing process are difficult choices and "some harsh and apparently arbitrary consequences . . . ." Mathews v. Diaz, *289 ante, at 83. See ante, at 82-84; Dandridge v. Williams, 397 U.S. 471, 485 (1970). Cf. Schilb v. Kuebel, 404 U.S. 357, 364 (1971); Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). Respondents recognize the legitimacy of such a process and concede that the city "is free to develop fair and reasonable standards to meet any possible cost problem." Brief for Respondents 9. Respondents have wholly failed, however, to present any reasons why the present standards are not fair and reasonable—other than the fact that the standards exclude them. This fact, of course, is insufficient to transform the city policy into a constitutional violation. Since we find a reasonable basis for the challenged classification, the judgment of the Court of Appeals for the Fourth Circuit must be reversed, and the case remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEWART concurs in the judgment upon the ground that the classification challenged in this case is not invidiously discriminatory and does not, therefore, violate the Equal Protection Clause of the Fourteenth Amendment.

The city of Charlotte, N. C., refuses to withhold from the paychecks of its firefighters dues owing to their *284 union, Local 660, International Association of Firefighters. We must decide whether this refusal violates the Equal Protection Clause of the Fourteenth Amendment. I Local 660 represents about 351 of the 543 uniformed members of the Charlotte Fire Department. Since 1969 the union and individual members have repeatedly requested the city to withhold dues owing to the union from the paychecks of those union members who agree to a checkoff. The city has refused each request. After the union learned that it could obtain a private group life insurance policy for its membership only if it had a dues checkoff agreement with the city, the union and its officers filed suit in federal court alleging, inter alia, that the city's refusal to withhold the dues of union members violated the Equal Protection Clause of the Fourteenth Amendment.[1] The complaint asserted that *285 since the city withheld amounts from its employees' paychecks for payment to various other organizations, it could not arbitrarily refuse to withhold amounts for payment to the union. On cross-motions for summary judgment, the District Court for the Western District of North Carolina ruled against the city. The court determined that, although the city had no written guidelines, its "practice has been to allow check offs from employees' pay to organizations or programs as required by law or where the check off option is available to all City employees or where the check off option is available to all employees within a single employee unit such as the Fire Department." The court further found that the city has "not allowed check off options serving only single employees or programs which are not available either to all City employees or to all employees engaged in a particular section of City employment." Finding, however, that withholding union dues from the paychecks of union members would be no more difficult than processing any other deduction allowed by the city, the District Court concluded that the city had not offered a rational explanation for its refusal to withhold for the union. Accordingly, the District Court held that the city's refusal to withhold moneys when requested to do so by the respondents for the benefit of Local 660 "constitutes a violation of the individual [respondents'] rights to equal protection of laws under the Fourteenth Amendment." at -503. The court ordered that so long as the city continued "without clearly stated and fair standards, to withhold moneys from the paychecks of City employees for other purposes," it was enjoined from refusing to withhold union dues from the paychecks of the respondents. The Court of Appeals for the Fourth Circuit affirmed, and we granted certiorari. We reverse. *286 II Since it is not here asserted—and this Court would reject such a contention if it were made—that respondents' status as union members or their interest in obtaining a dues checkoff is such as to entitle them to special treatment under the Equal Protection Clause, the city's practice must meet only a relatively relaxed standard of reasonableness in order to survive constitutional scrutiny.[2] The city presents three justifications for its refusal to allow the dues checkoff requested by respondents. First, it argues, North Carolina law makes it illegal for the city to enter into a contract with a municipal union, N. C. Gen. Stat. 95-98 and an agreement with union members to provide a dues checkoff, with the union as a third-party beneficiary, would in effect be such a contract. See 40 N. C. Op. Atty. Gen. 591 Thus, compliance with the state law, and with the public policy it represents of discouraging dealing with municipal unions, is said to provide a sufficient basis for refusing respondents' request. Second, it claims, a dues checkoff is a proper subject of collective bargaining, which the city asserts Congress may shortly require of state and local governments. Under this theory, the desire to preserve the checkoff as a bargaining chip in any future collective-bargaining process is in itself an adequate basis for the refusal. Lastly, the city contends, allowing withholding only when it benefits all city or departmental employees is a legitimate method for avoiding the burden of withholding money for all persons or organizations that request a checkoff. Because we find that this explanation provides a sufficient justification for *287 the challenged practice, we have no occasion to address the first two reasons proffered. The city submitted affidavits to show that it would be unduly burdensome and expensive for it to withhold money for every organization or person that requested it, App. 17, 45, 55, and respondents did not contest this showing. As respondents concede, it was therefore reasonable, and permissible under the Equal Protection Clause, for the city to develop standards or restrictions to determine who would be eligible for withholding. Mathews v. Diaz, ante, at 82-83. See Brief for Respondents 9. Within the limitations of the Equal Protection Clause, of course, the choice of those standards is for the city and not for the courts. Thus, our inquiry is not whether standards might be drawn that would include the union but whether the standards that were drawn were reasonable ones with "some basis in practical experience." South Of course, the fact that the standards were drawn and applied in practice rather than pursuant to articulated guidelines is of no import for equal protection purposes. The city allows withholding for taxes, retirement-insurance programs, savings programs, and certain charitable organizations.[3] These categories, the District *288 Court found, are those in which the checkoff option can, or must, be availed of by all city employees, or those in an entire department. Although the District Court found that this classification did not present a rational basis for rejecting respondents' requests, 381 F. Supp., at we disagree. The city has determined that it will provide withholding only for programs of general interest in which all city or departmental employees can, without more, participate. Employees can participate in the union checkoff only if they join an outside organization— the union. Thus, Local 660 does not fit the category of groups for which the city will withhold. We cannot say that denying withholding to associational or special interest groups that claim only some departmental employees as members and that employees must first join before being eligible to participate in the checkoff marks an arbitrary line so devoid of reason as to violate the Equal Protection Clause. Rather, this division seems a reasonable method for providing the benefit of withholding to employees in their status as employees, while limiting the number of instances of withholding and the financial and administrative burdens attendant thereon. Given the permissibility of creating standards and the reasonableness of the standards created, the District Court's conclusion that it would be no more difficult for the city to withhold dues for the union than to process other deductions is of no import. We may accept, arguendo, that the difficulty involved in processing any individual deduction is neither great nor different in kind from that involved in processing any other deduction. However, the city has not drawn its lines in order to exclude individual deductions, but in order to avoid the cumulative burden of processing deductions every time a request is made; and inherent in such a line-drawing process are difficult choices and "some harsh and apparently arbitrary consequences" Mathews v. Diaz, *289 ante, at 83. See ante, at 82-84; Cf. ; Respondents recognize the legitimacy of such a process and concede that the city "is free to develop fair and reasonable standards to meet any possible cost problem." Brief for Respondents 9. Respondents have wholly failed, however, to present any reasons why the present standards are not fair and reasonable—other than the fact that the standards exclude them. This fact, of course, is insufficient to transform the city policy into a constitutional violation. Since we find a reasonable basis for the challenged classification, the judgment of the Court of Appeals for the Fourth Circuit must be reversed, and the case remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEWART concurs in the judgment upon the ground that the classification challenged in this case is not invidiously discriminatory and does not, therefore, violate the Equal Protection Clause of the Fourteenth Amendment.

Justice Brennan

majority

Granfinanciera, SA v. Nordberg

https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/

https://www.courtlistener.com/api/rest/v3/clusters/112317/

1988-137

The question presented is whether a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer. We hold that the Seventh Amendment entitles such a person to a trial by jury, notwithstanding Congress' designation of fraudulent conveyance actions as "core proceedings" in 28 U.S. C. § 157(b)(2)(H) (1982 ed., Supp. V). I The Chase & Sanborn Corporation filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in 1983. A plan of reorganization approved by the United States Bankruptcy Court for the Southern District of Florida vested in respondent Nordberg, the trustee in bankruptcy, causes of action for fraudulent conveyances. App. to Pet. for Cert. 37. In 1985, respondent filed suit against petitioners Granfinanciera, S. A., and Medex, Ltda., in the United States District Court for the Southern District of Florida. The complaint alleged that petitioners had received $1.7 million from Chase & Sanborn's corporate predecessor within one year of the date its bankruptcy petition was filed, without receiving consideration or reasonably equivalent value in return. Id., at 39-40. Respondent sought to avoid what he alleged were constructively and actually fraudulent transfers and to recover damages, costs, expenses, and interest under 11 U.S. C. §§ 548(a)(1) and (a)(2), 550(a)(1) (1982 ed. and Supp. V). App. to Pet. for Cert. 41. The District Court referred the proceedings to the Bankruptcy Court. Over five months later, and shortly before the Colombian Government nationalized Granfinanciera, respondent *37 served a summons on petitioners in Bogota, Colombia. In their answer to the complaint following Granfinanciera's nationalization, both petitioners requested a "trial by jury on all issues so triable." App. 7. The Bankruptcy Judge denied petitioners' request for a jury trial, deeming a suit to recover a fraudulent transfer "a core action that originally, under the English common law, as I understand it, was a non-jury issue." App. to Pet. for Cert. 34. Following a bench trial, the court dismissed with prejudice respondent's actual fraud claim but entered judgment for respondent on the constructive fraud claim in the amount of $1,500,000 against Granfinanciera and $180,000 against Medex. Id., at 24-30. The District Court affirmed without discussing petitioners' claim that they were entitled to a jury trial. Id., at 18-23. The Court of Appeals for the Eleventh Circuit also affirmed. 835 F.2d 1341 (1988). The court found that petitioners lacked a statutory right to a jury trial, because the constructive fraud provision under which suit was brought — 11 U.S. C. § 548(a)(2) (1982 ed., Supp. V) — contains no mention of a right to a jury trial, and 28 U.S. C. § 1411 (1982 ed., Supp. V) "affords jury trials only in personal injury or wrongful death suits." 835 F.2d, at 1348. The Court of Appeals further ruled that the Seventh Amendment supplied no right to a jury trial, because actions to recover fraudulent conveyances are equitable in nature, even when a plaintiff seeks only monetary relief, id., at 1348-1349, and because "bankruptcy itself is equitable in nature and thus bankruptcy proceedings are inherently equitable." Id., at 1349. The court read our opinion in Katchen v. Landy, 382 U.S. 323 (1966), to say that "Congress may convert a creditor's legal right into an equitable claim and displace any seventh amendment right to trial by jury," and held that Congress had done so by designating fraudulent conveyance actions "core proceedings" triable by bankruptcy judges sitting without juries. 835 F.2d, at 1349. *38 We granted certiorari to decide whether petitioners were entitled to a jury trial, 486 U.S. 1054 (1988), and now reverse. II Before considering petitioners' claim to a jury trial, we must confront a preliminary argument. Respondent contends that the judgment below should be affirmed with respect to Granfinanciera — though not Medex — because Granfinanciera was a commercial instrumentality of the Colombian Government when it made its request for a jury trial. Respondent argues that the Seventh Amendment preserves only those jury trial rights recognized in England at common law in the late 18th century, and that foreign sovereigns and their instrumentalities were immune from suit at common law. Suits against foreign sovereigns are only possible, respondent asserts, in accordance with the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. §§ 1330, 1602-1611, and respondent reads § 1330(a)[1] to prohibit trial by jury of a case against a foreign state. Respondent concludes that Granfinanciera has no right to a jury trial, regardless of the merits of Medex's Seventh Amendment claim. We decline to address this argument because respondent failed to raise it below and because the question it poses has not been adequately briefed and argued. Without cross-petitioning for certiorari, a prevailing party may, of course, "defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals," Washington v. Yakima Indian Nation, 439 U.S. 463, *39 476, n. 20 (1979), provided that an affirmance on the alternative ground would neither expand nor contract the rights of either party established by the judgment below. See, e. g., Blum v. Bacon, 457 U.S. 132, 137, n. 5 (1982); United States v. New York Telephone Co., 434 U.S. 159, 166, n. 8 (1977). Respondent's present defense of the judgment, however, is not one he advanced below.[2] Although "we could consider grounds supporting [the] judgment different from those on which the Court of Appeals rested its decision," "where the ground presented here has not been raised below we exercise this authority `only in exceptional cases.' " Heckler v. Campbell, 461 U.S. 458, 468-469, n. 12 (1983), quoting McGoldrick v. Compagnie Generale Transatlantique, 309 U.S. 430, 434 (1940). This is not such an exceptional case. Not only do we lack guidance from the District Court or the Court of Appeals on this issue, but difficult questions remain whether a jury trial is available to a foreign state upon request under 28 U.S. C. § 1330 and, if not, under what circumstances a business enterprise that has since become an arm of a foreign state may be entitled to a jury trial. Compare Gould, Inc. v. Pechiney *40 Ugine Kuhlmann, 853 F.2d 445, 450 (CA6 1988) (jurisdiction under 28 U.S. C. § 1330 determined by party's status when act complained of occurred); Morgan Guaranty Trust Co. of N. Y. v. Republic of Palau, 639 F. Supp. 706, 712-716 (SDNY 1986) (status at time complaint was filed is decisive for § 1330 jurisdiction), with Callejo v. Bancomer, S. A., 764 F.2d 1101, 1106-1107 (CA5 1985) (FSIA applies even though bank was nationalized after suit was filed); Wolf v. Banco Nacional de Mexico, S. A., 739 F.2d 1458, 1460 (CA9 1984) (same), cert. denied, 469 U.S. 1108 (1985). Moreover, petitioners alleged in their reply brief, without contradiction by respondent at oral argument, that affirmance on the ground that respondent now urges would "unquestionably enlarge the respondent's rights under the circuit court's decision and concomitantly decrease those of the petitioner" by "open[ing] up new areas of discovery in aid of execution" and by allowing respondent, for the first time, to recover any judgment he wins against Granfinanciera from Colombia's central banking institutions and possibly those of other Colombian governmental instrumentalities. Reply Brief for Petitioners 19. Whatever the merits of these claims, their plausibility, coupled with respondent's failure to offer rebuttal, furnishes an additional reason not to consider respondent's novel argument in support of the judgment at this late stage in the litigation. We therefore leave for another day the questions respondent's argument raises under the FSIA. III Petitioners rest their claim to a jury trial on the Seventh Amendment alone.[3] The Seventh Amendment provides: "In *41 Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . ." We have consistently interpreted the phrase "Suits at common law" to refer to "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830). Although "the thrust of the *42 Amendment was to preserve the right to jury trial as it existed in 1791," the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty. Curtis v. Loether, 415 U.S. 189, 193 (1974). The form of our analysis is familiar. "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." Tull v. United States, 481 U.S. 412, 417-418 (1987) (citations omitted). The second stage of this analysis is more important than the first. Id., at 421. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.[4] *43 A There is no dispute that actions to recover preferential or fraudulent transfers were often brought at law in late 18th-century England. As we noted in Schoenthal v. Irving Trust Co., 287 U.S. 92, 94 (1932) (footnote omitted): "In England, long prior to the enactment of our first Judiciary Act, common law actions of trover and money had and received were resorted to for the recovery of preferential payments by bankrupts." See, e. g., Smith v. Payne, 6 T. R. 152, 101 Eng. Rep. 484 (K. B. 1795) (trover); Barnes v. Freeland, 6 T. R. 80, 101 Eng. Rep. 447 (K. B. 1794) (trover); Smith v. Hodson, 4 T. R. 211, 100 Eng. Rep. 979 (K. B. 1791) (assumpsit; goods sold and delivered); Vernon v. Hanson, 2 T. R. 287, 100 Eng. Rep. 156 (K. B. 1788) (assumpsit; money had and received); Thompson v. Freeman, 1 T. R. 155, 99 Eng. Rep. 1026 (K. B. 1786) (trover); Rust v. Cooper, 2 Cowp. 629, 98 Eng. Rep. 1277 (K. B. 1777) (trover); Harman v. Fishar, 1 Cowp. 117, 98 Eng. Rep. 998 (K. B. 1774) (trover); Martin v. Pewtress, 4 Burr. 2477, 98 Eng. Rep. 299 (K. B. 1769) (trover); Alderson v. Temple, 4 Burr. 2235, 98 Eng. Rep. 165 (K. B. 1768) (trover). These actions, like all suits at law, were conducted before juries. Respondent does not challenge this proposition or even contend that actions to recover fraudulent conveyances or preferential transfers were more than occasionally tried in courts of equity. He asserts only that courts of equity had concurrent jurisdiction with courts of law over fraudulent conveyance actions. Brief for Respondent 37-38. While respondent's assertion that courts of equity sometimes provided relief in fraudulent conveyance actions is true, however, it hardly suffices to undermine petitioners' submission that the present action for monetary relief would not have sounded in equity 200 years ago in England. In Parsons v. Bedford, supra, at 447 (emphasis added), we contrasted suits at law with "those where equitable rights alone were recognized" in holding that the Seventh Amendment right to a jury *44 trial applies to all but the latter actions. Respondent adduces no authority to buttress the claim that suits to recover an allegedly fraudulent transfer of money, of the sort that he has brought, were typically or indeed ever entertained by English courts of equity when the Seventh Amendment was adopted. In fact, prior decisions of this Court, see, e. g., Buzard v. Houston, 119 U.S. 347, 352-353 (1886), and scholarly authority compel the contrary conclusion: "[W]hether the trustee's suit should be at law or in equity is to be judged by the same standards that are applied to any other owner of property which is wrongfully withheld. If the subject matter is a chattel, and is still in the grantee's possession, an action in trover or replevin would be the trustee's remedy; and if the fraudulent transfer was of cash, the trustee's action would be for money had and received. Such actions at law are as available to the trustee to-day as they were in the English courts of long ago. If, on the other hand, the subject matter is land or an intangible, or the trustee needs equitable aid for an accounting or the like, he may invoke the equitable process, and that also is beyond dispute." 1 G. Glenn, Fraudulent Conveyances and Preferences § 98, pp. 183-184 (rev. ed. 1940) (footnotes omitted). The two cases respondent discusses confirm this account of English practice. Ex parte Scudamore, 3 Ves. jun. 85, 30 Eng. Rep. 907 (Ch. 1796), involved the debtor's assignment of his share of a law partnership's receivables to repay a debt shortly before the debtor was declared bankrupt. Other creditors petitioned chancery for an order directing the debtor's law partner to hand over for general distribution among creditors the debtor's current and future shares of the partnership's receivables, which he held in trust for the assignee. The Chancellor refused to do so, finding the proposal inequitable. Instead, he directed the creditors to bring an action at law against the assignee if they thought themselves entitled *45 to relief. Although this case demonstrates that fraudulent conveyance actions could be brought in equity, it does not show that suits to recover a definite sum of money would be decided by a court of equity when a petitioner did not seek distinctively equitable remedies. The creditors in Ex parte Scudamore asked the Chancellor to provide injunctive relief by ordering the debtor's former law partner to convey to them the debtor's share of the partnership's receivables that came into his possession in the future, along with receivables he then held in trust for the debtor. To the extent that they asked the court to order relinquishment of a specific preferential transfer rather than ongoing equitable relief, the Chancellor dismissed their suit and noted that the proper means of recovery would be an action at law against the transferee. Respondent's own cause of action is of precisely that sort. Hobbs v. Hull, 1 Cox 445, 29 Eng. Rep. 1242 (Ch. 1788), also fails to advance respondent's case. The assignees in bankruptcy there sued to set aside an alleged fraudulent conveyance of real estate in trust by a husband to his wife, in return for her relinquishment of a cause of action in divorce upon discovering his adultery. The court dismissed the suit, finding that the transfer was not fraudulent, and allowed the assignees to bring an ejectment or other legal action in the law courts. The salient point is that the bankruptcy assignees sought the traditional equitable remedy of setting aside a conveyance of land in trust, rather than the recovery of money or goods, and that the court refused to decide their legal claim to ejectment once it had ruled that no equitable remedy would lie. The court's sweeping statement that "Courts of Equity have most certainly been in the habit of exercising a concurrent jurisdiction with the Courts of Law on the statutes of Elizabeth respecting fraudulent conveyances," id., at 445-446, 30 Eng. Rep., at 1242, is not supported by reference to any cases that sought the recovery of a fixed sum of money without the need for an accounting or *46 other equitable relief. Nor has respondent repaired this deficit.[5] We therefore conclude that respondent would have had to bring his action to recover an alleged fraudulent conveyance *47 of a determinate sum of money at law in 18th-century England, and that a court of equity would not have adjudicated it.[6] B The nature of the relief respondent seeks strongly supports our preliminary finding that the right he invokes should be denominated legal rather than equitable. Our decisions establish beyond peradventure that "[i]n cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of *48 damages, when the like amount can be recovered at law in an action sounding in tort or for money had and received." Buzard v. Houston, 119 U. S., at 352, citing Parkersburg v. Brown, 106 U.S. 487, 500 (1883); Ambler v. Choteau, 107 U.S. 586 (1883); Litchfield v. Ballou, 114 U.S. 190 (1885). See also Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 454, n. 11 (1977) ("the otherwise legal issues of voidable preferences"); Pernell v. Southall Realty, 416 U.S. 363, 370 (1974) (" `[W]here an action is simply for the recovery . . . of a money judgment, the action is one at law' "), quoting Whitehead v. Shattuck, 138 U.S. 146, 151 (1891); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476 (1962) ("Petitioner's contention . . . is that insofar as the complaint requests a money judgment it presents a claim which is unquestionably legal. We agree with that contention"); Gaines v. Miller, 111 U.S. 395, 397-398 (1884) ("Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. The remedy at law is adequate and complete") (citations omitted). Indeed, in our view Schoenthal v. Irving Trust Co., 287 U.S. 92 (1932), removes all doubt that respondent's cause of action should be characterized as legal rather than as equitable. In Schoenthal, the trustee in bankruptcy sued in equity to recover alleged preferential payments, claiming that it had no adequate remedy at law. As in this case, the recipients of the payments apparently did not file claims against the bankruptcy estate. The Court held that the suit had to proceed at law instead, because the long-settled rule that suits in equity will not be sustained where a complete remedy exists at law, then codified at 28 U.S. C. § 384, "serves to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed." 287 U.S., at 94. The Court found that the trustee's suit — indistinguishable from respondent's suit in all relevant respects — could not go forward in equity because an adequate remedy *49 was available at law. There, as here, "[t]he preferences sued for were money payments of ascertained and definite amounts," and "[t]he bill discloses no facts that call for an accounting or other equitable relief." Id., at 95. Respondent's fraudulent conveyance action plainly seeks relief traditionally provided by law courts or on the law side of courts having both legal and equitable dockets.[7] Unless Congress may and has permissibly withdrawn jurisdiction over that action by courts of law and assigned it exclusively to non-Article III tribunals sitting without juries, the Seventh Amendment guarantees petitioners a jury trial upon request. IV Prior to passage of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549 (1978 Act), "[s]uits to recover preferences constitute[d] no part of the proceedings in bankruptcy." *50 Schoenthal v. Irving Trust Co., supra, at 94-95. Although related to bankruptcy proceedings, fraudulent conveyance and preference actions brought by a trustee in bankruptcy were deemed separate, plenary suits to which the Seventh Amendment applied. While the 1978 Act brought those actions within the jurisdiction of the bankruptcy courts, it preserved parties' rights to trial by jury as they existed prior to the effective date of the 1978 Act. 28 U.S. C. § 1480(a) (repealed). The 1984 Amendments, however, designated fraudulent conveyance actions "core proceedings," 28 U.S. C. § 157(b)(2)(H) (1982 ed., Supp. V), which bankruptcy judges may adjudicate and in which they may issue final judgments, § 157(b)(1), if a district court has referred the matter to them, § 157(a). We are not obliged to decide today whether bankruptcy courts may conduct jury trials in fraudulent conveyance suits brought by a trustee against a person who has not entered a claim against the estate, either in the rare procedural posture of this case, see supra, at 41, n. 3, or under the current statutory scheme, see 28 U.S. C. § 1411 (1982 ed., Supp. V). Nor need we decide whether, if Congress has authorized bankruptcy courts to hold jury trials in such actions, that authorization comports with Article III when non-Article III judges preside over the actions subject to review in, or withdrawal by, the district courts. We also need not consider whether jury trials conducted by a bankruptcy court would satisfy the Seventh Amendment's command that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law," given that district courts may presently set aside clearly erroneous factual findings by bankruptcy courts. Bkrtcy. Rule 8013. The sole issue before us is whether the Seventh Amendment confers on petitioners a right to a jury trial in the face of Congress' decision to allow a non-Article III tribunal to adjudicate the claims against them. *51 A In Atlas Roofing, we noted that "when Congress creates new statutory `public rights,' it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be `preserved' in `suits at common law.' " 430 U.S., at 455 (footnote omitted). We emphasized, however, that Congress' power to block application of the Seventh Amendment to a cause of action has limits. Congress may only deny trials by jury in actions at law, we said, in cases where "public rights" are litigated: "Our prior cases support administrative factfinding in only those situations involving `public rights,' e. g., where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights. Wholly private tort, contract, and property cases, as well as a vast range of other cases, are not at all implicated." Id., at 458.[8] We adhere to that general teaching. As we said in Atlas Roofing: " `On the common law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.' " Id., at 450, n. 7, quoting Crowell v. Benson, 285 U.S. 22, 51 (1932). Congress may devise novel causes of action involving public rights free from the strictures of the Seventh Amendment if it assigns their adjudication to tribunals without statutory authority to employ juries as factfinders.[9] But it lacks the power to strip parties *52 contesting matters of private right of their constitutional right to a trial by jury. As we recognized in Atlas Roofing, to hold otherwise would be to permit Congress to eviscerate the Seventh Amendment's guarantee by assigning to administrative agencies or courts of equity all causes of action not grounded in state law, whether they originate in a newly fashioned regulatory scheme or possess a long line of common-law forebears. 430 U.S., at 457-458. The Constitution nowhere grants Congress such puissant authority. "[L]egal claims are not magically converted into equitable issues by their presentation to a court of equity," Ross v. Bernhard, 396 U.S. 531, 538 (1970), nor can Congress conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal. In certain situations, of course, Congress may fashion causes of action that are closely analogous to common-law claims and place them beyond the ambit of the Seventh Amendment by assigning their resolution to a forum in which jury trials are unavailable. See, e. g., Atlas Roofing, supra, at 450-461 (workplace safety regulations); Block v. Hirsh, 256 U.S. 135, 158 (1921) (temporary emergency regulation of rental real estate). See also Pernell v. Southall Realty, 416 U. S., at 382-383 (discussing cases); Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856) (Congress "may or may not bring within the cognizance of the courts of the United States, as it may deem proper," matters involving public rights). Congress' power to do so is limited, however, just as its power to place adjudicative authority in non-Article III tribunals is circumscribed. See Thomas v. *53 Union Carbide Agricultural Products Co., 473 U.S. 568, 589, 593-594 (1985); id., at 598-600 (BRENNAN, J., concurring in judgment); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-76 (1982) (opinion of BRENNAN, J.); id., at 91 (REHNQUIST, J., concurring in judgment). Unless a legal cause of action involves "public rights," Congress may not deprive parties litigating over such a right of the Seventh Amendment's guarantee to a jury trial. In Atlas Roofing, supra, at 458, we noted that Congress may effectively supplant a common-law cause of action carrying with it a right to a jury trial with a statutory cause of action shorn of a jury trial right if that statutory cause of action inheres in, or lies against, the Federal Government in its sovereign capacity. Our case law makes plain, however, that the class of "public rights" whose adjudication Congress may assign to administrative agencies or courts of equity sitting without juries is more expansive than Atlas Roofing's discussion suggests. Indeed, our decisions point to the conclusion that, if a statutory cause of action is legal in nature, the question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal. For if a statutory cause of action, such as respondent's right to recover a fraudulent conveyance under 11 U.S. C. § 548(a)(2), is not a "public right" for Article III purposes, then Congress may not assign its adjudication to a specialized non-Article III court lacking "the essential attributes of the judicial power." Crowell v. Benson, supra, at 51. And if the action must be tried under the auspices of an Article III court, then the Seventh Amendment affords the parties a right to a jury trial whenever the cause of action is legal in nature. Conversely, if Congress may assign the adjudication of a statutory cause of action to a non-Article III tribunal, then the *54 Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder. See, e. g., Atlas Roofing, supra, at 453-455, 460; Pernell v. Southall Realty, supra, at 383; Block v. Hirsh, supra, at 158. In addition to our Seventh Amendment precedents, we therefore rely on our decisions exploring the restrictions Article III places on Congress' choice of adjudicative bodies to resolve disputes over statutory rights to determine whether petitioners are entitled to a jury trial. In our most recent discussion of the "public rights" doctrine as it bears on Congress' power to commit adjudication of a statutory cause of action to a non-Article III tribunal, we rejected the view that "a matter of public rights must at a minimum arise `between the government and others.' " Northern Pipeline Construction Co., supra, at 69 (opinion of BRENNAN, J.), quoting Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). We held, instead, that the Federal Government need not be a party for a case to revolve around "public rights." Thomas v. Union Carbide Agricultural Products Co., 473 U. S., at 586; id., at 596-599 (BRENNAN, J., concurring in judgment). The crucial question, in cases not involving the Federal Government, is whether "Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] create[d] a seemingly `private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Id., at 593-594. See id., at 600 (BRENNAN, J., concurring in judgment) (challenged provision involves public rights because "the dispute arises in the context of a federal regulatory scheme that virtually occupies the field"). If a statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if that right neither belongs to nor exists against the Federal Government, *55 then it must be adjudicated by an Article III court.[10] If the right is legal in nature, then it carries with it the Seventh Amendment's guarantee of a jury trial. B Although the issue admits of some debate, a bankruptcy trustee's right to recover a fraudulent conveyance under 11 U.S. C. § 548(a)(2) seems to us more accurately characterized as a private rather than a public right as we have used those terms in our Article III decisions. In Northern Pipeline Construction Co., 458 U. S., at 71, the plurality noted *56 that the restructuring of debtor-creditor relations in bankruptcy "may well be a `public right.' "[11] But the plurality also emphasized that state-law causes of action for breach of contract or warranty are paradigmatic private rights, even when asserted by an insolvent corporation in the midst of Chapter 11 reorganization proceedings. The plurality further said that "matters from their nature subject to `a suit at common law or in equity or admiralty' " lie at the "protected core" of Article III judicial power, id., at 71, n. 25; see id., at 90 (REHNQUIST, J., concurring in judgment) — a point we reaffirmed in Thomas, supra, at 587. There can be little doubt that fraudulent conveyance actions by bankruptcy trustees — suits which, we said in Schoenthal v. Irving Trust Co., 287 U. S., at 94-95 (citation omitted), "constitute no part of the proceedings in bankruptcy but concern controversies arising out of it" — are quintessentially suits at common law that more nearly resemble state-law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors' hierarchically ordered claims to a pro rata share of the bankruptcy res. See Gibson 1022-1025. They therefore appear matters of private rather than public right.[12] *57 Our decision in Katchen v. Landy, 382 U.S. 323 (1966), under the Seventh Amendment rather than Article III, confirms this analysis. Petitioner, an officer of a bankrupt corporation, made payments from corporate funds within four months of bankruptcy on corporate notes on which he was an accommodation maker. When petitioner later filed claims against the bankruptcy estate, the trustee counterclaimed, arguing that the payments petitioner made constituted voidable preferences because they reduced his potential personal liability on the notes. We held that the bankruptcy court had jurisdiction to order petitioner to surrender the preferences and that it could rule on the trustee's claim without according petitioner a jury trial. Our holding did not depend, however, on the fact that "[bankruptcy] courts are essentially courts of equity" because "they characteristically proceed in summary fashion to deal with the assets of the bankrupt they are administering." Id., at 327. Notwithstanding the fact that bankruptcy courts "characteristically" supervised summary proceedings, they were statutorily invested with jurisdiction at law as well, and could also oversee plenary proceedings. See Atlas Roofing, 430 U. S., at 454, n. 11 (Katchen rested "on the ground that a bankruptcy court, exercising its summary jurisdiction, was a specialized court of equity") (emphasis added); Pepper v. Litton, 308 U.S. 295, 304 (1939) ("[F]or many purposes `courts of bankruptcy are essentially courts of equity' ") (emphasis added). Our decision turned, rather, on the bankruptcy court's having "actual or constructive possession" of the bankruptcy estate, 382 U.S., at 327, and its power and obligation to consider objections by the trustee in deciding whether to allow claims against the estate. Id., at 329-331. Citing Schoenthal v. Irving Trust Co., supra, approvingly, we expressly stated that, if petitioner had not submitted a claim to the bankruptcy court, the trustee could have recovered the preference only by a plenary action, and that petitioner would have *58 been entitled to a jury trial if the trustee had brought a plenary action in federal court. See 382 U.S., at 327-328. We could not have made plainer that our holding in Schoenthal retained its vitality: "[A]lthough petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee, Schoenthal v. Irving Trust Co., 287 U.S. 92, when the same issue arises as part of the process of allowance and disallowance of claims, it is triable in equity." Id., at 336.[13] Unlike JUSTICE WHITE, see post, at 72-75, 78, we do not view the Court's conclusion in Katchen as resting on an accident of statutory history. We read Schoenthal and Katchen as holding that, under the Seventh Amendment, a creditor's right to a jury trial on a bankruptcy trustee's preference claim depends upon whether the creditor has submitted a claim against the estate, not upon Congress' precise definition of the "bankruptcy estate" or upon whether Congress chanced to deny jury trials to creditors who have not filed claims and who are sued by a trustee to recover an alleged preference. Because petitioners here, like the petitioner in Schoenthal, have not filed claims against the estate, respondent's fraudulent conveyance action does not arise "as part of the process of allowance and disallowance of claims." Nor is that action integral to the restructuring of debtor-creditor relations. Congress therefore cannot divest petitioners of *59 their Seventh Amendment right to a trial by jury. Katchen thus supports the result we reach today; it certainly does not compel its opposite.[14] *60 The 1978 Act abolished the statutory distinction between plenary and summary bankruptcy proceedings, on which the Court relied in Schoenthal and Katchen. Although the 1978 Act preserved parties' rights to jury trials as they existed prior to the day it took effect, 28 U.S. C. § 1480(a) (repealed), in the 1984 Amendments Congress drew a new distinction between "core" and "non-core" proceedings and classified fraudulent conveyance actions as core proceedings triable by bankruptcy judges. 28 U.S. C. § 157(b)(2)(H) (1982 ed., Supp. V). Whether 28 U.S. C. § 1411 (1982 ed., Supp. V) purports to abolish jury trial rights in what were formerly plenary actions is unclear, and at any rate is not a question we need decide here. See supra, at 40-41, n. 3. The decisive point is that in neither the 1978 Act nor the 1984 Amendments did Congress "creat[e] a new cause of action, and remedies therefor, unknown to the common law," because traditional rights and remedies were inadequate to cope with a manifest public problem. Atlas Roofing, 430 U. S., at 461. Rather, Congress simply reclassified a pre-existing, common-law cause of action that was not integrally related to the reformation of debtor-creditor relations[15] and *61 that apparently did not suffer from any grave deficiencies. This purely taxonomic change cannot alter our Seventh Amendment analysis. Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity. See Gibson 1022-1025. Nor can Congress' assignment be justified on the ground that jury trials of fraudulent conveyance actions would "go far to dismantle the statutory scheme," Atlas Roofing, 430 U. S., at 454, n. 11, or that bankruptcy proceedings have been placed in "an administrative forum with which the jury would be incompatible." Id., at 450. To be sure, we owe some deference to Congress' judgment after it has given careful consideration to the constitutionality of a legislative provision. See Northern Pipeline Construction Co., 458 U. S., at 61 (opinion of BRENNAN, J.). But respondent has adduced no evidence that Congress considered the constitutional implications of its designation of all fraudulent conveyance actions as core proceedings. Nor can it seriously be argued that permitting jury trials in fraudulent conveyance actions brought by a trustee against a person who has not entered a claim against the estate would "go far to dismantle the statutory scheme," as we used that phrase in Atlas Roofing, when our opinion in that case, following Schoenthal, plainly assumed that such claims carried with them a right to a jury trial.[16] In addition, one cannot easily say that "the *62 jury would be incompatible" with bankruptcy proceedings, in view of Congress' express provision for jury trials in certain actions arising out of bankruptcy litigation. See 28 U.S. C. § 1411 (1982 ed., Supp. V); Gibson 1024-1025; Warner, Katchen Up in Bankruptcy: The New Jury Trial Right, 63 Am. Bankr. L. J. 1, 48 (1989) (hereinafter Warner). And JUSTICE WHITE's claim that juries may serve usefully as checks only on the decisions of judges who enjoy life tenure, see *63 post, at 82-83, overlooks the extent to which judges who are appointed for fixed terms may be beholden to Congress or Executive officials, and thus ignores the potential for juries to exercise beneficial restraint on their decisions. It may be that providing jury trials in some fraudulent conveyance actions — if not in this particular case, because respondent's suit was commenced after the Bankruptcy Court approved the debtor's plan of reorganization — would impede swift resolution of bankruptcy proceedings and increase the expense of Chapter 11 reorganizations.[17] But "these considerations are insufficient to overcome the clear command of the Seventh Amendment." Curtis v. Loether, 415 U. S., at 198. See also Bowsher v. Synar, 478 U.S. 714, 736 (1986) (" `[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution' "), quoting INS v. Chadha, 462 U.S. 919, 944 (1983); Pernell v. Southall Realty, 416 U. S., at 383-384 (discounting arguments that jury trials would be unduly burdensome and rejecting "the notion that there is some necessary *64 inconsistency between the desire for speedy justice and the right to jury trial").[18] V We do not decide today whether the current jury trial provision — 28 U.S. C. § 1411 (1982 ed., Supp. V) — permits bankruptcy courts to conduct jury trials in fraudulent conveyance actions like the one respondent initiated. Nor do we express any view as to whether the Seventh Amendment or Article III allows jury trials in such actions to be held before non-Article III bankruptcy judges subject to the oversight provided by the district courts pursuant to the 1984 Amendments. We leave those issues for future decisions.[19] We do hold, however, that whatever the answers to these questions, the Seventh Amendment entitles petitioners to the jury trial they requested. Accordingly, the judgment of *65A the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *65B JUSTICE SCALIA, concurring in part and concurring in the judgment.

The question presented is whether a person who has not submitted a claim against a bankruptcy has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer. We hold that the Seventh Amendment entitles such a person to a trial by jury, notwithstanding Congress' designation of fraudulent conveyance actions as "core proceedings" in 28 U.S. C. 157(b)(2)(H) (1982 ed., Supp. V). I The Chase & Sanborn Corporation filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in 1983. A plan of reorganization approved by the United States Bankruptcy Court for the Southern District of Florida vested in respondent Nordberg, the trustee in bankruptcy, causes of action for fraudulent conveyances. App. to Pet. for Cert. 37. In respondent filed suit against petitioners Granfinanciera, S. A., and Medex, Ltda., in the United States District Court for the Southern District of Florida. The complaint alleged that petitioners had received $1.7 million from Chase & Sanborn's corporate predecessor within one year of the date its bankruptcy petition was filed, without receiving consideration or reasonably equivalent value in return. Respondent sought to avoid what he alleged were constructively and actually fraudulent transfers and to recover damages, costs, expenses, and interest under 11 U.S. C. 548(a)(1) and (a)(2), 550(a)(1) (1982 ed. and Supp. V). App. to Pet. for Cert. 41. The District Court referred the proceedings to the Bankruptcy Court. Over five months later, and shortly before the Colombian Government nationalized Granfinanciera, respondent *37 served a summons on petitioners in Bogota, Colombia. In their answer to the complaint following Granfinanciera's nationalization, both petitioners requested a "trial by jury on all issues so triable." App. 7. The Bankruptcy Judge denied petitioners' request for a jury trial, deeming a suit to recover a fraudulent transfer "a core action that originally, under the English common law, as I understand it, was a non-jury issue." App. to Pet. for Cert. 34. Following a bench trial, the court dismissed with prejudice respondent's actual fraud claim but entered judgment for respondent on the constructive fraud claim in the amount of $1,000 against Granfinanciera and $180,000 against Medex. The District Court affirmed without discussing petitioners' claim that they were entitled to a jury trial. The Court of Appeals for the Eleventh Circuit also affirmed. The court found that petitioners lacked a statutory right to a jury trial, because the constructive fraud provision under which suit was brought — 11 U.S. C. 548(a)(2) (1982 ed., Supp. V) — contains no mention of a right to a jury trial, and 28 U.S. C. 1411 (1982 ed., Supp. V) "affords jury trials only in personal injury or wrongful death suits." The Court of Appeals further ruled that the Seventh Amendment supplied no right to a jury trial, because actions to recover fraudulent conveyances are equitable in nature, even when a plaintiff seeks only monetary relief, and because "bankruptcy itself is equitable in nature and thus bankruptcy proceedings are inherently equitable." The court read our opinion in to say that "Congress may convert a creditor's legal right into an equitable claim and displace any seventh amendment right to trial by jury," and held that Congress had done so by designating fraudulent conveyance actions "core proceedings" triable by bankruptcy judges sitting without juries. 835 F.2d, *38 We granted certiorari to decide whether petitioners were entitled to a jury trial, and now reverse. II Before considering petitioners' claim to a jury trial, we must confront a preliminary argument. Respondent contends that the judgment below should be affirmed with respect to Granfinanciera — though not Medex — because Granfinanciera was a commercial instrumentality of the Colombian Government when it made its request for a jury trial. Respondent argues that the Seventh Amendment preserves only those jury trial rights recognized in England at common law in the late 18th century, and that foreign sovereigns and their instrumentalities were immune from suit at common law. Suits against foreign sovereigns are only possible, respondent asserts, in accordance with the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S. C. 1330, 1602-1611, and respondent reads 1330(a)[1] to prohibit trial by jury of a case against a foreign state. Respondent concludes that Granfinanciera has no right to a jury trial, regardless of the merits of Medex's Seventh Amendment claim. We decline to address this argument because respondent failed to raise it below and because the question it poses has not been adequately briefed and argued. Without cross-petitioning for certiorari, a prevailing party may, of course, "defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals," provided that an affirmance on the alternative ground would neither expand nor contract the rights of either party established by the judgment below. See, e. g., ; United Respondent's present defense of the judgment, however, is not one he advanced below.[2] Although "we could consider grounds supporting [the] judgment different from those on which the Court of Appeals rested its decision," "where the ground presented here has not been raised below we exercise this authority `only in exceptional cases.' " quoting This is not such an exceptional case. Not only do we lack guidance from the District Court or the Court of Appeals on this issue, but difficult questions remain whether a jury trial is available to a foreign state upon request under 28 U.S. C. 1330 and, if not, under what circumstances a business enterprise that has since become an arm of a foreign state may be entitled to a jury trial. Compare Gould, (jurisdiction under 28 U.S. C. 1330 determined by party's status when act complained of occurred); Morgan Guaranty Trust of N. (status at time complaint was filed is decisive for 1330 jurisdiction), with ; cert. denied, Moreover, petitioners alleged in their reply brief, without contradiction by respondent at oral argument, that affirmance on the ground that respondent now urges would "unquestionably enlarge the respondent's rights under the circuit court's decision and concomitantly decrease those of the petitioner" by "open[ing] up new areas of discovery in aid of execution" and by allowing respondent, for the first time, to recover any judgment he wins against Granfinanciera from Colombia's central banking institutions and possibly those of other Colombian governmental instrumentalities. Reply Brief for Petitioners 19. Whatever the merits of these claims, their plausibility, coupled with respondent's failure to offer rebuttal, furnishes an additional reason not to consider respondent's novel argument in support of the judgment at this late stage in the litigation. We therefore leave for another day the questions respondent's argument raises under the FSIA. III Petitioners rest their claim to a jury trial on the Seventh Amendment alone.[3] The Seventh Amendment provides: "In *41 Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." We have consistently interpreted the phrase "Suits at common law" to refer to "suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Although "the thrust of the *42 Amendment was to preserve the right to jury trial as it existed in 1791," the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty. The form of our analysis is familiar. "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." The second stage of this analysis is more important than the first. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.[4] *43 A There is no dispute that actions to recover preferential or fraudulent transfers were often brought at law in late 18th-century England. As we noted in (2) : "In England, long prior to the enactment of our first Judiciary Act, common law actions of trover and money had and received were resorted to for the recovery of preferential payments by bankrupts." See, e. g., Smith v. Payne, 6 T. R. 152, 101 Eng. Rep. 484 (K. B. 1795) (trover); Barnes v. Freeland, 6 T. R. 80, 101 Eng. Rep. (K. B. 17) (trover); Smith v. Hodson, 4 T. R. 211, 100 Eng. Rep. 979 (K. B. 1791) (assumpsit; goods sold and delivered); Vernon v. Hanson, 2 T. R. 287, 100 Eng. Rep. 156 (K. B. 1788) (assumpsit; money had and received); Thompson v. Freeman, 1 T. R. 155, 99 Eng. Rep. 1026 (K. B. 1786) (trover); Rust v. Cooper, 2 Cowp. 629, 98 Eng. Rep. 1277 (K. B. 1777) (trover); Harman v. Fishar, 1 Cowp. 117, 98 Eng. Rep. 998 (K. B. 1774) (trover); Martin v. Pewtress, 4 Burr. 2477, 98 Eng. Rep. 299 (K. B. 1769) (trover); Alderson v. Temple, 4 Burr. 2235, 98 Eng. Rep. 165 (K. B. 1768) (trover). These actions, like all suits at law, were conducted before juries. Respondent does not challenge this proposition or even contend that actions to recover fraudulent conveyances or preferential transfers were more than occasionally tried in courts of equity. He asserts only that courts of equity had concurrent jurisdiction with courts of law over fraudulent conveyance actions. Brief for Respondent 37-38. While respondent's assertion that courts of equity sometimes provided relief in fraudulent conveyance actions is true, however, it hardly suffices to undermine petitioners' submission that the present action for monetary relief would not have sounded in equity 200 years ago in England. In at we contrasted suits at law with "those where equitable rights alone were recognized" in holding that the Seventh Amendment right to a jury *44 trial applies to all but the latter actions. Respondent adduces no authority to buttress the claim that suits to recover an allegedly fraudulent transfer of money, of the sort that he has brought, were typically or indeed ever entertained by English courts of equity when the Seventh Amendment was adopted. In fact, prior decisions of this Court, see, e. g., and scholarly authority compel the contrary conclusion: "[W]hether the trustee's suit should be at law or in equity is to be judged by the same standards that are applied to any other owner of property which is wrongfully withheld. If the subject matter is a chattel, and is still in the grantee's possession, an action in trover or replevin would be the trustee's remedy; and if the fraudulent transfer was of cash, the trustee's action would be for money had and received. Such actions at law are as available to the trustee to-day as they were in the English courts of long ago. If, on the other hand, the subject matter is land or an intangible, or the trustee needs equitable aid for an accounting or the like, he may invoke the equitable process, and that also is beyond dispute." 1 G. Glenn, Fraudulent Conveyances and Preferences 98, pp. 183-184 (footnotes omitted). The two cases respondent discusses confirm this account of English practice. Ex parte Scudamore, 3 Ves. jun. 85, 30 Eng. Rep. 907 (Ch. 1796), involved the debtor's assignment of his share of a law partnership's receivables to repay a debt shortly before the debtor was declared bankrupt. Other creditors petitioned chancery for an order directing the debtor's law partner to hand over for general distribution among creditors the debtor's current and future shares of the partnership's receivables, which he held in trust for the assignee. The Chancellor refused to do so, finding the proposal inequitable. Instead, he directed the creditors to bring an action at law against the assignee if they thought themselves entitled *45 to relief. Although this case demonstrates that fraudulent conveyance actions could be brought in equity, it does not show that suits to recover a definite sum of money would be decided by a court of equity when a petitioner did not seek distinctively equitable remedies. The creditors in Ex parte Scudamore asked the Chancellor to provide injunctive relief by ordering the debtor's former law partner to convey to them the debtor's share of the partnership's receivables that came into his possession in the future, along with receivables he then held in trust for the debtor. To the extent that they asked the court to order relinquishment of a specific preferential transfer rather than ongoing equitable relief, the Chancellor dismissed their suit and noted that the proper means of recovery would be an action at law against the transferee. Respondent's own cause of action is of precisely that sort. Hobbs v. Hull, 1 Cox 445, 29 Eng. Rep. 1242 (Ch. 1788), also fails to advance respondent's case. The assignees in bankruptcy there sued to set aside an alleged fraudulent conveyance of real in trust by a husband to his wife, in return for her relinquishment of a cause of action in divorce upon discovering his adultery. The court dismissed the suit, finding that the transfer was not fraudulent, and allowed the assignees to bring an ejectment or other legal action in the law courts. The salient point is that the bankruptcy assignees sought the traditional equitable remedy of setting aside a conveyance of land in trust, rather than the recovery of money or goods, and that the court refused to decide their legal claim to ejectment once it had ruled that no equitable remedy would lie. The court's sweeping statement that "Courts of Equity have most certainly been in the habit of exercising a concurrent jurisdiction with the Courts of Law on the statutes of Elizabeth respecting fraudulent conveyances," 30 Eng. Rep., at 1242, is not supported by reference to any cases that sought the recovery of a fixed sum of money without the need for an accounting or *46 other equitable relief. Nor has respondent repaired this deficit.[5] We therefore conclude that respondent would have had to bring his action to recover an alleged fraudulent conveyance *47 of a determinate sum of money at law in 18th-century England, and that a court of equity would not have adjudicated it.[6] B The nature of the relief respondent seeks strongly supports our preliminary finding that the right he invokes should be denominated legal rather than equitable. Our decisions establish beyond peradventure that "[i]n cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of *48 damages, when the like amount can be recovered at law in an action sounding in tort or for money had and received." citing ; ; See also Atlas ; quoting ; Dairy Queen, ; Indeed, in our view (2), removes all doubt that respondent's cause of action should be characterized as legal rather than as equitable. In Schoenthal, the trustee in bankruptcy sued in equity to recover alleged preferential payments, claiming that it had no adequate remedy at law. As in this case, the recipients of the payments apparently did not file claims against the bankruptcy The Court held that the suit had to proceed at law instead, because the long-settled rule that suits in equity will not be sustained where a complete remedy exists at law, then codified at 28 U.S. C. 384, "serves to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed." 287 U.S., at The Court found that the trustee's suit — indistinguishable from respondent's suit in all relevant respects — could not go forward in equity because an adequate remedy *49 was available at law. There, as here, "[t]he preferences sued for were money payments of ascertained and definite amounts," and "[t]he bill discloses no facts that call for an accounting or other equitable relief." Respondent's fraudulent conveyance action plainly seeks relief traditionally provided by law courts or on the law side of courts having both legal and equitable dockets.[7] Unless Congress may and has permissibly withdrawn jurisdiction over that action by courts of law and assigned it exclusively to non-Article III tribunals sitting without juries, the Seventh Amendment guarantees petitioners a jury trial upon request. IV Prior to passage of the Bankruptcy Reform Act of 1978, Stat. 2549 (1978 Act), "[s]uits to recover preferences constitute[d] no part of the proceedings in bankruptcy." *50 at -95. Although related to bankruptcy proceedings, fraudulent conveyance and preference actions brought by a trustee in bankruptcy were deemed separate, plenary suits to which the Seventh Amendment applied. While the 1978 Act brought those actions within the jurisdiction of the bankruptcy courts, it preserved parties' rights to trial by jury as they existed prior to the effective date of the 1978 Act. 28 U.S. C. 1480(a) (repealed). The Amendments, however, designated fraudulent conveyance actions "core proceedings," 28 U.S. C. 157(b)(2)(H) (1982 ed., Supp. V), which bankruptcy judges may adjudicate and in which they may issue final judgments, 157(b)(1), if a district court has referred the matter to them, 157(a). We are not obliged to decide today whether bankruptcy courts may conduct jury trials in fraudulent conveyance suits brought by a trustee against a person who has not entered a claim against the either in the rare procedural posture of this case, see or under the current statutory scheme, see 28 U.S. C. 1411 (1982 ed., Supp. V). Nor need we decide whether, if Congress has authorized bankruptcy courts to hold jury trials in such actions, that authorization comports with Article III when non-Article III judges preside over the actions subject to review in, or withdrawal by, the district courts. We also need not consider whether jury trials conducted by a bankruptcy court would satisfy the Seventh Amendment's command that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law," given that district courts may presently set aside clearly erroneous factual findings by bankruptcy courts. Bkrtcy. Rule 8013. The sole issue before us is whether the Seventh Amendment confers on petitioners a right to a jury trial in the face of Congress' decision to allow a non-Article III tribunal to adjudicate the claims against them. * A In Atlas we noted that "when Congress creates new statutory `public rights,' it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be `preserved' in `suits at common law.' " We emphasized, however, that Congress' power to block application of the Seventh Amendment to a cause of action has limits. Congress may only deny trials by jury in actions at law, we said, in cases where "public rights" are litigated: "Our prior cases support administrative factfinding in only those situations involving `public rights,' e. g., where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights. Wholly private tort, contract, and property cases, as well as a vast range of other cases, are not at all implicated."[8] We adhere to that general teaching. As we said in Atlas : " `On the common law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.' " at n. 7, quoting (2). Congress may devise novel causes of action involving public rights free from the strictures of the Seventh Amendment if it assigns their adjudication to tribunals without statutory authority to employ juries as factfinders.[9] But it lacks the power to strip parties *52 contesting matters of private right of their constitutional right to a trial by jury. As we recognized in Atlas to hold otherwise would be to permit Congress to eviscerate the Seventh Amendment's guarantee by assigning to administrative agencies or courts of equity all causes of action not grounded in state law, whether they originate in a newly fashioned regulatory scheme or possess a long line of common-law forebears. -458. The Constitution nowhere grants Congress such puissant authority. "[L]egal claims are not magically converted into equitable issues by their presentation to a court of equity," nor can Congress conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal. In certain situations, of course, Congress may fashion causes of action that are closely analogous to common-law claims and place them beyond the ambit of the Seventh Amendment by assigning their resolution to a forum in which jury trials are unavailable. See, e. g., Atlas at -461 ; See also -383 ; Murray's Lessee v. Hoboken Land & Improvement Congress' power to do so is limited, however, just as its power to place adjudicative authority in non-Article III tribunals is circumscribed. See v. *53 Union Carbide Agricultural Products 589, 593-5 ; ; Northern Pipeline Construction v. Marathon Pipe Line ; Unless a legal cause of action involves "public rights," Congress may not deprive parties litigating over such a right of the Seventh Amendment's guarantee to a jury trial. In Atlas we noted that Congress may effectively supplant a common-law cause of action carrying with it a right to a jury trial with a statutory cause of action shorn of a jury trial right if that statutory cause of action inheres in, or lies against, the Federal Government in its sovereign capacity. Our case law makes plain, however, that the class of "public rights" whose adjudication Congress may assign to administrative agencies or courts of equity sitting without juries is more expansive than Atlas 's discussion suggests. Indeed, our decisions point to the conclusion that, if a statutory cause of action is legal in nature, the question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal. For if a statutory cause of action, such as respondent's right to recover a fraudulent conveyance under 11 U.S. C. 548(a)(2), is not a "public right" for Article III purposes, then Congress may not assign its adjudication to a specialized non-Article III court lacking "the essential attributes of the judicial power." at And if the action must be tried under the auspices of an Article III court, then the Seventh Amendment affords the parties a right to a jury trial whenever the cause of action is legal in nature. Conversely, if Congress may assign the adjudication of a statutory cause of action to a non-Article III tribunal, then the *54 Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder. See, e. g., Atlas ; ; at In addition to our Seventh Amendment precedents, we therefore rely on our decisions exploring the restrictions Article III places on Congress' choice of adjudicative bodies to resolve disputes over statutory rights to determine whether petitioners are entitled to a jury trial. In our most recent discussion of the "public rights" doctrine as it bears on Congress' power to commit adjudication of a statutory cause of action to a non-Article III tribunal, we rejected the view that "a matter of public rights must at a minimum arise `between the government and others.' " Northern Pipeline Construction quoting Ex parte Bakelite Corp., 4 We held, instead, that the Federal Government need not be a party for a case to revolve around "public rights." v. Union Carbide Agricultural Products ; The crucial question, in cases not involving the Federal Government, is whether "Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] create[d] a seemingly `private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." at 593-5. See (challenged provision involves public rights because "the dispute arises in the context of a federal regulatory scheme that virtually occupies the field"). If a statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if that right neither belongs to nor exists against the Federal Government, *55 then it must be adjudicated by an Article III court.[10] If the right is legal in nature, then it carries with it the Seventh Amendment's guarantee of a jury trial. B Although the issue admits of some debate, a bankruptcy trustee's right to recover a fraudulent conveyance under 11 U.S. C. 548(a)(2) seems to us more accurately characterized as a private rather than a public right as we have used those terms in our Article III decisions. In Northern Pipeline Construction the plurality noted *56 that the restructuring of debtor-creditor relations in bankruptcy "may well be a `public right.' "[11] But the plurality also emphasized that state-law causes of action for breach of contract or warranty are paradigmatic private rights, even when asserted by an insolvent corporation in the midst of Chapter 11 reorganization proceedings. The plurality further said that "matters from their nature subject to `a suit at common law or in equity or admiralty' " lie at the "protected core" of Article III judicial power, ; see — a point we reaffirmed in There can be little doubt that fraudulent conveyance actions by bankruptcy trustees — suits which, we said in 287 U. S., at -95 "constitute no part of the proceedings in bankruptcy but concern controversies arising out of it" — are quintessentially suits at common law that more nearly resemble state-law contract claims brought by a bankrupt corporation to augment the bankruptcy than they do creditors' hierarchically ordered claims to a pro rata share of the bankruptcy res. See Gibson 1022-1025. They therefore appear matters of private rather than public right.[12] *57 Our decision in under the Seventh Amendment rather than Article III, confirms this analysis. Petitioner, an officer of a bankrupt corporation, made payments from corporate funds within four months of bankruptcy on corporate notes on which he was an accommodation maker. When petitioner later filed claims against the bankruptcy the trustee counterclaimed, arguing that the payments petitioner made constituted voidable preferences because they reduced his potential personal liability on the notes. We held that the bankruptcy court had jurisdiction to order petitioner to surrender the preferences and that it could rule on the trustee's claim without according petitioner a jury trial. Our holding did not depend, however, on the fact that "[bankruptcy] courts are essentially courts of equity" because "they characteristically proceed in summary fashion to deal with the assets of the bankrupt they are administering." Notwithstanding the fact that bankruptcy courts "characteristically" supervised summary proceedings, they were statutorily invested with jurisdiction at law as well, and could also oversee plenary proceedings. See Atlas 430 U. S., at ; (9) Our decision turned, rather, on the bankruptcy court's having "actual or constructive possession" of the bankruptcy 382 U.S., and its power and obligation to consider objections by the trustee in deciding whether to allow claims against the Citing approvingly, we expressly stated that, if petitioner had not submitted a claim to the bankruptcy court, the trustee could have recovered the preference only by a plenary action, and that petitioner would have *58 been entitled to a jury trial if the trustee had brought a plenary action in federal court. See 382 U.S., -328. We could not have made plainer that our holding in Schoenthal retained its vitality: "[A]lthough petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee, when the same issue arises as part of the process of allowance and disallowance of claims, it is triable in equity."[13] Unlike JUSTICE WHITE, see post, at 72-75, 78, we do not view the Court's conclusion in Katchen as resting on an accident of statutory history. We read Schoenthal and Katchen as holding that, under the Seventh Amendment, a creditor's right to a jury trial on a bankruptcy trustee's preference claim depends upon whether the creditor has submitted a claim against the not upon Congress' precise definition of the "bankruptcy " or upon whether Congress chanced to deny jury trials to creditors who have not filed claims and who are sued by a trustee to recover an alleged preference. Because petitioners here, like the petitioner in Schoenthal, have not filed claims against the respondent's fraudulent conveyance action does not arise "as part of the process of allowance and disallowance of claims." Nor is that action integral to the restructuring of debtor-creditor relations. Congress therefore cannot divest petitioners of *59 their Seventh Amendment right to a trial by jury. Katchen thus supports the result we reach today; it certainly does not compel its opposite.[14] *60 The 1978 Act abolished the statutory distinction between plenary and summary bankruptcy proceedings, on which the Court relied in Schoenthal and Katchen. Although the 1978 Act preserved parties' rights to jury trials as they existed prior to the day it took effect, 28 U.S. C. 1480(a) (repealed), in the Amendments Congress drew a new distinction between "core" and "non-core" proceedings and classified fraudulent conveyance actions as core proceedings triable by bankruptcy judges. 28 U.S. C. 157(b)(2)(H) (1982 ed., Supp. V). Whether 28 U.S. C. 1411 (1982 ed., Supp. V) purports to abolish jury trial rights in what were formerly plenary actions is unclear, and at any rate is not a question we need decide here. See The decisive point is that in neither the 1978 Act nor the Amendments did Congress "creat[e] a new cause of action, and remedies therefor, unknown to the common law," because traditional rights and remedies were inadequate to cope with a manifest public problem. Atlas Rather, Congress simply reclassified a pre-existing, common-law cause of action that was not integrally related to the reformation of debtor-creditor relations[15] and *61 that apparently did not suffer from any grave deficiencies. This purely taxonomic change cannot alter our Seventh Amendment analysis. Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency or a specialized court of equity. See Gibson 1022-1025. Nor can Congress' assignment be justified on the ground that jury trials of fraudulent conveyance actions would "go far to dismantle the statutory scheme," Atlas 430 U. S., at or that bankruptcy proceedings have been placed in "an administrative forum with which the jury would be incompatible." at To be sure, we owe some deference to Congress' judgment after it has given careful consideration to the constitutionality of a legislative provision. See Northern Pipeline Construction But respondent has adduced no evidence that Congress considered the constitutional implications of its designation of all fraudulent conveyance actions as core proceedings. Nor can it seriously be argued that permitting jury trials in fraudulent conveyance actions brought by a trustee against a person who has not entered a claim against the would "go far to dismantle the statutory scheme," as we used that phrase in Atlas when our opinion in that case, following Schoenthal, plainly assumed that such claims carried with them a right to a jury trial.[16] In addition, one cannot easily say that "the *62 jury would be incompatible" with bankruptcy proceedings, in view of Congress' express provision for jury trials in certain actions arising out of bankruptcy litigation. See 28 U.S. C. 1411 (1982 ed., Supp. V); Gibson 1024-1025; Warner, Katchen Up in Bankruptcy: The New Jury Trial Right, 63 Am. Bankr. L. J. 1, 48 (1989) (hereinafter Warner). And JUSTICE WHITE's claim that juries may serve usefully as checks only on the decisions of judges who enjoy life tenure, see *63 post, at 82-83, overlooks the extent to which judges who are appointed for fixed terms may be beholden to Congress or Executive officials, and thus ignores the potential for juries to exercise beneficial restraint on their decisions. It may be that providing jury trials in some fraudulent conveyance actions — if not in this particular case, because respondent's suit was commenced after the Bankruptcy Court approved the debtor's plan of reorganization — would impede swift resolution of bankruptcy proceedings and increase the expense of Chapter 11 reorganizations.[17] But "these considerations are insufficient to overcome the clear command of the Seventh Amendment." See also quoting 4 ; 416 U. S., -384[18] V We do not decide today whether the current jury trial provision — 28 U.S. C. 1411 (1982 ed., Supp. V) — permits bankruptcy courts to conduct jury trials in fraudulent conveyance actions like the one respondent initiated. Nor do we express any view as to whether the Seventh Amendment or Article III allows jury trials in such actions to be held before non-Article III bankruptcy judges subject to the oversight provided by the district courts pursuant to the Amendments. We leave those issues for future decisions.[19] We do hold, however, that whatever the answers to these questions, the Seventh Amendment entitles petitioners to the jury trial they requested. Accordingly, the judgment of *65A the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *65B JUSTICE SCALIA, concurring in part and concurring in the judgment.

Justice Scalia

dissenting

Simmons v. South Carolina

https://www.courtlistener.com/opinion/117854/simmons-v-south-carolina/

https://www.courtlistener.com/api/rest/v3/clusters/117854/

1993-074

Today's judgment certainly seems reasonable enough as a determination of what a capital sentencing jury should be permitted to consider. That is not, however, what it purports to be. It purports to be a determination that any capital sentencing scheme that does not permit jury consideration of such material is so incompatible with our national traditions of criminal procedure that it violates the Due Process Clause of the Constitution of the United States. There is really no basis for such a pronouncement, neither in *179 any near uniform practice of our people, nor in the jurisprudence of this Court. With respect to the former I shall discuss only current practice, since the parties and amici have addressed only that, and since traditional practice may be relatively uninformative with regard to the new schemes of capital sentencing imposed upon the States by this Court's recent jurisprudence. The overwhelming majority of the 32 States that permit juries to impose or recommend capital sentences do not allow specific information regarding parole to be given to the jury. To be sure, in many of these States the sentencing choices specifically include "life without parole," so that the jury charge itself conveys the information whether parole is available. In at least eight of those States, however, the jury's choice is not merely between "life without parole" and "death," but among some variation of (parole eligible) "life," "life without parole," and "death"[1]—so that the precise date of availability of parole is relevant to the jury's choice. Moreover, even among those States that permit the jury to choose only between "life" (unspecified) and "death," South Carolina is not alone in keeping parole information from the jury. Four other States in widely separated parts of the country follow that same course,[2] and there are other States that lack *180 any clear practice.[3] By contrast, the parties and their amici point to only 10 States that arguably employ the procedure which, according to today's opinions, the Constitution requires.[4] This picture of national practice falls far short of demonstrating a principle so widely shared that it is part of even a current and temporary American consensus. As for our prior jurisprudence: The opinions of Justice Blackmun and Justice O'Connor rely on the Fourteenth Amendment's guarantee of due process, rather than on the Eighth Amendment's "cruel and unusual punishments" prohibition, as applied to the States by the Fourteenth Amendment. But cf. ante, at 172 (Souter, J., concurring). The prior law applicable to that subject indicates that petitioner's due process rights would be violated if he was "sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " Skipper v. South Carolina, 476 U.S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U.S. 349, 362 (1977). Both opinions try to bring this case within that description, but it does not fit. The opinions paint a picture of a prosecutor who repeatedly stressed that petitioner would pose a threat to society upon his release. The record tells a different story. *181 Rather than emphasizing future dangerousness as a crucial factor, the prosecutor stressed the nature of petitioner's crimes: the crime that was the subject of the prosecution, the brutal murder of a 79-year-old woman in her home, and three prior crimes confessed to by petitioner, all rapes and beatings of elderly women, one of them his grandmother. I am sure it was the sheer depravity of those crimes, rather than any specific fear for the future, which induced the South Carolina jury to conclude that the death penalty was justice. Not only, moreover, was future dangerousness not emphasized, but future dangerousness outside of prison was not even mentioned. The trial judge undertook specifically to prevent that, in response to the broader request of petitioner's counsel that the prosecutor be prevented from arguing future dangerousness at all: "Obviously, I will listen carefully to the argument of the solicitor to see if it contravenes the actual factual circumstance. Certainly, I recognize the right of the State to argue concerning the defendant's dangerous propensity. I will not allow the solicitor, for example, to say to the jury anything that would indicate that the defendant is not going to be jailed for the period of time that is encompassed within the actual law. The fact that we do not submit the parole eligibility to the jury does not negate the fact that the solicitor must stay within the trial record." App. 56-57. As I read the record, the prosecutor followed this admonition—and the Due Process Clause requires nothing more. Both Justice Blackmun and Justice O'Connor focus on two portions of the prosecutor's final argument to the jury in the sentencing phase. First, they stress that the prosecutor asked the jury to answer the question of "what to do with [petitioner] now that he is in our midst." That statement, however, was not made (as they imply) in the course of an argument about future dangerousness, but was a response to *182 petitioner's mitigating evidence. Read in context, the statement is not even relevant to the issue in this case: "The defense in this case as to sentence . . . [is] a diversion. It's putting the blame on society, on his father, on his grandmother, on whoever else he can, spreading it out to avoid that personal responsibility. That he came from a deprived background. That he didn't have all of the breaks in life and certainly that helps shape someone. But we are not concerned about how he got shaped. We are concerned about what to do with him now that he is in our midst." Id. , at 110. Both opinions also seize upon the prosecutor's comment that the jury's verdict would be "an act of self-defense." That statement came at the end of admonition of the jury to avoid emotional responses and enter a rational verdict: "Your verdict shouldn't be returned in anger. Your verdict shouldn't be an emotional catharsis. Your verdict shouldn't be . . . a response to that eight-year-old kid [testifying in mitigation] and really shouldn't be a response to the gruesome grotesque handiwork of [petitioner]. Your verdict should be a response of society to someone who is a threat. Your verdict will be an act of self-defense." Id. , at 109-110. This reference to "self-defense" obviously alluded, neither to defense of the jurors' own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be. Thus, as I read the record (and bear in mind that the trial judge was on the lookout with respect to this point), the prosecutor did not invite the jury to believe that petitioner would be eligible for parole—he did not mislead the jury. The rule the majority adopts in order to overturn this sentence therefore goes well beyond what would be necessary to counteract prosecutorial misconduct (a disposition with *183 which I might agree). It is a rule at least as sweeping as this: that the Due Process Clause overrides state law limiting the admissibility of information concerning parole whenever the prosecution argues future dangerousness. Justice Blackmun appears to go even further, requiring the admission of parole ineligibility even when the prosecutor does not argue future dangerousness. See ante, at 163-164; but see ante, at 174 (Ginsburg, J., concurring). I do not understand the basis for this broad prescription. As a general matter, the Court leaves it to the States to strike what they consider the appropriate balance among the many factors— probative value, prejudice, reliability, potential for confusion, among others—that determine whether evidence ought to be admissible. Even in the capital punishment context, the Court has noted that "the wisdom of the decision to permit juror consideration of [postsentencing contingencies] is best left to the States." California v. Ramos, 463 U.S. 992, 1014 (1983). "[T]he States, and not this Court, retain `the traditional authority' to determine what particular evidence . . . is relevant." Skipper v. South Carolina, 476 U. S., at 11 (Powell, J., concurring in judgment). One reason for leaving it that way is that a sensible code of evidence cannot be invented piecemeal. Each item cannot be considered in isolation, but must be given its place within the whole. Preventing the defense from introducing evidence regarding parolability is only half of the rule that prevents the prosecution from introducing it as well. If the rule is changed for defendants, many will think that evenhandedness demands a change for prosecutors as well. State's attorneys ought to be able to say that if, ladies and gentlemen of the jury, you do not impose capital punishment upon this defendant (or if you impose anything less than life without parole) he may be walking the streets again in eight years! Many would not favor the admission of such an argument—but would prefer it to a state scheme in which defendants can call attention to the unavailability of parole, but prosecutors cannot note *184 its availability. This Court should not force state legislators into such a difficult choice unless the isolated state evidentiary rule that the Court has before it is not merely less than ideal, but beyond a high threshold of unconstitutionality. The low threshold the Court constructs today is difficult to reconcile with our almost simultaneous decision in Romano v. Oklahoma, ante, p. 1. There, the Court holds that the proper inquiry when evidence is admitted in contravention of a state law is "whether the admission of evidence. . . so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." Ante, at 12. I do not see why the unconstitutionality criterion for excluding evidence in accordance with state law should be any less demanding than the unconstitutionality criterion Romano recites for admitting evidence in violation of state law: "fundamental unfairness." And "fundamentally unfair" the South Carolina rule is assuredly not. The notion that the South Carolina jury imposed the death penalty "just in case" Simmons might be released on parole seems to me quite farfetched. And the notion that the decision taken on such grounds would have been altered by information on the current state of the law concerning parole (which could of course be amended) is even more farfetched. And the scenario achieves the ultimate in farfetchedness when there is added the fact that, according to uncontroverted testimony of prison officials in this case, even current South Carolina law (as opposed to discretionary prison regulations) does not prohibit furloughs and workrelease programs for life-without-parole inmates. See App. 16-17. When the prosecution has not specifically suggested parolability, I see no more reason why the United States Constitution should compel the admission of evidence showing that, under the State's current law, the defendant would be nonparolable, than that it should compel the admission of evidence showing that parolable life-sentence murderers are in fact *185 almost never paroled, or are paroled only after age 70; or evidence to the effect that escapes of life-without-parole inmates are rare; or evidence showing that, though under current law the defendant will be parolable in 20 years, the recidivism rate for elderly prisoners released after long incarceration is negligible. All of this evidence may be thought relevant to whether the death penalty should be imposed, and a petition raising the last of these claims has already arrived. See Pet. for Cert. in Rudd v. Texas, O. T. 1993, No. 93-7955. As I said at the outset, the regime imposed by today's judgment is undoubtedly reasonable as a matter of policy, but I see nothing to indicate that the Constitution requires it to be followed coast to coast. I fear we have read today the first page of a whole new chapter in the "death-isdifferent" jurisprudence which this Court is in the apparently continuous process of composing. It adds to our insistence that state courts admit "all relevant mitigating evidence," see, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978), a requirement that they adhere to distinctive rules, more demanding than what the Due Process Clause normally requires, for admitting evidence of other sorts—Federal Rules of Death Penalty Evidence, so to speak, which this Court will presumably craft (at great expense to the swiftness and predictability of justice) year by year. The heavily outnumbered opponents of capital punishment have successfully opened yet another front in their guerilla war to make this unquestionably constitutional sentence a practical impossibility. I dissent.

Today's judgment certainly seems reasonable enough as a determination of what a capital sentencing jury should be permitted to consider. That is not, however, what it purports to be. It purports to be a determination that any capital sentencing scheme that does not permit jury consideration of such material is so incompatible with our national traditions of criminal procedure that it violates the Due Process Clause of the Constitution of the United States. There is really no basis for such a pronouncement, neither in *179 any near uniform practice of our people, nor in the jurisprudence of this Court. With respect to the former I shall discuss only current practice, since the parties and amici have addressed only that, and since traditional practice may be relatively uninformative with regard to the new schemes of capital sentencing imposed upon the States by this Court's recent jurisprudence. The overwhelming majority of the 32 States that permit juries to impose or recommend capital sentences do not allow specific information regarding parole to be given to the jury. To be sure, in many of these States the sentencing choices specifically include "life without parole," so that the jury charge itself conveys the information whether parole is available. In at least eight of those States, however, the jury's choice is not merely between "life without parole" and "death," but among some variation of (parole eligible) "life," "life without parole," and "death"[1]—so that the precise date of availability of parole is relevant to the jury's choice. Moreover, even among those States that permit the jury to choose only between "life" (unspecified) and "death," South is not alone in keeping parole information from the jury. Four other States in widely separated parts of the country follow that same course,[2] and there are other States that lack *180 any clear practice.[3] By contrast, the parties and their amici point to only 10 States that arguably employ the procedure which, according to today's opinions, the Constitution requires.[4] This picture of national practice falls far short of demonstrating a principle so widely shared that it is part of even a current and temporary American consensus. As for our prior jurisprudence: The opinions of Justice Blackmun and Justice O'Connor rely on the Fourteenth Amendment's guarantee of due process, rather than on the Eighth Amendment's "cruel and unusual punishments" prohibition, as applied to the States by the Fourteenth Amendment. But cf. ante, at 172 (Souter, J., concurring). The prior law applicable to that subject indicates that petitioner's due process rights would be violated if he was "sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " quoting Both opinions try to bring this case within that description, but it does not fit. The opinions paint a picture of a prosecutor who repeatedly stressed that petitioner would pose a threat to society upon his release. The record tells a different story. *181 Rather than emphasizing future dangerousness as a crucial factor, the prosecutor stressed the nature of petitioner's crimes: the crime that was the subject of the prosecution, the brutal murder of a 79-year-old woman in her home, and three prior crimes confessed to by petitioner, all rapes and beatings of elderly women, one of them his grandmother. I am sure it was the sheer depravity of those crimes, rather than any specific fear for the future, which induced the South jury to conclude that the death penalty was justice. Not only, moreover, was future dangerousness not emphasized, but future dangerousness outside of prison was not even mentioned. The trial judge undertook specifically to prevent that, in response to the broader request of petitioner's counsel that the prosecutor be prevented from arguing future dangerousness at all: "Obviously, I will listen carefully to the argument of the solicitor to see if it contravenes the actual factual circumstance. Certainly, I recognize the right of the State to argue concerning the defendant's dangerous propensity. I will not allow the solicitor, for example, to say to the jury anything that would indicate that the defendant is not going to be jailed for the period of time that is encompassed within the actual law. The fact that we do not submit the parole eligibility to the jury does not negate the fact that the solicitor must stay within the trial record." App. 56-57. As I read the record, the prosecutor followed this admonition—and the Due Process Clause requires nothing more. Both Justice Blackmun and Justice O'Connor focus on two portions of the prosecutor's final argument to the jury in the sentencing phase. First, they stress that the prosecutor asked the jury to answer the question of "what to do with [petitioner] now that he is in our midst." That statement, however, was not made (as they imply) in the course of an argument about future dangerousness, but was a response to *182 petitioner's mitigating evidence. Read in context, the statement is not even relevant to the issue in this case: "The defense in this case as to sentence [is] a diversion. It's putting the blame on society, on his father, on his grandmother, on whoever else he can, spreading it out to avoid that personal responsibility. That he came from a deprived background. That he didn't have all of the breaks in life and certainly that helps shape someone. But we are not concerned about how he got shaped. We are concerned about what to do with him now that he is in our midst." at 110. Both opinions also seize upon the prosecutor's comment that the jury's verdict would be "an act of self-defense." That statement came at the end of admonition of the jury to avoid emotional responses and enter a rational verdict: "Your verdict shouldn't be returned in anger. Your verdict shouldn't be an emotional catharsis. Your verdict shouldn't be a response to that eight-year-old kid [testifying in mitigation] and really shouldn't be a response to the gruesome grotesque handiwork of [petitioner]. Your verdict should be a response of society to someone who is a threat. Your verdict will be an act of self-defense." at 109-110. This reference to "self-defense" obviously alluded, neither to defense of the jurors' own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be. Thus, as I read the record (and bear in mind that the trial judge was on the lookout with respect to this point), the prosecutor did not invite the jury to believe that petitioner would be eligible for parole—he did not mislead the jury. The rule the majority adopts in order to overturn this sentence therefore goes well beyond what would be necessary to counteract prosecutorial misconduct (a disposition with *183 which I might agree). It is a rule at least as sweeping as this: that the Due Process Clause overrides state law limiting the admissibility of information concerning parole whenever the prosecution argues future dangerousness. Justice Blackmun appears to go even further, requiring the admission of parole ineligibility even when the prosecutor does not argue future dangerousness. See ante, at 163-164; but see ante, at 174 (Ginsburg, J., concurring). I do not understand the basis for this broad prescription. As a general matter, the Court leaves it to the States to strike what they consider the appropriate balance among the many factors— probative value, prejudice, reliability, potential for confusion, among others—that determine whether evidence ought to be admissible. Even in the capital punishment context, the Court has noted that "the wisdom of the decision to permit juror consideration of [postsentencing contingencies] is best left to the States." "[T]he States, and not this Court, retain `the traditional authority' to determine what particular evidence is relevant." One reason for leaving it that way is that a sensible code of evidence cannot be invented piecemeal. Each item cannot be considered in isolation, but must be given its place within the whole. Preventing the defense from introducing evidence regarding parolability is only half of the rule that prevents the prosecution from introducing it as well. If the rule is changed for defendants, many will think that evenhandedness demands a change for prosecutors as well. State's attorneys ought to be able to say that if, ladies and gentlemen of the jury, you do not impose capital punishment upon this defendant (or if you impose anything less than life without parole) he may be walking the streets again in eight years! Many would not favor the admission of such an argument—but would prefer it to a state scheme in which defendants can call attention to the unavailability of parole, but prosecutors cannot note *184 its availability. This Court should not force state legislators into such a difficult choice unless the isolated state evidentiary rule that the Court has before it is not merely less than ideal, but beyond a high threshold of unconstitutionality. The low threshold the Court constructs today is difficult to reconcile with our almost simultaneous decision in Romano v. Oklahoma, ante, p. 1. There, the Court holds that the proper inquiry when evidence is admitted in contravention of a state law is "whether the admission of evidence. so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." Ante, at 12. I do not see why the unconstitutionality criterion for excluding evidence in accordance with state law should be any less demanding than the unconstitutionality criterion Romano recites for admitting evidence in violation of state law: "fundamental unfairness." And "fundamentally unfair" the South rule is assuredly not. The notion that the South jury imposed the death penalty "just in case" Simmons might be released on parole seems to me quite farfetched. And the notion that the decision taken on such grounds would have been altered by information on the current state of the law concerning parole (which could of course be amended) is even more farfetched. And the scenario achieves the ultimate in farfetchedness when there is added the fact that, according to uncontroverted testimony of prison officials in this case, even current South law (as opposed to discretionary prison regulations) does not prohibit furloughs and workrelease programs for life-without-parole inmates. See App. 16-17. When the prosecution has not specifically suggested parolability, I see no more reason why the United States Constitution should compel the admission of evidence showing that, under the State's current law, the defendant would be nonparolable, than that it should compel the admission of evidence showing that parolable life-sentence murderers are in fact *185 almost never paroled, or are paroled only after age 70; or evidence to the effect that escapes of life-without-parole inmates are rare; or evidence showing that, though under current law the defendant will be parolable in 20 years, the recidivism rate for elderly prisoners released after long incarceration is negligible. All of this evidence may be thought relevant to whether the death penalty should be imposed, and a petition raising the last of these claims has already arrived. See Pet. for Cert. in Rudd v. Texas, O. T. 1993, No. 93-7955. As I said at the outset, the regime imposed by today's judgment is undoubtedly reasonable as a matter of policy, but I see nothing to indicate that the Constitution requires it to be followed coast to coast. I fear we have read today the first page of a whole new chapter in the "death-isdifferent" jurisprudence which this Court is in the apparently continuous process of composing. It adds to our insistence that state courts admit "all relevant mitigating evidence," see, e. g., ; a requirement that they adhere to distinctive rules, more demanding than what the Due Process Clause normally requires, for admitting evidence of other sorts—Federal Rules of Death Penalty Evidence, so to speak, which this Court will presumably craft (at great expense to the swiftness and predictability of justice) year by year. The heavily outnumbered opponents of capital punishment have successfully opened yet another front in their guerilla war to make this unquestionably constitutional sentence a practical impossibility. I dissent.

Justice Stewart

dissenting

Chapman v. Houston Welfare Rights Organization

https://www.courtlistener.com/opinion/110076/chapman-v-houston-welfare-rights-organization/

https://www.courtlistener.com/api/rest/v3/clusters/110076/

1978-093

My disagreement with the opinion and judgment of the Court in these cases is narrow but dispositive. Because 28 U.S. C. § 1343 (3) refers to "any Act of Congress providing for equal rights," because 42 U.S. C. § 1983 is such an Act of Congress, and because § 1983 by its terms clearly covers lawsuits such as the ones here involved, I would hold that the plaintiffs properly brought these cases in Federal District Court.[1] *673 First of all, it seems to me clear that this Court has already settled the question whether § 1983 creates a cause of action for these plaintiffs. We have explicitly recognized that the case of "Rosado v. Wyman, 397 U.S. 397 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States." Edelman v. Jordan, 415 U.S. 651, 675.[2] And a long line of this Court's cases necessarily stands for that proposition. Miller v. Youakim, 440 U.S. 125; Quern v. Mandley, 436 U.S. 725; Van Lare v. Hurley, 421 U.S. 338; Edelman v. Jordan, supra; Hagans v. Lavine, 415 U.S. 528; Carleson v. Remillard, 406 U.S. 598; Jefferson v. Hackney, 406 U.S. 535; Carter v. Stanton, 405 U.S. 669; Townsend v. Swank, 404 U.S. 282; California Dept. of Human Resources v. Java, 402 U.S. 121; Dandridge v. *674 Williams, 397 U.S. 471; Rosado v. Wyman, 397 U.S. 397; King v. Smith, 392 U.S. 309; Damico v. California, 389 U.S. 416. I think it is far too late in the day, therefore, to argue that the plaintiffs in these cases did not state causes of action cognizable in the federal courts. Even if this impressive weight of authority did not exist, however, and the question before us were one of first impression, it seems clear to me that the plain language of § 1983 would dictate the same result. For that statute confers a cause of action for the deprivation under color of state law of "any rights . . . secured by the Constitution and laws." Only if the legislative history showed unambiguously that those words cannot mean what they say would it be possible to conclude that there were no federal causes of action in the present cases. But, as the Court correctly states, "the legislative history of the provisions at issue in these cases ultimately provides us with little guidance as to the proper resolution of the question presented here." Ante, at 610. The Court's reading of §§ 1983 and 1343 (3) results in the conclusion that Congress intended § 1983 to create some causes of action which could not be heard in a federal court under § 1343 (3), even though §§ 1983 and 1343 (3) both originated in the same statute (§ 1 of the so-called Ku Klux Klan Act). This anomaly is quite contrary to the Court's understanding up to now that "the common origin of §§ 1983 and 1343 (3) in § 1 of the 1871 Act suggests that the two provisions were meant to be, and are, complementary." Examining Board v. Flores de Otero, 426 U.S. 572, 583. See Lynch v. Household Finance Corp., 405 U.S. 538, 542-552. Section 1983 is a statute "providing for equal rights." The Revised Statutes of 1874 included § 1979, the predecessor of § 1983, in Title XXIV, entitled "Civil Rights." Several sections in the Title, including § 1979, were cross-referenced to the predecessors of § 1343 (3), Rev. Stat. §§ 563 (12) and 629 (16). In the context of the Revised Statutes, the term "providing *675 for equal rights" found in § 629 (16) served to identify the sections of the Civil Rights Title which involved rights enforceable through civil actions. The Court's reasoning to the contrary seems to rely solely on the fact that § 1983 does not create any rights. Section 1343 (3) does not require, however, that the Act create rights. Nor does it require that the Act "provide" them. It refers to any Act of Congress that provides "for" equal rights. Section 1983 provides for rights when it creates a cause of action for deprivation of those rights under color of state law. It is, therefore, one of the statutes for which § 1343 (3), by its terms, confers jurisdiction upon the federal district courts. Today's decision may not have a great effect on the scope of federal jurisdiction. If the amount in controversy exceeds $10,000, any plaintiff raising a federal question may bring an action in federal court under 28 U.S. C. § 1331 (a). Many other sections of Title 28 confer jurisdiction upon the federal courts over statutory questions without any requirement that a monetary minimum be in controversy. See, e. g., 28 U.S. C. § 1333 (admiralty and maritime jurisdiction); 28 U.S. C. § 1334 (bankruptcy); 28 U.S. C. § 1337 (Acts of Congress regulating commerce). Still other plaintiffs will find their way into the federal courts through jurisdictional provisions codified with the substantive law, and not incorporated in Title 28. See, e. g., 12 U.S. C. § 2614 (Real Estate Settlement Procedures Act of 1974); 15 U.S. C. § 1640 (e) (Truth in Lending Act); 42 U.S. C. § 7604 (1976 ed., Supp. I) (Clean Air Act). Finally, even a welfare recipient with a federal statutory claim may sue in a federal court if his lawyer can link this claim to a substantial constitutional contention. And under the standard of substantiality established by Hagans v. Lavine, supra, such a constitutional claim would not be hard to construct. But to sacrifice even one lawsuit to the Court's cramped reading of 28 U.S. C. § 1343 (3) is to deprive a plaintiff of a *676 federal forum without justification in the language or history of the law. I respectfully dissent. MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL believe that the issue discussed in footnote 2 of this dissenting opinion need not be addressed in this case. They therefore express no view of the merits of that particular question.

My disagreement with the opinion and judgment of the Court in these cases is narrow but dispositive. Because 28 U.S. C. 1343 (3) refers to "any Act of Congress providing for equal rights," because 42 U.S. C. 1983 is such an Act of Congress, and because 1983 by its terms clearly covers lawsuits such as the ones here involved, I would hold that the plaintiffs properly brought these cases in Federal District Court.[1] *673 First of all, it seems to me clear that this Court has already settled the question whether 1983 creates a cause of action for these plaintiffs. We have explicitly recognized that the case of held that suits in federal court under 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States."[2] And a long line of this Court's cases necessarily stands for that proposition. ; ; Van ; ; ; ; ; ; California Dept. of Human ; U.S. 471; ; ; I think it is far too late in the day, therefore, to argue that the plaintiffs in these cases did not state causes of action cognizable in the federal courts. Even if this impressive weight of authority did not exist, however, and the question before us were one of first impression, it seems clear to me that the plain language of 1983 would dictate the same result. For that statute confers a cause of action for the deprivation under color of state law of "any rights secured by the Constitution and laws." Only if the legislative history showed unambiguously that those words cannot mean what they say would it be possible to conclude that there were no federal causes of action in the present cases. But, as the Court correctly states, "the legislative history of the provisions at issue in these cases ultimately provides us with little guidance as to the proper resolution of the question presented here." Ante, at 610. The Court's reading of 1983 and 1343 (3) results in the conclusion that Congress intended 1983 to create some causes of action which could not be heard in a federal court under 1343 (3), even though 1983 and 1343 (3) both originated in the same statute ( 1 of the so-called Ku Klux Klan Act). This anomaly is quite contrary to the Court's understanding up to now that "the common origin of 1983 and 1343 (3) in 1 of the 1871 Act suggests that the two provisions were meant to be, and are, complementary." Examining See Section 1983 is a statute "providing for equal rights." The Revised Statutes of 1874 included 1979, the predecessor of 1983, in Title XXIV, entitled "Civil Rights." Several sections in the Title, including 1979, were cross-referenced to the predecessors of 1343 (3), Rev. Stat. 563 (12) and 629 (16). In the context of the Revised Statutes, the term "providing * for equal rights" found in 629 (16) served to identify the sections of the Civil Rights Title which involved rights enforceable through civil actions. The Court's reasoning to the contrary seems to rely solely on the fact that 1983 does not create any rights. Section 1343 (3) does not require, however, that the Act create rights. Nor does it require that the Act "provide" them. It refers to any Act of Congress that provides "for" equal rights. Section 1983 provides for rights when it creates a cause of action for deprivation of those rights under color of state law. It is, therefore, one of the statutes for which 1343 (3), by its terms, confers jurisdiction upon the federal district courts. Today's decision may not have a great effect on the scope of federal jurisdiction. If the amount in controversy exceeds $10,000, any plaintiff raising a federal question may bring an action in federal court under 28 U.S. C. 1331 (a). Many other sections of Title 28 confer jurisdiction upon the federal courts over statutory questions without any requirement that a monetary minimum be in controversy. See, e. g., 28 U.S. C. 1333 (admiralty and maritime jurisdiction); 28 U.S. C. 1334 (bankruptcy); 28 U.S. C. 1337 (Acts of Congress regulating commerce). Still other plaintiffs will find their way into the federal courts through jurisdictional provisions codified with the substantive law, and not incorporated in Title 28. See, e. g., 12 U.S. C. 2614 (Real Estate Settlement Procedures Act of 1974); 15 U.S. C. 1640 (e) (Truth in Lending Act); 42 U.S. C. 7604 (1976 ed., Supp. I) (Clean Air Act). Finally, even a welfare recipient with a federal statutory claim may sue in a federal court if his lawyer can link this claim to a substantial constitutional contention. And under the standard of substantiality established by such a constitutional claim would not be hard to construct. But to sacrifice even one lawsuit to the Court's cramped reading of 28 U.S. C. 1343 (3) is to deprive a plaintiff of a *676 federal forum without justification in the language or history of the law. I respectfully dissent. MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL believe that the issue discussed in footnote 2 of this dissenting opinion need not be addressed in this case. They therefore express no view of the merits of that particular question.

Justice Souter

majority

Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan

https://www.courtlistener.com/opinion/145914/kennedy-v-plan-administrator-for-dupont-sav-and-investment-plan/

https://www.courtlistener.com/api/rest/v3/clusters/145914/

2008-017

The Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U.S. C. §1001 et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments govern­ ing” them. §1104(a)(1)(D). At a more specific level, the Act requires covered pension benefit plans to “provide that benefits . . . under the plan may not be assigned or alien­ ated,” §1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs), §1056(d)(3). The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband’s ERISA pension plan, who purported to waive her entitle­ ment by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialien­ ation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the des­ ignation made by the former husband in accordance with 2 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court plan documents. I The decedent, William Kennedy, worked for E. I. Du- Pont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any beneficiary or beneficiaries . . . to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner pre­ scribed by the [plan administrator],” id., at 52, and pro­ vides forms for designating or changing a beneficiary, id., at 34, 56–57. If at the time the participant dies “no sur­ viving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” Id., at 48. The SIP is an ERISA “ ‘employee pension benefit plan,’ ” 497 F.3d 426, 427 (CA5 2007); 29 U.S. C. §1002(2), and the parties do not dispute that the plan satisfies ERISA’s antialienation provision, §1056(d)(1), which requires it to “provide that benefits provided under the plan may not be assigned or alienated.”1 The plan does, however, permit a beneficiary to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 26 U.S. C. §2518, which has the effect of switching the beneficiary to an “alternate . . . determined according to a valid beneficiary designa­ —————— 1 The plan states that “[e]xcept as provided by Section 401(a)(13) of the [Internal Revenue] Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.” App. 50–51. Title 26 U.S. C. §401(a)(13)(A), in language substantially tracking the text of §1056(d)(1), provides that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” Cite as: 555 U. S. ____ (2009) 3 Opinion of the Court tion made by the deceased.” Supp. Record 86–87 (Exh. 15). In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. 497 F.3d, at 427. William and Liv divorced in 1994, subject to a decree that Liv “is . . . divested of all right, title, interest, and claim in and to . . . [a]ny and all sums . . . the proceeds [from], and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 64–65. William did not, however, execute any documents removing Liv as the SIP beneficiary, 497 F.3d, at 428, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the benefici­ ary under DuPont’s Pension and Retirement Plan, also governed by ERISA. On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s Estate. Ibid. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. Ibid. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the bene­ fits to William’s designee.2 —————— 2 The Estate now says that William’s beneficiary-designation form for the Pension and Retirement Plan applied to the SIP as well, but the form on its face applies only to DuPont’s “Pension and Retirement Plan.” App. 62. In the District Court, in fact, the Estate stipulated that William “never executed any forms or documents to remove or replace Liv Kennedy as his sole beneficiary under either the SIP or [a plan that merged into the SIP].” Id., at 28. In any event, the Estate did not raise this argument in the Court of Appeals, and we will not 4 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a bene­ ficiary can waive his rights to the proceeds of an ERISA plan “ ‘provided that the waiver is explicit, voluntary, and made in good faith.’ ” App. to Pet. for Cert. 38 (quoting Manning v. Hayes, 212 F.3d 866, 874 (CA5 2000)). The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance poli­ cies, which are considered “ ‘welfare plan[s]’ ” under ERISA and consequently free of the antialienation provision. 497 F.3d, at 429. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be hon­ ored. Id., at 430. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 29 U.S. C. §1056(d)(3),3 a court order that satisfies certain statutory requirements is known as a qualified domestic relations order, which is exempt from the bar on assignment or alienation. Be­ cause the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism—the QDRO—for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” 497 F.3d, at 431. We granted certiorari to resolve a split among the —————— address it in the first instance. See Taylor v. Freeland & Kronz, 503 U.S. 638, 645–646 (1992). 3 Section 1056(d)(3)(A) provides that the antialienation provision “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order.” Cite as: 555 U. S. ____ (2009) 5 Opinion of the Court Courts of Appeals and State Supreme Courts over a di­ vorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO.4 552 U. S. ___ (2008). We subsequently realized that this case implicates the further split over whether a beneficiary’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents,5 and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale. II A By its terms, the antialienation provision, §1056(d)(1), requires a plan to provide expressly that benefits be nei­ ther “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary 152 (4th rev. ed. 1968), and to “alienate” is “[t]o convey; to transfer the title to property,” id., at 96. We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his —————— 4 Compare Altobelli v. IBM Corp., 77 F.3d 78 (CA4 1996) (federal common law waiver in divorce decree does not conflict with antialiena­ tion provision); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (CA7 1990) (en banc) (same); Keen v. Weaver, 121 S.W.3d 721 (Tex. 2003) (same), with McGowan v. NJR Serv. Corp., 423 F.3d 241 (CA3 2005) (federal common law waiver in divorce decree barred by antialienation provision). 5 Compare Altobelli, supra (federal common law waiver controls); Mohamed v. Kerr, 53 F.3d 911 (CA8 1995) (same); Brandon v. Travel ers Ins. Co., 18 F.3d 1321 (CA5 1994) (same); Fox Valley, 897 F.2d 275 (same); Strong v. Omaha Constr. Industry Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005) (same); Keen, supra (same), with Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415 (CA6 1997) (plan documents control); Krishna v. Colgate Palmolive Co., 7 F.3d 11 (CA2 1993) (same). 6 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court shoes. The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver trans­ ferred the SIP benefits to whoever would be next in line; without a designated contingent beneficiary, the Estate would take them. The court found support in the applica­ ble Treasury Department regulation that defines “assign­ ment” and “alienation” to include “[a]ny direct or indirect arrangement (whether revo­ cable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforce­ able against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 CFR §1.401(a)– 13(c)(1)(ii) (2008). See Boggs v. Boggs, 520 U.S. 833, 851–852 (1997) (relying upon the regulation to interpret the meaning of “assign­ ment” and “alienation” in §1056(d)(1)). The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “ ‘interest enforceable against the plan.’ ” 497 F.3d, at 430. Casting the alienation net this far, though, raises ques­ tions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indi­ rect effect of a transfer to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate beneficiary as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future beneficiary “acquires” a right or interest when at the time of the waiver there was no estate and the benefi­ ciary of a future estate might be anyone’s guess. If there were a contingent beneficiary (or the participant made a Cite as: 555 U. S. ____ (2009) 7 Opinion of the Court subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet un­ known, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blind­ folded, operating, at best, on the fringe of what “assign­ ment” or “alienation” normally suggests. The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension bene­ fits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different beneficiary. See Boggs, supra, at 843; 29 U.S. C. §§1055(a), (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Like­ wise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the antialienation provision. See Brief for Respon­ dents 21–23; 26 U.S. C. §2518. In each example, though, we fail to see how these waivers would be permis- sible under the Fifth Circuit’s reading of the statute and regulation. Our doubts, and the exceptions that call the Fifth Cir­ cuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U.S. 96, 101 (2007). We explained before that §1056(d)(1) is much like a spendthrift trust provision barring assign­ 8 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court ment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. Al­ though the beneficiary of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a beneficiary in his stead. See 2 Restatement (Third) of Trusts §58(1), Comment c, p. 359 (2001) (“A designated beneficiary of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust. . . . On the other hand, a purported disclaimer by which the beneficiary attempts to direct who is to receive the interest is a precluded transfer”); E. Gris­ wold, Spendthrift Trusts §524, p. 603 (2d ed. 1947) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); Roseberry v. Moncure, 245 Va. 436, 439, 429 S.E.2d 4, 6 (1993) (“ ‘If a trust is created without notice to the beneficiary or the beneficiary has not ac­ cepted the beneficial interest under the trust, he can disclaim’ ” (quoting 1 A. Scott & W. Fratcher, Law of Trusts §36.1, p. 389 (4th ed. 1987) (hereinafter Fratcher))). We do not mean that the whole law of spendthrift trusts and disclaimers turns up in §1056(d)(1), but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 36, 106 Eng. Rep. 575, 576–577 (K. B. 1819).6 —————— 6 DuPont argues that Liv’s waiver would have been an invalid dis­ claimer at common law because it was given for consideration in the divorce settlement. But the authorities DuPont cites fail to support the Cite as: 555 U. S. ____ (2009) 9 Opinion of the Court The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a beneficiary a ‘right or interest enforceable against the plan’ pursuant to a beneficiary’s waiver of rights where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 519 U.S. 452, 461 (1997).7 —————— proposition that a beneficiary’s otherwise valid disclaimer was invalid at common law because she received consideration. See Roseberry v. Moncure, 245 Va., at 439, 429 S. E. 2d, at 6; Smith v. Bank of Del., 43 Del. Ch. 124, 126–127, 219 A.2d 576, 577 (1966); Preminger v. Union Bank & Trust Co., 54 Mich. App. 361, 368–369, 220 N.W.2d 795, 798– 799 (1974); 4 Fratcher §337.1 (4th ed. 1989); 1 Restatement (Second) of Trusts §36, Comment c (1957). It is true that the receipt of considera­ tion prevents a beneficiary from making a qualified disclaimer for gift tax purposes, see 26 CFR §25.2518–2 (2008), and there is common law authority for the proposition that a renunciation by a devisee is ineffec­ tive against existing creditors if “it is shown that those who would take such property on renunciation had agreed to pay to the devisee some­ thing of value in consideration of such renunciation.” 6 W. Bowe & D. Parker, Page on Law of Wills §49.5, p. 48 (2005); see also Schoonover v. Osborne, 193 Iowa 474, 478–479, 187 N.W. 20, 22 (1922). But at common law the receipt of consideration did not necessarily render a disclaimer invalid. See Commerce Trust Co. v. Fast, 396 S.W.2d 683, 686–687 (Mo. 1965); Central Nat. Bank v. Eells, 5 Ohio Misc. 187, 189– 192, 215 N.E.2d 77, 80–81 (Ohio Prob. Ct. 1965); In re Wimperis [1914] 1 Ch. 502, 508–510; see also In re Estate of Baird, 131 Wash. 2d 514, 519, n. 5, 933 P.2d 1031, 1034, n. 5 (1997). In any event, our point is not that Liv’s waiver was a valid disclaimer at common law: only that reading the terms of 29 U.S. C. §1056(d)(1) to bar all non-QDRO waivers is unsound in light of background common law principles. 7 It is true that the Government’s position regarding the applicability of the antialienation provision to a waiver has fluctuated. The Labor Department previously took the position that “application of such a federal common-law waiver rule to pension plans would conflict with ERISA’s anti-alienation provision.” Brief for Secretary of Labor as 10 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 497 F.3d, at 430, a point that echoes in DuPont’s argu­ ment here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provi­ sion was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition re­ quires that it be the “creat[ion] or recogni[tion of] the existence of an alternate payee’s right to, or assign[ment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a partici­ pant under a plan.” 29 U.S. C. §1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee.8 Not being a —————— Amicus Curiae 16 in Keen v. Weaver, No. 01–0447 (Tex. 2003). And it likewise asserted that “waiver of pension benefits is generally imper­ missible under [§1056(d)(1)].” Brief for Secretary of Labor as Amicus Curiae 5 in In re Estate of Egelhoff, No. 67626–7 (Wash. 2001). The Labor Department has reconsidered that view and has now taken the Treasury’s position. Brief for United States as Amicus Curiae 20, n. 6. But “the change in interpretation alone presents no separate ground for disregarding the [Treasury’s and the Labor] Department’s present interpretation.” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007). Nor does the fact that the interpretation is stated in a legal brief make it unworthy of deference, as “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U.S., at 462. 8 Even if one understands Liv’s waiver to have resulted somehow in her interest reverting to William, he does not qualify as an “alternate Cite as: 555 U. S. ____ (2009) 11 Opinion of the Court mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a non-QDRO. In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential benefici­ ary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of §1056(d)(1). B DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing. First, it argues that even if the waiver is not an assign­ ment or alienation barred under the terms of §1056(d)(1), §1056(d)(3)(A) still prohibits it, in providing that §1056(d)(1) “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDRO domestic relations orders, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorpor­ ated a waiver, subsection (d)(1) does not cover it and §1056(d)(3)(A) does not independently bar it. Second, DuPont relies upon §1056(d)(3)(H)(iii)(II), pro­ viding that if a domestic relations order is not a QDRO, —————— payee,” which is defined by statute as “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” 29 U.S. C. §1056(d)(3)(K). 12 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i): “During any period in which the issue of whether a domestic relations order is a qualified domestic rela­ tions order is being determined . . . the plan adminis­ trator shall separately account for the amounts (here­ inafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a qualified domestic rela­ tions order.” §1056(d)(3)(H)(i). Thus it is clear that subparagraph (H) speaks of a domes­ tic relations order that distributes certain benefits (the “segregated amounts”) to an alternate payee, when the question for the plan administrator is whether the order is effective as a QDRO. That is the circumstance in which, for want of a QDRO, clause (iii) tells the plan administra­ tor not to pay the alternate, but to distribute the segre­ gated amounts as if there had been no order. Clause (iii) does not, as DuPont suggests, state a general rule that a non-QDRO domestic relations order is a nullity in any proceeding that would affect the determination of a bene­ ficiary. And of course clause (iii) says nothing here at all; the divorce decree names no alternate payee, and there are consequently no “segregated amounts.” Third, DuPont claims that a plan cannot recognize a waiver of benefits in a non-QDRO divorce decree because ERISA preempts “any and all State laws insofar as they Cite as: 555 U. S. ____ (2009) 13 Opinion of the Court may now or hereafter relate to any employee benefit plan,” with “State law” being defined to include “decisions” or “other State action having the effect of law.”9 §§1144(a), (c)(1). DuPont says that Liv’s waiver, expressed in a state­ court decision and related to an employee benefit plan, is thus preempted. But recognizing a waiver in a divorce decree would not be giving effect to state law; the argu­ ment is that the waiver should be treated as a creature of federal common law, in which case its setting in a state divorce decree would be only happenstance. A court would merely be applying federal law to a document that might also have independent significance under state law. See, e.g., Melton v. Melton, 324 F.3d 941, 945–946 (CA7 2003); Clift v. Clift, 210 F.3d 268, 271–272 (CA5 2000); Lyman Lumber Co. v. Hill, 877 F.2d 692, 693–694 (CA8 1989). III The waiver’s escape from inevitable nullity under the express terms of the antialienation clause does not, how­ ever, control the decision of this case, and the question remains whether the plan administrator was required to honor Liv’s waiver with the consequence of distributing the SIP balance to the Estate.10 We hold that it was not, —————— 9 This preemption provision does not apply to QDROs. See §1144(b)(7). 10 Despite our following answer to the question here, our conclusion that §1056(d)(1) does not make a nullity of a waiver leaves open any questions about a waiver’s effect in circumstances in which it is consis­ tent with plan documents. Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U.S. 833, 853 (1997) (“If state law is not pre­ empted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit”), with Sweebe v. Sweebe, 474 Mich. 151, 156–159, 712 N.W.2d 708, 712–713 (2006) (distinguishing Boggs and holding that “while a plan administrator must pay benefits to the named beneficiary as required by ERISA,” after the benefits are dis­ 14 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court and that the plan administrator did its statutory ERISA duty by paying the benefits to Liv in conformity with the plan documents. ERISA requires “[e]very employee benefit plan [to] be established and maintained pursuant to a written instru­ ment,” 29 U.S. C. §1102(a)(1), “specify[ing] the basis on which payments are made to and from the plan,” §1102(b)(4). The plan administrator is obliged to act “in accordance with the documents and instruments govern­ ing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA],” §1104(a)(1)(D), and the Act provides no ex­ emption from this duty when it comes time to pay benefits. On the contrary, §1132(a)(1)(B) (which the Estate happens to invoke against DuPont here) reinforces the directive, with its provision that a participant or beneficiary may bring a cause of action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” The Estate’s claim therefore stands or falls by “the terms of the plan,” §1132(a)(1)(B), a straightforward rule of hewing to the directives of the plan documents that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits.’ ”11 Egelhoff v. Egel —————— tributed “the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds”); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶20, 27, 112 P.3d 308, 313–314, 315–316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as “the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed”). 11 We express no view regarding the ability of a participant or benefi­ ciary to bring a cause of action under 29 U.S. C. §1132(a)(1)(B) where the terms of the plan fail to conform to the requirements of ERISA and the party seeks to recover under the terms of the statute. Cite as: 555 U. S. ____ (2009) 15 Opinion of the Court hoff, 532 U.S. 141, 148 (2001) (quoting Fort Halifax Pack ing Co. v. Coyne, 482 U.S. 1, 9 (1987)); see also Curtiss- Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995) (ERISA’s statutory scheme “is built around reliance on the face of written plan documents”). The point is that by giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley & Vicinity Const. Workers Pension Fund v. Brown, 897 F.2d 275, 283 (CA7 1990) (Easter­ brook, J., dissenting). And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multi­ tude of external documents that might purport to affect the dispensation of benefits,” Altobelli v. IBM Corp., 77 F.3d 78, 82–83 (CA4 1996) (Wilkinson, C. J., dissenting), and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court. The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwith­ standing §1104(a)(1)(D); §1056(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a beneficiary under the plan.” But this in effect means that 16 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that quali­ fies as a QDRO,12 see §§1056(d)(3)(C), (D), requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities,” Metropolitan Life Ins. Co. v. Wheaton, 42 F.3d 1080, 1084 (CA7 1994). This is a far cry from asking a plan adminis­ trator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations. See, e.g., Altobelli, supra, at 83 (Wilkinson, C. J., dissenting) (“[W]aiver provisions are often sweeping in their terms, leaving their precise effect on plan benefits unclear”); Mohamed v. Kerr, 53 F.3d 911, 915 (CA8 1995) (making “fact-driven determination” that marriage termination agreement constituted a valid waiver under federal com­ mon law). These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might —————— 12 To qualify as a QDRO, a divorce decree must “clearly specif[y]” the name and last known mailing address of the participant and the name and mailing address of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee or the manner in which such amount or percentage is to be determined; the number of payments or period to which the order applies; and each plan to which such order applies. §1056(d)(3)(C). A domestic relations order cannot qualify as a QDRO if it requires a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan; requires the plan to provide increased benefits; or requires the payment of benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. §1056(d)(3)(D). A plan is required to establish written procedures for determining whether a domestic relations order is a QDRO. §1056(d)(3)(G)(ii). Cite as: 555 U. S. ____ (2009) 17 Opinion of the Court blur the bright-line requirement to follow plan documents in distributing benefits. Two recent preemption cases are instructive here. Boggs v. Boggs, 520 U.S. 833, held that ERISA preempted a state law permitting the testamen­ tary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law . . . a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” Id., at 850. And in Egelhoff we held that ERISA preempted a state law providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. 532 U.S., at 143. We said the law was at fault for standing in the way of making payments “simply by identifying the beneficiary specified by the plan docu­ ments,” id., at 148, and thus for purporting to “undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators,” id., at 149–150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)); see Egelhoff, supra, at 147, n. 1 (identifying “the conflict between the plan documents (which require making payments to the named benefici­ ary) and the statute (which requires making payments to someone else)”). What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan adminis­ trator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U.S. 248, 259 (1993) (“The authority of courts to develop a ‘federal common law’ under ERISA . . . is not the authority to revise the text of the statute”). And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated beneficiary. The plan provided an easy way for William to change the designation, but for 18 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it.13 The plan administrator therefore did exactly what §1104(a)(1)(D) required: “the documents control, and those name [the ex-wife].” McMillan v. Parrott, 913 F.2d 310, 312 (CA6 1990). It is no answer, as the Estate argues, that William’s beneficiary-designation form should not control because it is not one of the “documents and instruments governing the plan” under §1104(a)(1)(D) and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments govern­ ing the plan.” See Curtiss-Wright Corp., 514 U.S., at 84 (explaining that 29 U.S. C. §§1024(b)(2) and (b)(4) require a plan administrator to make available the “governing plan documents”). Those documents provide that the plan administrator will pay benefits to a participant’s desig­ nated beneficiary, with designations and changes to be made in a particular way. William’s designation of Liv as his beneficiary was made in the way required; Liv’s waiver was not.14 IV Although Liv’s waiver was not rendered a nullity by the terms of §1056, the plan administrator properly distrib­ —————— 13 The Estate does not contend that Liv’s waiver was a valid dis­ claimer under the terms of the plan. We do not address a situation in which the plan documents provide no means for a beneficiary to re­ nounce an interest in benefits. 14 The Estate also contends that requiring a plan administrator to distribute benefits in conformity with plan documents will allow a beneficiary who murders a participant to obtain benefits under the terms of the plan. The “slayer” case is not before us, and we do not address it. See Egelhoff v. Egelhoff, 532 U.S. 141, 152 (2001) (declining to decide whether ERISA preempts state statutes forbidding a murder­ ing heir from receiving property as a result of the killing). Cite as: 555 U. S. ____ (2009) 19 Opinion of the Court uted the SIP benefits to Liv in accordance with the plan documents. The judgment of the Court of Appeals is affirmed on the latter ground. It is so ordered

The Employee Retirement Income Security Act of 174 (ERISA), 2 U.S. C. et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments govern­ ing” them. At a more specific level, the Act requires covered pension benefit plans to “provide that benefits under the plan may not be assigned or alien­ ated,” but this bar does not apply to qualified domestic relations orders (QDROs), The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated under her ex-husband’s ERISA pension plan, who purported to waive her entitle­ ment by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialien­ ation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the des­ ignation made by the former husband in accordance with 2 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court plan documents. I The decedent, William Kennedy, worked for E. I. Du- Pont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any or beneficiaries to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner pre­ scribed by the [plan administrator],” and pro­ vides forms for designating or changing a at 34, 5–57. If at the time the participant dies “no sur­ viving spouse exists and no designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” The SIP is an ERISA “ ‘employee pension benefit plan,’ ” ; 2 U.S. C. and the parties do not dispute that the plan satisfies ERISA’s antialienation provision, which requires it to “provide that benefits provided under the plan may not be assigned or alienated.”1 The plan does, however, permit a to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 2 U.S. C. which has the effect of switching the to an “alternate determined according to a valid designa­ —————— 1 The plan states that “[e]xcept as provided by Section 401(a)(13) of the [Internal Revenue] Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.” App. 50–51. Title 2 U.S. C. in language substantially tracking the text of provides that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” Cite as: 555 U. S. (200) 3 Opinion of the Court tion made by the deceased.” Supp. Record 8–87 (Exh. 15). In 171, William married Liv Kennedy, and, in 174, he signed a form designating her to take benefits under the SIP, but naming no contingent to take if she disclaimed her 47 F.3d, at William and Liv divorced in subject to a decree that Liv “is divested of all right, title, interest, and claim in and to [a]ny and all sums the proceeds [from], and any other rights related to any retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 4–5. William did not, however, execute any documents removing Liv as the SIP even though he did execute a new -designation form naming his daughter, Kari Kennedy, as the benefici­ ary under DuPont’s Pension and Retirement Plan, also governed by ERISA. On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s Estate. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the bene­ fits to William’s designee.2 —————— 2 The Estate now says that William’s -designation form for the Pension and Retirement Plan applied to the SIP as well, but the form on its face applies only to DuPont’s “Pension and Retirement Plan.” App. 2. In the District Court, in fact, the Estate stipulated that William “never executed any forms or documents to remove or replace Liv Kennedy as his sole under either the SIP or [a plan that merged into the SIP].” In any event, the Estate did not raise this argument in the Court of Appeals, and we will not 4 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a bene­ ficiary can waive his rights to the proceeds of an ERISA plan “ ‘provided that the waiver is explicit, voluntary, and made in good faith.’ ” App. to Pet. for Cert. 38 ). The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance poli­ cies, which are considered “ ‘welfare plan[s]’ ” under ERISA and consequently free of the antialienation provision. 47 F.3d, at 42. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be hon­ ored. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 2 U.S. C. a court order that satisfies certain statutory requirements is known as a qualified domestic relations order, which is exempt from the bar on assignment or alienation. Be­ cause the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism—the QDRO—for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” We granted certiorari to resolve a split among the —————— address it in the first instance. See Taylor v. Freeland & Kronz, 503 U.S. 38, 45–4 (12). 3 Section 105(d)(3)(A) provides that the antialienation provision “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order.” Cite as: 555 U. S. (200) 5 Opinion of the Court Courts of Appeals and State Supreme Courts over a di­ vorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO.4 552 U. S. (2008). We subsequently realized that this case implicates the further split over whether a ’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents,5 and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale. II A By its terms, the antialienation provision, requires a plan to provide expressly that benefits be nei­ ther “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary (4th rev. ed. 18), and to “alienate” is “[t]o convey; to transfer the title to property,” We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his —————— 4 Compare (federal common law waiver in divorce decree does not conflict with antialiena­ tion provision); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, ; v. Weaver, 121 S.W.3d 721 with (federal common law waiver in divorce decree barred by antialienation provision). 5 Compare ; ; ; Fox Valley, ; ; with Metropolitan Life Ins. (plan documents control); KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court shoes. The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver trans­ ferred the SIP benefits to whoever would be next in line; without a designated contingent the Estate would take them. The court found support in the applica­ ble Treasury Department regulation that defines “assign­ ment” and “alienation” to include “[a]ny direct or indirect arrangement (whether revo­ cable or irrevocable) whereby a party acquires from a participant or a right or interest enforce­ able against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or” (a)– 13(c)(1)(ii) (2008). See (relying upon the regulation to interpret the meaning of “assign­ ment” and “alienation” in The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “ ‘interest enforceable against the plan.’ ” 47 F.3d, Casting the alienation net this far, though, raises ques­ tions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indi­ rect effect of a transfer to the next possible it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future “acquires” a right or interest when at the time of the waiver there was no estate and the benefi­ ciary of a future estate might be anyone’s guess. If there were a contingent (or the participant made a Cite as: 555 U. S. (200) 7 Opinion of the Court subsequent designation) the estate would get no interest; as for an estate the identity could ultimately turn on the law of intestacy applied to facts as yet un­ known, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blind­ folded, operating, at best, on the fringe of what “assign­ ment” or “alienation” normally suggests. The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension bene­ fits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different See ; 2 U.S. C. (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Like­ wise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the antialienation provision. See Brief for Respon­ dents 21–23; 2 U.S. C. In each example, though, we fail to see how these waivers would be permis- sible under the Fifth Circuit’s reading of the statute and regulation. Our doubts, and the exceptions that call the Fifth Cir­ cuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U.S. 101 We explained before that is much like a spendthrift trust provision barring assign­ 8 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court ment or alienation of a benefit, see and the cognate trust law is highly suggestive here. Al­ though the of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a in his stead. See 2 Restatement (Third) of Trusts Comment c, p. 35 (“A designated of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust. On the other hand, a purported disclaimer by which the attempts to direct who is to receive the interest is a precluded transfer”); E. Gris­ wold, Spendthrift Trusts p. 03 (2d ed. 147) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); (hereinafter Fratcher))). We do not mean that the whole law of spendthrift trusts and disclaimers turns up in but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 3, 10 Eng. Rep. 575, 57– (K. B. 181). —————— DuPont argues that Liv’s waiver would have been an invalid dis­ claimer at common law because it was given for consideration in the divorce settlement. But the authorities DuPont cites fail to support the Cite as: 555 U. S. (200) Opinion of the Court The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a a ‘right or interest enforceable against the plan’ pursuant to a ’s waiver of rights where the does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 51 U.S. 452, 417 —————— proposition that a ’s otherwise valid disclaimer was invalid at common law because she received consideration. See Roseberry v. 245 Va., at 42 S. E. 2d, at ; Smith v. Bank of Del., 43 Del. Ch. 124, 12–127, 21 A.2d 57, (1); 54 Mich. App. 31, 38–3, 78– 7 (174); 4 Fratcher ; 1 Restatement (Second) of Trusts §3, Comment c (157). It is true that the receipt of considera­ tion prevents a from making a qualified disclaimer for gift tax purposes, see 2 CFR §25.2518–2 (2008), and there is common law authority for the proposition that a renunciation by a devisee is ineffec­ tive against existing creditors if “it is shown that those who would take such property on renunciation had agreed to pay to the devisee some­ thing of value in consideration of such renunciation.” W. Bowe & D. Parker, Page on Law of Wills p. 48 ; see also Schoonover v. Osborne, But at common law the receipt of consideration did not necessarily render a disclaimer invalid. See Commerce Trust 3 S.W.2d 8–87 (Mo. 15); Central Nat. 18– 12, (Ohio Prob. Ct. 15); In re Wimperis [114] 1 Ch. 502, 508–510; see also In re Estate of Baird, 131 Wash. 2d 514, 51, n. 5, In any event, our point is not that Liv’s waiver was a valid disclaimer at common law: only that reading the terms of 2 U.S. C. to bar all non-QDRO waivers is unsound in light of background common law principles. 7 It is true that the Government’s position regarding the applicability of the antialienation provision to a waiver has fluctuated. The Labor Department previously took the position that “application of such a federal common-law waiver rule to pension plans would conflict with ERISA’s anti-alienation provision.” Brief for Secretary of Labor as 10 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 47 F.3d, a point that echoes in DuPont’s argu­ ment here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provi­ sion was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition re­ quires that it be the “creat[ion] or recogni[tion of] the existence of an alternate payee’s right to, or assign[ment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a partici­ pant under a plan.” 2 U.S. C. §105(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee.8 Not being a —————— Amicus Curiae 1 in v. Weaver, No. 01–0447 And it likewise asserted that “waiver of pension benefits is generally imper­ missible under [].” Brief for Secretary of Labor as Amicus Curiae 5 in In re Estate of No. 72–7 The Labor Department has reconsidered that view and has now taken the Treasury’s position. Brief for United States as Amicus Curiae 20, n. But “the change in interpretation alone presents no separate ground for disregarding the [Treasury’s and the Labor] Department’s present interpretation.” Long Island Care at Home, 171 Nor does the fact that the interpretation is stated in a legal brief make it unworthy of deference, as “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 51 U.S., at 42. 8 Even if one understands Liv’s waiver to have resulted somehow in her interest reverting to William, he does not qualify as an “alternate Cite as: 555 U. S. (200) 11 Opinion of the Court mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a may waive by a non-QDRO. In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential benefici­ ary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of B DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing. First, it argues that even if the waiver is not an assign­ ment or alienation barred under the terms of §105(d)(3)(A) still prohibits it, in providing that “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDRO domestic relations orders, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorpor­ ated a waiver, subsection (d)(1) does not cover it and §105(d)(3)(A) does not independently bar it. Second, DuPont relies upon §105(d)(3)(H)(iii)(II), pro­ viding that if a domestic relations order is not a QDRO, —————— payee,” which is defined by statute as “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” 2 U.S. C. §105(d)(3)(K). 12 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i): “During any period in which the issue of whether a domestic relations order is a qualified domestic rela­ tions order is being determined the plan adminis­ trator shall separately account for the amounts (here­ inafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a qualified domestic rela­ tions order.” §105(d)(3)(H)(i). Thus it is clear that subparagraph (H) speaks of a domes­ tic relations order that distributes certain benefits (the “segregated amounts”) to an alternate payee, when the question for the plan administrator is whether the order is effective as a QDRO. That is the circumstance in which, for want of a QDRO, clause (iii) tells the plan administra­ tor not to pay the alternate, but to distribute the segre­ gated amounts as if there had been no order. Clause (iii) does not, as DuPont suggests, state a general rule that a non-QDRO domestic relations order is a nullity in any proceeding that would affect the determination of a bene­ ficiary. And of course clause (iii) says nothing here at all; the divorce decree names no alternate payee, and there are consequently no “segregated amounts.” Third, DuPont claims that a plan cannot recognize a waiver of benefits in a non-QDRO divorce decree because ERISA preempts “any and all State laws insofar as they Cite as: 555 U. S. (200) 13 Opinion of the Court may now or hereafter relate to any employee benefit plan,” with “State law” being defined to include “decisions” or “other State action having the effect of law.” (c)(1). DuPont says that Liv’s waiver, expressed in a state­ court decision and related to an employee benefit plan, is thus preempted. But recognizing a waiver in a divorce decree would not be giving effect to state law; the argu­ ment is that the waiver should be treated as a creature of federal common law, in which case its setting in a state divorce decree would be only happenstance. A court would merely be applying federal law to a document that might also have independent significance under state law. See, e.g., 45–4 ; 210 F.3d 28, ; Lyman Lumber 877 F.2d 2, 3–4 III The waiver’s escape from inevitable nullity under the express terms of the antialienation clause does not, how­ ever, control the decision of this case, and the question remains whether the plan administrator was required to honor Liv’s waiver with the consequence of distributing the SIP balance to the Estate.10 We hold that it was not, —————— This preemption provision does not apply to QDROs. See 10 Despite our following answer to the question here, our conclusion that does not make a nullity of a waiver leaves open any questions about a waiver’s effect in circumstances in which it is consis­ tent with plan documents. Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare (“If state law is not pre­ empted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit”), with Sweebe v. Sweebe, 474 Mich. 151, 15–15, (200) (distinguishing and holding that “while a plan administrator must pay benefits to the named as required by ERISA,” after the benefits are dis­ 14 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court and that the plan administrator did its statutory ERISA duty by paying the benefits to Liv in conformity with the plan documents. ERISA requires “[e]very employee benefit plan [to] be established and maintained pursuant to a written instru­ ment,” 2 U.S. C. “specify[ing] the basis on which payments are made to and from the plan,” The plan administrator is obliged to act “in accordance with the documents and instruments govern­ ing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA],” and the Act provides no ex­ emption from this duty when it comes time to pay benefits. On the contrary, (which the Estate happens to invoke against DuPont here) reinforces the directive, with its provision that a participant or may bring a cause of action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” The Estate’s claim therefore stands or falls by “the terms of the plan,” a straightforward rule of hewing to the directives of the plan documents that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits.’ ”11 v. Egel —————— tributed “the consensual terms of a prior contractual agreement may prevent the named from retaining those proceeds”); Pardee v. Pardee, OK CIV APP. 27, ¶¶20, 27, 313–314, 315–31 (2004) (distinguishing and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as “the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed”). 11 We express no view regarding the ability of a participant or benefi­ ciary to bring a cause of action under 2 U.S. C. where the terms of the plan fail to conform to the requirements of ERISA and the party seeks to recover under the terms of the statute. Cite as: 555 U. S. (200) 15 Opinion of the Court hoff, ); see also Curtiss- Wright (ERISA’s statutory scheme “is built around reliance on the face of written plan documents”). The point is that by giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley & Vicinity Const. Workers Pension 2 (Easter­ brook, J., dissenting). And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multi­ tude of external documents that might purport to affect the dispensation of benefits,” 77 F.3d 78, 82– and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court. The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwith­ standing §105(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a under the plan.” But this in effect means that 1 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that quali­ fies as a QDRO,12 see §§105(d)(3)(C), (D), requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities,” Metropolitan Life Ins. This is a far cry from asking a plan adminis­ trator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations. See, e.g., at (“[W]aiver provisions are often sweeping in their terms, leaving their precise effect on plan benefits unclear”); 15 (making “fact-driven determination” that marriage termination agreement constituted a valid waiver under federal com­ mon law). These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might —————— 12 To qualify as a QDRO, a divorce decree must “clearly specif[y]” the name and last known mailing address of the participant and the name and mailing address of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee or the manner in which such amount or percentage is to be determined; the number of payments or period to which the order applies; and each plan to which such order applies. §105(d)(3)(C). A domestic relations order cannot qualify as a QDRO if it requires a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan; requires the plan to provide increased benefits; or requires the payment of benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. §105(d)(3)(D). A plan is required to establish written procedures for determining whether a domestic relations order is a QDRO. §105(d)(3)(G)(ii). Cite as: 555 U. S. (200) 17 Opinion of the Court blur the bright-line requirement to follow plan documents in distributing benefits. Two recent preemption cases are instructive here. held that ERISA preempted a state law permitting the testamen­ tary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” at 850. And in we held that ERISA preempted a state law providing that the designation of a spouse as the of a nonprobate asset is revoked automatically upon We said the law was at fault for standing in the way of making payments “simply by identifying the specified by the plan docu­ ments,” at and thus for purporting to “undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators,” at 14–150 ); see (identifying “the conflict between the plan documents (which require making payments to the named benefici­ ary) and the statute (which requires making payments to someone else)”). What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan adminis­ trator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U.S. 248, 25 (“The authority of courts to develop a ‘federal common law’ under ERISA is not the authority to revise the text of the statute”). And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated The plan provided an easy way for William to change the designation, but for 18 KENNEDY v. PLAN ADMINISTRATOR FOR DUPONT SAV. AND INVESTMENT PLAN Opinion of the Court whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it.13 The plan administrator therefore did exactly what required: “the documents control, and those name [the ex-wife].” McMillan v. Parrott, 13 F.2d 310, It is no answer, as the Estate argues, that William’s -designation form should not control because it is not one of the “documents and instruments governing the plan” under and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments govern­ ing the plan.” See Curtiss-Wright (explaining that 2 U.S. C. and (b)(4) require a plan administrator to make available the “governing plan documents”). Those documents provide that the plan administrator will pay benefits to a participant’s desig­ nated with designations and changes to be made in a particular way. William’s designation of Liv as his was made in the way required; Liv’s waiver was not.14 IV Although Liv’s waiver was not rendered a nullity by the terms of §105, the plan administrator properly distrib­ —————— 13 The Estate does not contend that Liv’s waiver was a valid dis­ claimer under the terms of the plan. We do not address a situation in which the plan documents provide no means for a to re­ nounce an interest in benefits. 14 The Estate also contends that requiring a plan administrator to distribute benefits in conformity with plan documents will allow a who murders a participant to obtain benefits under the terms of the plan. The “slayer” case is not before us, and we do not address it. See v. (declining to decide whether ERISA preempts state statutes forbidding a murder­ ing heir from receiving property as a result of the killing). Cite as: 555 U. S. (200) 1 Opinion of the Court uted the SIP benefits to Liv in accordance with the plan documents. The judgment of the Court of Appeals is affirmed on the latter ground. It is so ordered

Justice Stewart

majority

American Pipe & Constr. Co. v. Utah

https://www.courtlistener.com/opinion/108909/american-pipe-constr-co-v-utah/

https://www.courtlistener.com/api/rest/v3/clusters/108909/

1973-040

This case involves an aspect of the relationship between a statute of limitations and the provisions of Fed. Rule Civ. Proc. 23 regulating class actions in the federal courts. While the question presented is a limited one, the details of the complex proceedings, originating almost a decade ago, must be briefly recounted. On March 10, 1964, a federal grand jury returned indictments charging a number of individuals and companies, including the petitioners here, with criminal violations of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C. § 1. The indictments alleged that the defendants combined and conspired together in restraint of trade in steel and concrete pipe by submitting collusive and rigged bids for the sale of such pipe and by dividing and allocating business among themselves. Shortly thereafter, on June 19, 1964, pleas of nolo contendere were accepted and judgments of guilt were entered. Four days later, on June 23, 1964, the United States filed civil complaints in the United States District Court for the Central District of California against the same companies, which complaints, as subsequently amended, sought to restrain further violations of the Sherman Act and violations of the Clayton and False Claims Acts. These civil actions were the subject of extended negotiations between the Government and the defendants which culminated in a "Final Judgment," entered on May 24, 1968, in which the companies consented to a decree enjoining *541 them from engaging in certain specified future violations of the antitrust laws.[1] Eleven days short of a year later, on May 13, 1969, the State of Utah commenced a civil action for treble damages against the petitioners in the United States District Court for the District of Utah, claiming that the petitioners had conspired to rig prices in the sale of concrete and steel pipe in violation of § 1 of the Sherman Act. The suit purported to be brought as a class action in which the State represented "public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants" and also those States in the "Western Area" which had not previously filed similar actions. This action was found to be timely under the federal statute of limitations governing antitrust suits[2] because of the provision of § 5 (b) of the Clayton Act, 38 Stat. 731, as amended, 15 U.S. C. § 16 (b), which states that "[w]henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, . . . the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended *542 during the pendency thereof and for one year thereafter . . . ."[3] Since the Government's civil actions against the petitioners had ended in a consent judgment entered on May 24, 1968, Utah's suit, commenced on May 13, 1969, was timely under § 5 (b), with 11 days to spare.[4] On a motion made by the majority of the petitioners, the suit was subsequently transferred by the Judicial Panel on Multidistrict Litigation from Utah to the United States District Court for the Central District of California for trial by Judge Martin Pence, Chief Judge of the District of Hawaii, sitting in the California District by assignment. The transfer and assignment were found appropriate because of the prior concentration of more than 100 actions arising out of the same factual situation in the Central District of California before Judge Pence. In re Concrete Pipe, 303 F. Supp. 507, 508-509 (JPML 1969). In November 1969 the petitioners moved for an order pursuant to Fed. Rule Civ. Proc. 23 (c) (1) that the suit could not be maintained as a class action.[5] This motion *543 was subsequently granted. In his memorandum opinion in support of the order granting the motion Judge Pence found that those "Prerequisites to a class action" contained in Rule 23 (a) (2) through (4) appeared to have been met, or at least that minor deficiencies in meeting those standards for determining the suitability of proceeding as a class would "not be fatal to the plaintiffs' class action." 49 F. R. D. 17, 20.[6] But the requirement of Rule 23 (a) (1) that "the class [be] so numerous that joinder of all members is impracticable" was found by Judge Pence not to be satisfied: While the complaint had alleged that the members of the class totaled more than 800, Judge Pence, relying on his extensive experience in dealing with litigation involving the same defendants and similar causes of action, concluded that the number of entities which ultimately could demonstrate injury from the trade practices of the petitioners was far lower, and, further, that "[f]rom prior actual experience in like cases involving the same alleged conspiracy, this court could not find that number so numerous that joinder of all members was impracticable . . . ." 49 F. R. D., at 21. On December 12, 1969, eight days after entry of the order denying class action status,[7] the respondents, consisting *544 of more than 60 towns, municipalities, and water districts in the State of Utah, all of which had been claimed as members of the original class, filed motions to intervene as plaintiffs in Utah's action either as of right, under Rule 24 (a) (2)[8] or, in the alternative, by permission under Rule 24 (b) (2),[9] and for other relief not pertinent here. On March 30, 1970, the District Court denied the respondents' motion in all respects, concluding that the limitations period imposed by § 4B of the Clayton Act, as tolled by § 5 (b), had run as to all these respondents and had not been tolled by the institution of the class action in their behalf. 50 F. R. D. 99. On appeal, the Court of Appeals for the Ninth Circuit affirmed as to the denial of leave to intervene as of right under Rule 24 (a) (2), but, with one judge dissenting, reversed as to denial of permission to intervene *545 under Rule 24 (b) (2).[10] 473 F.2d 580. Finding that "as to members of the class Utah purported to represent, and whose claims it tendered to the court, suit was actually commenced by Utah's filing," the appellate court concluded that "[i]f the order [denying class action status], through legal fiction, is to project itself backward in time it must fictionally carry backward with it the class members to whom it was directed, and the rights they presently possessed. It cannot leave them temporally stranded in the present." Id., at 584. We granted certiorari to consider a seemingly important question affecting the administration of justice in the federal courts. 411 U.S. 963. I Under Rule 23 as it stood prior to its extensive amendment in 1966, 383 U.S. 1047-1050, a so-called "spurious" class action could be maintained when "the character of the right sought to be enforced for or against the class is . . . several, and there is a common question of law or fact affecting the several rights and a common relief is sought."[11] The Rule, however, contained no mechanism *546 for determining at any point in advance of final judgment which of those potential members of the class claimed in the complaint were actual members and would be bound by the judgment. Rather, "[w]hen a suit was brought by or against such a class, it was merely an invitation to joinder—an invitation to become a fellow traveler in the litigation, which might or might not be accepted." 3B J. Moore, Federal Practice ¶ 23.10 [1], p. *547 23-2603 (2d ed.). Cf. Snyder v. Harris, 394 U.S. 332, 335; Zahn v. International Paper Co., ante, at 296 and n. 6. A recurrent source of abuse under the former Rule lay in the potential that members of the claimed class could in some situations await developments in the trial or even final judgment on the merits in order to determine whether participation would be favorable to their interests. If the evidence at the trial made their prospective position as actual class members appear weak, or if a judgment precluded the possibility of a favorable determination, such putative members of the class who chose not to intervene or join as parties would not be bound by the judgment. This situation—the potential for so-called "one-way intervention"—aroused considerable criticism upon the ground that it was unfair to allow members of a class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.[12] The 1966 amendments were designed, in part, specifically to mend this perceived defect in the former Rule and to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.[13] Under the present Rule, a determination whether an action shall be maintained as a class action is made by the court "[a]s soon as practicable after the commencement of an action brought as a class action . . . ." Rule 23 (c) (1).[14] Once it is determined that the action may be maintained as a class action under subdivision *548 (b) (3),[15] the court is mandated to direct to members of the class "the best notice practicable under the circumstances" advising them that they may be excluded from the class if they so request, that they will be bound by the judgment, whether favorable or not if they do not request exclusion, and that a member who does not request exclusion may enter an appearance in the case. Rule 23 (c) (2).[16] Finally, the present Rule provides that in Rule 23 (b) (3) actions the judgment shall include all those found to be members of the class who have received notice and who have not requested exclusion. *549 Rule 23 (c) (3).[17] Thus, potential class members retain the option to participate in or withdraw from the class action only until a point in the litigation "as soon as practicable after the commencement" of the action when the suit is allowed to continue as a class action and they are sent notice of their inclusion within the confines of the class. Thereafter they are either non-parties to the suit and ineligible to participate in a recovery or to be bound by a judgment, or else they are full members who must abide by the final judgment, whether favorable or adverse. Under former Rule 23, there existed some difference of opinion among the federal courts of appeals and district courts as to whether parties should be allowed to join or intervene as members of a "spurious" class after the termination of a limitation period, when the initial class action complaint had been filed before the applicable statute of limitations period had run. A majority of the courts ruling on the question, emphasizing the representative nature of a class suit, concluded that such intervention was proper.[18] Other courts concluded that since a "spurious" class action was essentially a device *550 to permit individual joinder or intervention, each individual so participating would have to satisfy the timeliness requirement.[19] This conflict in the implementation of the former Rule was never resolved by this Court. Under present Rule 23, however, the difficulties and potential for unfairness which, in part, convinced some courts to require individualized satisfaction of the statute of limitations by each member of the class, have been eliminated, and there remain no conceptual or practical obstacles in the path of holding that the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.[20] Whatever the merit in the conclusion that one seeking to join a class after the running of the statutory period asserts a "separate cause of action" which must individually meet the timeliness requirements, Athas v. Day, 161 F. Supp. 916, 919 (Colo. 1958), such a concept is simply inconsistent with Rule 23 as presently drafted. A federal class action is no longer "an invitation to joinder" but a truly representative suit designed to avoid, rather than encourage, unnecessary filing of repetitious papers and motions. Under the circumstances of this case, where the District Court found that the named plaintiffs asserted claims that were "typical of the claims or defenses of the class" and would "fairly and adequately protect the interests of the class," Rule 23 (a) (3), (4), *551 the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue. Thus, the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs. To hold to the contrary would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties— precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found "superior to other available methods for the fair and efficient adjudication of the controversy." Rule 23 (b) (3). We think no different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.[21] Rule *552 23 is not designed to afford class action representation only to those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action. During the pendency of the District Court's determination in this regard, which is to be made "as soon as practicable after the commencement of an action," potential class members are mere passive beneficiaries of the action brought in their behalf. Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. It follows that even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings, the later running of the applicable statute of limitations does not bar participation in the class action and in its ultimate judgment. II In the present case the District Court ordered that the suit could not continue as a class action, and the participation denied to the respondents because of the running of the limitation period was not membership in the class, but rather the privilege of intervening in an individual suit pursuant to Rule 24 (b) (2).[22] We hold that in this posture, at least where class action status has been denied *553 solely because of failure to demonstrate that "the class is so numerous that joinder of all members is impracticable," the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. As the Court of Appeals was careful to note in the present case, "[m]aintenance of the class action was denied not for failure of the complaint to state a claim on behalf of the members of the class (the court recognized the probability of common issues of law and fact respecting the underlying conspiracy) [,] not for lack of standing of the representative, or for reasons of bad faith or frivolity." 473 F.2d, at 584. (Footnote omitted.) A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court's docket,[23] a rule requiring successful *554 anticipation of the determination of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.[24] This rule is in no way inconsistent with the functional operation of a statute of limitations. As the Court stated in Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, statutory limitation periods are "designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Id., at 348-349. The policies of ensuring essential fairness to defendants and of barring a plaintiff who "has slept on his rights," Burnett v. New York Central R. Co., 380 U.S. 424, 428, are satisfied when, as here, a named plaintiff who is found *555 to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.[25] Since the imposition of a time bar would not in this circumstance promote the purposes of the statute of limitations, the tolling rule we establish here is consistent both with the procedures of Rule 23 and with the proper function of the limitations statute. While criticisms of Rule 23 and its impact on the federal courts have been both numerous and trenchant, see, e. g., American College of Trial Lawyers, Report and Recommendations of the Special Committee on Rule 23 of the Federal Rules of Civil Procedure (1972); H. Friendly, Federal Jurisdiction: A General View 118-120 (1973); Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits—The Twenty-Third Annual Antitrust Review, 71 Colo. L. Rev. 1, 5-12 (1971); Handler, Twenty-Fourth Annual Antitrust Review, 72 Colo. L. Rev. 1, 34-42 (1972), this interpretation of the Rule *556 is nonetheless necessary to insure effectuation of the purposes of litigative efficiency and economy that the Rule in its present form was designed to serve. III The petitioners contend, however, that irrespective of the policies inherent in Rule 23 and in statutes of limitations, the federal courts are powerless to extend the limitation period beyond the period set by Congress because that period is a "substantive" element of the right conferred on antitrust plaintiffs and cannot be extended or restricted by judicial decision or by court rule.[26] Unlike the situation where Congress has been silent as to the period within which federal rights must be asserted,[27] in the antitrust field Congress has specified a precise limitation period, and further has provided for a tolling period in the event that Government litigation is instituted. The inclusion of the limitation and the tolling period, the petitioners assert, makes the "substantive" statute immune from extension by "procedural" rules. They rely in large part on the Court's decision in The Harrisburg, *557 119 U.S. 199, in which it was stated, with respect to state wrongful-death statutes, "The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." Id., at 214. In The Harrisburg, however, the Court dealt with a situation where a plaintiff who was invoking the maritime jurisdiction of a federal court sought relief under a state statute providing for substantive liability.[28] The Court held that when a litigant in a federal court asserted a cause of action based upon a state statute he was bound by the limitation period contained within that statute rather than by a federal time limit. Cf. Guaranty Trust Co. v. York, 326 U.S. 99. But the Court in The Harrisburg did not purport to define or restrict federal judicial power to delineate circumstances where the applicable statute of limitations would be tolled. As we said in Burnett, supra, "[w]hile the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled." 380 U.S., at 427 n. 2. The proper test is not whether a time *558 limitation is "substantive" or "procedural," but whether tolling the limitation in a given context is consonant with the legislative scheme.[29] In recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground. In Burnett v. New York Central R. Co., 380 U.S. 424, a railroad employee claiming rights under the Federal Employers' Liability Act, 45 U.S. C. § 51 et seq., initially brought suit in a state court within the three-year time limitation specifically imposed by § 6 of the Act, 45 U.S. C. § 56. The state proceeding was subsequently dismissed because of improper venue. Immediately after the dismissal, but also after the running of the limitation period, the employee attempted to bring suit in federal court. Reversing determinations of the District Court and the Court of Appeals that the federal suit was time barred, the Court held that the commencement of the state suit fulfilled the policies of repose and certainty inherent in the limitation provisions and tolled the running of the period. See also Herb v. Pitcairn, 325 U.S. 77. *559 Similarly, in cases where the plaintiff has refrained from commencing suit during the period of limitation because of inducement by the defendant, Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, or because of fraudulent concealment, Holmberg v. Armbrecht, 327 U.S. 392, this Court has not hesitated to find the statutory period tolled or suspended by the conduct of the defendant. In Glus, supra, the Court specifically rejected a contention by the defendant that when "the time limitation is an integral part of a new cause of action . . . that cause is irretrievably lost at the end of the statutory period." 359 U.S., at 232. To the contrary, the Court found that the strict command of the limitation period provided in the federal statute was to be suspended by considerations "[d]eeply rooted in our jurisprudence." Ibid. These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose. IV Finally, the petitioners urge that the Court of Appeals' reversal of the District Court for failure to permit intervention under Rule 24 (b) (2) was nonetheless improper because the District Court in denying such permission was doing no more than exercising a legal discretion which the Court of Appeals did not find to be abused.[30] They point out that Rule 24 (b) explicitly refers to a district judge's permission to intervene as an exercise of *560 discretion,[31] and that this Court has held that "[t]he exercise of discretion in a matter of this sort is not reviewable by an appellate court unless clear abuse is shown . . . ." Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 142; see also Brotherhood of Railroad Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 524. In denying permission to intervene in this case, however, Judge Pence did not purport to weigh the competing considerations in favor of and against intervention, but simply found that the prospective intervenors were absolutely barred by the statute of limitations. This determination was not an exercise of discretion, but rather a conclusion of law which the Court of Appeals correctly found to be erroneous. The judgment of the Court of Appeals reversing the District Court's order directed that the case be remanded "for further proceedings upon the motions [to intervene]." 473 F.2d, at 584. Rather than reviewing an exercise of discretion, the Court of Appeals merely directed that discretion be exercised.[32] V It remains to determine the precise effect the commencement of the class action had on the relevant *561 limitation period. Section 5 (b) of the Clayton Act provides that the running of the statutes of limitations be "suspended" by the institution of a Government antitrust suit based on the same subject matter. The same concept leads to the conclusion that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character. The class suit brought by Utah was filed with 11 days yet to run in the period as tolled by § 5 (b), and the intervenors thus had 11 days after the entry of the order denying them participation in the suit as class members in which to move for permission to intervene. Since their motions were filed only eight days after the entry of Judge Pence's order, it follows that the motions were timely. The judgment of the Court of Appeals for the Ninth Circuit is therefore Affirmed. MR.

This case involves an aspect of the relationship between a statute of limitations and the provisions of Fed. Rule Civ. Proc. 23 regulating class actions in the federal courts. While the question presented is a limited one, the details of the complex proceedings, originating almost a decade ago, must be briefly recounted. On March 10, 1964, a federal grand jury returned indictments charging a number of individuals and companies, including the petitioners here, with criminal violations of 1 of the Sherman Act, as amended, 15 U.S. C. 1. The indictments alleged that the defendants combined and conspired together in restraint of trade in steel and concrete pipe by submitting collusive and rigged bids for the sale of such pipe and by dividing and allocating business among themselves. Shortly thereafter, on June 19, 1964, pleas of nolo contendere were accepted and judgments of guilt were entered. Four days later, on June 23, 1964, the United States filed civil complaints in the United States District Court for the Central District of California against the same companies, which complaints, as subsequently amended, sought to restrain further violations of the Sherman Act and violations of the Clayton and False Claims Acts. These civil actions were the subject of extended negotiations between the Government and the defendants which culminated in a "Final Judgment," entered on May 24, 1968, in which the companies consented to a decree enjoining *541 them from engaging in certain specified future violations of the antitrust laws.[1] Eleven days short of a year later, on May 13, the State of Utah commenced a civil action for treble damages against the petitioners in the United States District Court for the District of Utah, claiming that the petitioners had conspired to rig prices in the sale of concrete and steel pipe in violation of 1 of the Sherman Act. The suit purported to be brought as a class action in which the State represented "public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants" and also those States in the "Western Area" which had not previously filed similar actions. This action was found to be timely under the federal statute of limitations governing antitrust suits[2] because of the provision of 5 (b) of the Clayton Act, as amended, 15 U.S. C. 16 (b), which states that "[w]henever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended *542 during the pendency thereof and for one year thereafter"[3] Since the Government's civil actions against the petitioners had ended in a consent judgment entered on May 24, 1968, Utah's suit, commenced on May 13, was timely under 5 (b), with 11 days to spare.[4] On a motion made by the majority of the petitioners, the suit was subsequently transferred by the Judicial Panel on Multidistrict Litigation from Utah to the United States District Court for the Central District of California for trial by Judge Martin Pence, Chief Judge of the District of Hawaii, sitting in the California District by assignment. The transfer and assignment were found appropriate because of the prior concentration of more than 100 actions arising out of the same factual situation in the Central District of California before Judge Pence. In re Concrete Pipe, In November the petitioners moved for an order pursuant to Fed. Rule Civ. Proc. 23 (c) (1) that the suit could not be maintained as a class action.[5] This motion *543 was subsequently granted. In his memorandum opinion in support of the order granting the motion Judge Pence found that those "Prerequisites to a class action" contained in Rule 23 (a) (2) through (4) appeared to have been met, or at least that minor deficiencies in meeting those standards for determining the suitability of proceeding as a class would "not be fatal to the plaintiffs' class action." 49 F. R. D. 17, 20.[6] But the requirement of Rule 23 (a) (1) that "the class [be] so numerous that joinder of all members is impracticable" was found by Judge Pence not to be satisfied: While the complaint had alleged that the members of the class totaled more than 800, Judge Pence, relying on his extensive experience in dealing with litigation involving the same defendants and similar causes of action, concluded that the number of entities which ultimately could demonstrate injury from the trade practices of the petitioners was far lower, and, further, that "[f]rom prior actual experience in like cases involving the same alleged conspiracy, this court could not find that number so numerous that joinder of all members was impracticable" 49 F. R. D., at 21. On December 12, eight days after entry of the order denying class action status,[7] the respondents, consisting *544 of more than 60 towns, municipalities, and water districts in the State of Utah, all of which had been claimed as members of the original class, filed motions to intervene as plaintiffs in Utah's action either as of right, under Rule 24 (a) (2)[8] or, in the alternative, by permission under Rule 24 (b) (2),[9] and for other relief not pertinent here. On March 30, 1970, the District Court denied the respondents' motion in all respects, concluding that the limitations period imposed by 4B of the Clayton Act, as tolled by 5 (b), had run as to all these respondents and had not been tolled by the institution of the class action in their behalf. 50 F. R. D. 99. On appeal, the Court of Appeals for the Ninth Circuit affirmed as to the denial of leave to intervene as of right under Rule 24 (a) (2), but, with one judge dissenting, reversed as to denial of permission to intervene *545 under Rule 24 (b) (2).[10] Finding that "as to members of the class Utah purported to represent, and whose claims it tendered to the court, suit was actually commenced by Utah's filing," the appellate court concluded that "[i]f the order [denying class action status], through legal fiction, is to project itself backward in time it must fictionally carry backward with it the class members to whom it was directed, and the rights they presently possessed. It cannot leave them temporally stranded in the present." We granted certiorari to consider a seemingly important question affecting the administration of justice in the federal courts. I Under Rule 23 as it stood prior to its extensive amendment in 1966, -1050, a so-called "spurious" class action could be maintained when "the character of the right sought to be enforced for or against the class is several, and there is a common question of law or fact affecting the several rights and a common relief is sought."[11] The Rule, however, contained no mechanism *546 for determining at any point in advance of final judgment which of those potential members of the class claimed in the complaint were actual members and would be bound by the judgment. Rather, "[w]hen a suit was brought by or against such a class, it was merely an invitation to joinder—an invitation to become a fellow traveler in the litigation, which might or might not be accepted." 3B J. Moore, Federal Practice ¶ 23.10 [1], p. *547 23-2603 (2d ed.). Cf. ; Zahn v. International Paper Co., ante, at 296 and n. 6. A recurrent source of abuse under the former Rule lay in the potential that members of the claimed class could in some situations await developments in the trial or even final judgment on the merits in order to determine whether participation would be favorable to their interests. If the evidence at the trial made their prospective position as actual class members appear weak, or if a judgment precluded the possibility of a favorable determination, such putative members of the class who chose not to intervene or join as parties would not be bound by the judgment. This situation—the potential for so-called "one-way intervention"—aroused considerable criticism upon the ground that it was unfair to allow members of a class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.[12] The 1966 amendments were designed, in part, specifically to mend this perceived defect in the former Rule and to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.[13] Under the present Rule, a determination whether an action shall be maintained as a class action is made by the court "[a]s soon as practicable after the commencement of an action brought as a class action" Rule 23 (c) (1).[14] Once it is determined that the action may be maintained as a class action under subdivision *548 (b) (3),[15] the court is mandated to direct to members of the class "the best notice practicable under the circumstances" advising them that they may be excluded from the class if they so request, that they will be bound by the judgment, whether favorable or not if they do not request exclusion, and that a member who does not request exclusion may enter an appearance in the case. Rule 23 (c) (2).[16] Finally, the present Rule provides that in Rule 23 (b) (3) actions the judgment shall include all those found to be members of the class who have received notice and who have not requested exclusion. *549 Rule 23 (c) (3).[17] Thus, potential class members retain the option to participate in or withdraw from the class action only until a point in the litigation "as soon as practicable after the commencement" of the action when the suit is allowed to continue as a class action and they are sent notice of their inclusion within the confines of the class. Thereafter they are either non-parties to the suit and ineligible to participate in a recovery or to be bound by a judgment, or else they are full members who must abide by the final judgment, whether favorable or adverse. Under former Rule 23, there existed some difference of opinion among the federal courts of appeals and district courts as to whether parties should be allowed to join or intervene as members of a "spurious" class after the termination of a limitation period, when the initial class action complaint had been filed before the applicable statute of limitations period had run. A majority of the courts ruling on the question, emphasizing the representative nature of a class suit, concluded that such intervention was proper.[18] Other courts concluded that since a "spurious" class action was essentially a device *550 to permit individual joinder or intervention, each individual so participating would have to satisfy the timeliness requirement.[19] This conflict in the implementation of the former Rule was never resolved by this Court. Under present Rule 23, however, the difficulties and potential for unfairness which, in part, convinced some courts to require individualized satisfaction of the statute of limitations by each member of the class, have been eliminated, and there remain no conceptual or practical obstacles in the path of holding that the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.[20] Whatever the merit in the conclusion that one seeking to join a class after the running of the statutory period asserts a "separate cause of action" which must individually meet the timeliness requirements, such a concept is simply inconsistent with Rule 23 as presently drafted. A federal class action is no longer "an invitation to joinder" but a truly representative suit designed to avoid, rather than encourage, unnecessary filing of repetitious papers and motions. Under the circumstances of this case, where the District Court found that the named plaintiffs asserted claims that were "typical of the claims or defenses of the class" and would "fairly and adequately protect the interests of the class," Rule 23 (a) (3), (4), *551 the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue. Thus, the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs. To hold to the contrary would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties— precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found "superior to other available methods for the fair and efficient adjudication of the controversy." Rule 23 (b) (3). We think no different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit.[21] Rule *552 23 is not designed to afford class action representation only to those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action. During the pendency of the District Court's determination in this regard, which is to be made "as soon as practicable after the commencement of an action," potential class members are mere passive beneficiaries of the action brought in their behalf. Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. It follows that even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings, the later running of the applicable statute of limitations does not bar participation in the class action and in its ultimate judgment. II In the present case the District Court ordered that the suit could not continue as a class action, and the participation denied to the respondents because of the running of the limitation period was not membership in the class, but rather the privilege of intervening in an individual suit pursuant to Rule 24 (b) (2).[22] We hold that in this posture, at least where class action status has been denied *553 solely because of failure to demonstrate that "the class is so numerous that joinder of all members is impracticable," the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. As the Court of Appeals was careful to note in the present case, "[m]aintenance of the class action was denied not for failure of the complaint to state a claim on behalf of the members of the class (the court recognized the probability of common issues of law and fact respecting the underlying conspiracy) [,] not for lack of standing of the representative, or for reasons of bad faith or frivolity." 473 F.2d, (Footnote omitted.) A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court's docket,[23] a rule requiring successful *554 anticipation of the determination of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.[24] This rule is in no way inconsistent with the functional operation of a statute of limitations. As the Court stated in Order of Railroad statutory limitation periods are "designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." The policies of ensuring essential fairness to defendants and of barring a plaintiff who "has slept on his rights," are satisfied when, as here, a named plaintiff who is found *555 to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.[25] Since the imposition of a time bar would not in this circumstance promote the purposes of the statute of limitations, the tolling rule we establish here is consistent both with the procedures of Rule 23 and with the proper function of the limitations statute. While criticisms of Rule 23 and its impact on the federal courts have been both numerous and trenchant, see, e. g., American College of Trial Lawyers, Report and Recommendations of the Special Committee on Rule 23 of the Federal Rules of Civil Procedure (1972); H. Friendly, Federal Jurisdiction: A General View 118-120 (1973); Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits—The Twenty-Third Annual Antitrust Review, 71 Colo. L. Rev. 1, 5-12 (1971); Handler, Twenty-Fourth Annual Antitrust Review, 72 Colo. L. Rev. 1, 34-42 (1972), this interpretation of the Rule *556 is nonetheless necessary to insure effectuation of the purposes of litigative efficiency and economy that the Rule in its present form was designed to serve. III The petitioners contend, however, that irrespective of the policies inherent in Rule 23 and in statutes of limitations, the federal courts are powerless to extend the limitation period beyond the period set by Congress because that period is a "substantive" element of the right conferred on antitrust plaintiffs and cannot be extended or restricted by judicial decision or by court rule.[26] Unlike the situation where Congress has been silent as to the period within which federal rights must be asserted,[27] in the antitrust field Congress has specified a precise limitation period, and further has provided for a tolling period in the event that Government litigation is instituted. The inclusion of the limitation and the tolling period, the petitioners assert, makes the "substantive" statute immune from extension by "procedural" rules. They rely in large part on the Court's decision in The Harrisburg, *557 in which it was stated, with respect to state wrongful-death statutes, "The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." In The Harrisburg, however, the Court dealt with a situation where a plaintiff who was invoking the maritime jurisdiction of a federal court sought relief under a state statute providing for substantive liability.[28] The Court held that when a litigant in a federal court asserted a cause of action based upon a state statute he was bound by the limitation period contained within that statute rather than by a federal time limit. Cf. Guaranty Trust But the Court in The Harrisburg did not purport to define or restrict federal judicial power to delineate circumstances where the applicable statute of limitations would be tolled. As we said in "[w]hile the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled." n. 2. The proper test is not whether a time *558 limitation is "substantive" or "procedural," but whether tolling the limitation in a given context is consonant with the legislative scheme.[29] In recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new ground. In a railroad employee claiming rights under the Federal Employers' Liability Act, 45 U.S. C. 51 et seq., initially brought suit in a state court within the three-year time limitation specifically imposed by 6 of the Act, 45 U.S. C. 56. The state proceeding was subsequently dismissed because of improper venue. Immediately after the dismissal, but also after the running of the limitation period, the employee attempted to bring suit in federal court. Reversing determinations of the District Court and the Court of Appeals that the federal suit was time barred, the Court held that the commencement of the state suit fulfilled the policies of repose and certainty inherent in the limitation provisions and tolled the running of the period. See also *559 Similarly, in cases where the plaintiff has refrained from commencing suit during the period of limitation because of inducement by the defendant, or because of fraudulent concealment, this Court has not hesitated to find the statutory period tolled or suspended by the conduct of the defendant. In the Court specifically rejected a contention by the defendant that when "the time limitation is an integral part of a new cause of action that cause is irretrievably lost at the end of the statutory period." To the contrary, the Court found that the strict command of the limitation period provided in the federal statute was to be suspended by considerations "[d]eeply rooted in our jurisprudence." These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose. IV Finally, the petitioners urge that the Court of Appeals' reversal of the District Court for failure to permit intervention under Rule 24 (b) (2) was nonetheless improper because the District Court in denying such permission was doing no more than exercising a legal discretion which the Court of Appeals did not find to be abused.[30] They point out that Rule 24 (b) explicitly refers to a district judge's permission to intervene as an exercise of *560 discretion,[31] and that this Court has held that "[t]he exercise of discretion in a matter of this sort is not reviewable by an appellate court unless clear abuse is shown" Allen Calculators, ; see also Brotherhood of Railroad In denying permission to intervene in this case, however, Judge Pence did not purport to weigh the competing considerations in favor of and against intervention, but simply found that the prospective intervenors were absolutely barred by the statute of limitations. This determination was not an exercise of discretion, but rather a conclusion of law which the Court of Appeals correctly found to be erroneous. The judgment of the Court of Appeals reversing the District Court's order directed that the case be remanded "for further proceedings upon the motions [to intervene]." 473 F.2d, Rather than reviewing an exercise of discretion, the Court of Appeals merely directed that discretion be exercised.[32] V It remains to determine the precise effect the commencement of the class action had on the relevant *561 limitation period. Section 5 (b) of the Clayton Act provides that the running of the statutes of limitations be "suspended" by the institution of a Government antitrust suit based on the same subject matter. The same concept leads to the conclusion that the commencement of the class action in this case suspended the running of the limitation period only during the pendency of the motion to strip the suit of its class action character. The class suit brought by Utah was filed with 11 days yet to run in the period as tolled by 5 (b), and the intervenors thus had 11 days after the entry of the order denying them participation in the suit as class members in which to move for permission to intervene. Since their motions were filed only eight days after the entry of Judge Pence's order, it follows that the motions were timely. The judgment of the Court of Appeals for the Ninth Circuit is therefore Affirmed. MR.

Justice Marshall

concurring

Milliken v. Bradley

https://www.courtlistener.com/opinion/109723/milliken-v-bradley/

https://www.courtlistener.com/api/rest/v3/clusters/109723/

1976-171

I wholeheartedly join THE CHIEF JUSTICE'S opinion for the Court. My Brother POWELL's opinion prompts these additional comments. What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminatory acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program *292 of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable. It is of course true, as MR. JUSTICE POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right— although I hope not—that this makes the case "wholly different from any prior case," post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, post, at 414. MR. JUSTICE POWELL, concurring in the judgment. The Court's opinion addresses this case as if it were conventional desegregation litigation. The wide-ranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with Brown v. Board of Education, 347 U.S. 483 (1954), and including today's decision in Dayton Board of Education v. Brinkman, post, p. 406. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion. Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the *293 local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal parties—the plaintiffs and the Detroit School Board—no case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals.[1] Thus the only complaining party is the State of Michigan (acting through state officials) and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated "excess cost" of 4 of the 11 educational components *294 included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling.[2] The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds. *295 First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 40-42 (1973); National League of Cities v. Usery, 426 U.S. 833 (1976). But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate. The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, post, at 419-420; Hills v. Gautreaux, 425 U.S. 284, 293-294 (1976); Milliken v. Bradley, 418 U.S. 717, 744 (1974); Austin Independent School Dist. v. United States, 429 U.S. 990, 991 (1976) (POWELL, J., concurring), the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers. This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could *296 fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budget—limited by legislative appropriations—is a genuine one. But it is not an interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations. The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objected—certainly, it does not object here—to the inclusion in the District Court's decree of the seven other educational components. See n. 2, supra. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards "have the primary responsibility for elucidating, assessing, and solving [the] problems" generated by "[f]ull implementation of . . . constitutional principles" in the local setting, Brown v. Board of Education, 349 U.S. 294, 299 (1955), the State's limited challenge here is particularly lacking in force. Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system "chaotic and incapable of effective administration." App. to Pet. for Cert. 124a. The "general superintendent has little direct authority." Ibid. Each of the eight regional boards may be preoccupied with "distribut[ing] local board patronage." Id., at 125a. The "local boards have diverted resources that would otherwise have been *297 available for educational purposes to build new offices and other facilities to house this administrative overload." Ibid. The District Court continued: "In addition to the administrative chaos, we know of no other school system that is so enmeshed in politics. . . . ". . . Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree." Id., at 125a-126a (footnote omitted). Referring again to the "political paralysis" and "inefficient bureaucracy" of the system, the court also noted—discouragingly—that the election then approaching "may well [result in] a board of education consisting of members possessing no experience in education." Id., at 126a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board.[3] *298 Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wide-ranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, post, p. 406. But the majority views the record as justifying the conclusion that "the need for educational components flowed directly from constitutional violations by both state and local officials." Ante, at 282.[4] On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment.

I wholeheartedly join THE CHIEF JUSTICE'S opinion for the Court. My Brother POWELL's opinion prompts these additional comments. What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminatory acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program *9 of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable. It is of course true, as MR. JUSTICE POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right— although I hope not—that this makes the case "wholly different from any prior case," post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, post, at 414. MR. JUSTICE POWELL, concurring in the judgment. The Court's opinion addresses this case as if it were conventional desegregation litigation. The wide-ranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with and including today's decision in Dayton Board of Education v. Brinkman, post, p. 406. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion. Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the *93 local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal parties—the plaintiffs and the Detroit School Board—no case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals.[1] Thus the only complaining party is the State of Michigan (acting through state officials) and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated "excess cost" of 4 of the 11 educational components *94 included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling.[] The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds. *95 First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School ; National League of But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate. The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, post, at 419-40; ; ; Austin Independent School the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers. This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could *96 fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budget—limited by legislative appropriations—is a genuine one. But it is not an interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations. The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objected—certainly, it does not object here—to the inclusion in the District Court's decree of the seven other educational components. See n. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards "have the primary responsibility for elucidating, assessing, and solving [the] problems" generated by "[f]ull implementation of constitutional principles" in the local setting, 349 U.S. 94, 99 the State's limited challenge here is particularly lacking in force. Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system "chaotic and incapable of effective administration." App. to Pet. for Cert. 14a. The "general superintendent has little direct authority." Each of the eight regional boards may be preoccupied with "distribut[ing] local board patronage." at 15a. The "local boards have diverted resources that would otherwise have been *97 available for educational purposes to build new offices and other facilities to house this administrative overload." The District Court continued: "In addition to the administrative chaos, we know of no other school system that is so enmeshed in politics. ". Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree." at 15a-16a (footnote omitted). Referring again to the "political paralysis" and "inefficient bureaucracy" of the system, the court also noted—discouragingly—that the election then approaching "may well [result in] a board of education consisting of members possessing no experience in education." at 16a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board.[3] *98 Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wide-ranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, post, p. 406. But the majority views the record as justifying the conclusion that "the need for educational components flowed directly from constitutional violations by both state and local officials." Ante, at 8.[4] On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment.

Justice Stevens

dissenting

United States v. Taylor

https://www.courtlistener.com/opinion/112129/united-states-v-taylor/

https://www.courtlistener.com/api/rest/v3/clusters/112129/

1987-139

This is the kind of case that reasonable judges may decide differently. The issues have been narrowed by the Government's abandonment of the two principal arguments that it advanced in the District Court and in the Court of Appeals.[1] But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there is room for disagreement between conscientious and reasonable judges. The question, however, is one that district judges are in a much better position to answer wisely than are appellate judges. A judge who has personally participated in the series of events that culminates in an order of dismissal has a much better understanding, not only of what actually happened, but also of the significance of certain events, than does a judge who must reconstruct that history from a confusing sequence of written orders and motions. Moreover, the trial judge is privy to certain information not always reflected in the appellate record, such as her impression of the demeanor and attitude[2] of the parties, her intentions in handling the future course of the proceedings, and her understanding of how *347 the limited issue faced on appeal fits within the larger factual and procedural context. I am convinced that in this case the District Judge made the sort of reasoned judgment that we as appellate judges would do well not to second-guess. This is not a case in which dismissal with prejudice resulted in a dangerous criminal promptly returning to society without suffering substantial punishment for his wrongs. Rather, the District Court only dismissed the charges dealing with narcotics violations, while denying the motion to dismiss the failure-to-appear charge.[3] On that count, after respondent entered a guilty plea, the judge sentenced respondent to five years' imprisonment, the maximum permissible sentence. That sentence was more severe than the 3-year sentence she imposed on respondent's original codefendant who was found guilty on charges that paralleled the two dismissed counts. The majority, however, declines to consider this important fact, concluding that it would have been improper for the District Judge to have given any weight to the presence of the remaining charge. I strongly disagree. Even though respondent was entitled to a presumption of innocence on the failure-to-appear charge, I believe it would be entirely proper to consider the strong possibility of conviction — given the fact that respondent's flight occurred shortly before his case was to be tried, the fact that a failure-to-appear prosecution generally does not involve even moderately complicated *348 issues of proof, and the further fact that the circumstances of his subsequent arrest and detention had been fully explored in connection with the motion to dismiss the narcotics charges — and to conclude that even if respondent was guilty of the narcotics charges, a dismissal with prejudice would not mean that he would return to society unpunished. Although "at the time the District Court decided to dismiss the drug charges against respondent, . . . the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing," ante, at 338, the judge undoubtedly could have assumed that there was a high probability that the Government could prove its case. Nor would such an assumption have interfered with the presumption of innocence. The presumption is, after all, for the benefit of the accused and not the Government. The majority further posits that it would have been "highly improper" for the judge in sentencing respondent on the failure-to-appear charge to consider the dismissed narcotics charges. In my view, just the contrary holds — the facts of the dismissed narcotics charges were highly relevant and should properly have been considered. The statute respondent was charged under defined two classes of violations, each carrying a different sentencing range. Under that statute, a defendant who failed to appear to face felony charges could be sentenced to up to five years' imprisonment, while a defendant who failed to appear to face misdemeanor charges could not be sentenced to more than one year's imprisonment. See 18 U.S. C. § 3150. For the same reason that the statute differentiated between those who fail to appear to face felony and misdemeanor charges, I would think that the severity of the pending charge would be relevant to the determination of where within the 5-year range to fix sentence. While flight to avoid a relatively minor felony charge would not generally merit a 5-year sentence (particularly in cases in which the possible sentence for the underlying charge is substantially less than five years), flight to avoid a murder trial *349 might well warrant the maximum sentence. In fact, the current statute now imposes four — rather than two — possible sentencing ranges, varying more acutely with the severity of the underlying alleged offense. See 18 U.S. C. § 3146 (1982 ed., Supp. IV). In addition, the majority appears to assume that the District Judge intended to impose a higher sentence for the failure-to-appear charge based on her "untested and unsubstantiated assumption of what the facts might have been shown to be with regard to the drug charges." Ante, at 338, n. 9. Yet, there is no basis for Court's assumption that the judge planned to take into account the narcotics charge without informing the parties of her intention to do so and without permitting them the opportunity to proffer relevant evidence. Indeed, the concern the Court expresses today did not come to fruition in this case. Not only has respondent not complained of unfair treatment, his attorney informs us that respondent requested to be sentenced "for [his] total conduct." Tr. of Oral Arg. 32. The greater risk of unfair treatment is presented by the possibility that respondent will now be sentenced twice for the same misconduct. Nor can I agree with the Court's conclusion that the District Court did not offer any "indication of the foundation for its conclusion" that the Government's conduct leading to the Speedy Trial violation was "lackadaisical." Ante, at 338. Of particular importance, the District Judge found that the clock ran, in part, as a result of the Marshals Service's failure to comply with a court order from a San Mateo County judge requiring that respondent be produced in state court. See App. to Pet. for Cert. 28a, 30a. Failure to comply with a court order is certainly a serious matter, and, if anything, the District Court's characterization of such a violation as "lackadaisical" appears understated. Although the dissenting judge on the Court of Appeals expressed the view that a state court judge cannot order that the United States Marshal produce a defendant and that the respondent could have *350 been transferred to state custody at any time the local authorities arrived at the San Francisco County jail with the required papers, 821 F.2d 1377, 1387 (CA9 1987), the important issue is not whether the Marshals Service was technically in contempt, but whether the Service acted carelessly or without regard for respondent's and the public's interest in seeing justice administered swiftly. This is precisely the sort of issue that is more difficult for an appellate court than for a district court to address. On the record before us, I do not know whether I would have dismissed counts I and II with prejudice had I been confronted with the issue as a district judge. As a district judge, I would know that a dismissal without prejudice would be a rather meaningless sanction unless, of course, the statutes of limitations had run, in which event the choice between dismissal with and without prejudice would itself be meaningless. I would also know — especially if I had foreknowledge of the opinion announced today — that I could best avoid reversal by adopting a consistent practice of dismissing without prejudice, even though such a practice would undermine the years of labor that have gone into enacting and construing the Speedy Trial Act. I would have assumed, however, that the choice of remedy was one that was committed to my discretion and that if I set forth a sensible explanation for my choice that it would withstand appellate review. Although the Court's opinion today boils down to a criticism of the adequacy of the District Judge's explanation for her ruling, see ante, at 342-343, her opinion identifies the correct statutory criteria and, in my view, proceeds to apply them in a clear and sensible fashion. After explaining why she found the Government's legal arguments to be without merit, she wrote: "To summarize the above discussion, the conclusion is inescapable that the government did violate the [Speedy Trial Act (STA)]. The court rules that, even allowing the government a full ten days to effectuate the defendant's *351 return to this district, there elapsed at least fourteen days of nonexcludable time in excess of the 70-day requirement set forth in § 3161(c)(1) prior to April 24, 1985, the date on which the government filed the superseding indictment against defendant. Therefore, pursuant to § 3162(2), Counts I and II of the . . . indictment must be dismissed. The real question is whether this dismissal should be with or without prejudice. On this point, the STA, § 3162(2), provides as follows: " `In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.' "Regarding the first factor as applied to the instant case, there is no question that the drug violations with which the defendant is charged are serious. However, the second factor, the circumstances of the case leading to the dismissal, tends strongly to support the conclusion that the dismissal must be with prejudice. There is simply no excuse for the government's lackadaisical behavior in this case. Despite the government's insistence on the temporary nature of the federal custody from February 7 until February 28, 1985, the [United States Marshals Service (USMS)] did not return defendant to state authorities after the purported reason for that temporary custody had ended on February 22, 1985. Even more telling is the failure of the USMS to produce defendant on February 28, 1985 pursuant to a specific court order from a San Mateo County judge. "After the state hold was dropped, it took the government six more days to arrange for defendant's initial appearance before a magistrate despite the fact that he had been in federal custody in the district for almost a *352 month. Nor did the order of removal issued on April 3 prompt any particular show of concern on the government's part. Instead of responding with dispatch, the government apparently placed more value on accommodating the convenience of the USMS than on complying with the plain language of the STA. Pursuant to the third factor, the court concludes that the administration of the STA and of justice would be seriously impaired if the court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the STA would become a hollow guarantee. Counts I and II of the . . . indictment must be dismissed with prejudice." App. to Pet. for Cert. 29a-31a (footnote omitted). Congress enacted the Speedy Trial Act because of its concern that this Court's previous interpretations of the Sixth Amendment right to a speedy trial had drained the constitutional right of any "real meaning."[4] The Judiciary Committees in both the Senate and the House of Representatives recognized that unless violations of the Act generally required dismissals with prejudice — as was the rule in several States — the Act would be unlikely to accomplish its purposes.[5] As the Court correctly notes, this view was compromised *353 by amendments during the floor debates. See ante, at 334-335. The compromise, however, was one that was intended to give district judges discretion to choose the proper remedy based on factors identified in Judge Rothstein's opinion in this case. See 120 Cong. Rec. 41777-41778 (1974) (remarks of Reps. Cohen and Dennis). If that discretion is not broad enough to sustain her decision, as the Court now concludes, the statute is surely nothing more than the "hollow guarantee" that she described. I respectfully dissent.

This is the kind of case that reasonable judges may decide differently. The issues have been narrowed by the Government's abandonment of the two principal arguments that it advanced in the District Court and in the Court of Appeals.[1] But even on the remaining question whether the dismissal of two of the three counts pending against respondent should have been with or without prejudice, there is room for disagreement between conscientious and reasonable judges. The question, however, is one that district judges are in a much better position to answer wisely than are appellate judges. A judge who has personally participated in the series of events that culminates in an order of dismissal has a much better understanding, not only of what actually happened, but also of the significance of certain events, than does a judge who must reconstruct that history from a confusing sequence of written orders and motions. Moreover, the trial judge is privy to certain information not always reflected in the appellate record, such as her impression of the demeanor and attitude[2] of the parties, her intentions in handling the future course of the proceedings, and her understanding of how *347 the limited issue faced on appeal fits within the larger factual and procedural context. I am convinced that in this case the District Judge made the sort of reasoned judgment that we as appellate judges would do well not to second-guess. This is not a case in which dismissal with prejudice resulted in a dangerous criminal promptly returning to society without suffering substantial punishment for his wrongs. Rather, the District Court only dismissed the charges dealing with narcotics violations, while denying the motion to dismiss the failure-to-appear charge.[3] On that count, after respondent entered a guilty plea, the judge sentenced respondent to five years' imprisonment, the maximum permissible sentence. That sentence was more severe than the 3-year sentence she imposed on respondent's original codefendant who was found guilty on charges that paralleled the two dismissed counts. The majority, however, declines to consider this important fact, concluding that it would have been improper for the District Judge to have given any weight to the presence of the remaining charge. I strongly disagree. Even though respondent was entitled to a presumption of innocence on the failure-to-appear charge, I believe it would be entirely proper to consider the strong possibility of conviction — given the fact that respondent's flight occurred shortly before his case was to be tried, the fact that a failure-to-appear prosecution generally does not involve even moderately complicated *348 issues of proof, and the further fact that the circumstances of his subsequent arrest and detention had been fully explored in connection with the motion to dismiss the narcotics charges — and to conclude that even if respondent was guilty of the narcotics charges, a dismissal with prejudice would not mean that he would return to society unpunished. Although "at the time the District Court decided to dismiss the drug charges against respondent, the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing," ante, at 338, the judge undoubtedly could have assumed that there was a high probability that the Government could prove its case. Nor would such an assumption have interfered with the presumption of innocence. The presumption is, after all, for the benefit of the accused and not the Government. The majority further posits that it would have been "highly improper" for the judge in sentencing respondent on the failure-to-appear charge to consider the dismissed narcotics charges. In my view, just the contrary holds — the facts of the dismissed narcotics charges were highly relevant and should properly have been considered. The statute respondent was charged under defined two classes of violations, each carrying a different sentencing range. Under that statute, a defendant who failed to appear to face felony charges could be sentenced to up to five years' imprisonment, while a defendant who failed to appear to face misdemeanor charges could not be sentenced to more than one year's imprisonment. See 18 U.S. C. 3150. For the same reason that the statute differentiated between those who fail to appear to face felony and misdemeanor charges, I would think that the severity of the pending charge would be relevant to the determination of where within the 5-year range to fix sentence. While flight to avoid a relatively minor felony charge would not generally merit a 5-year sentence (particularly in cases in which the possible sentence for the underlying charge is substantially less than five years), flight to avoid a murder trial *349 might well warrant the maximum sentence. In fact, the current statute now imposes four — rather than two — possible sentencing ranges, varying more acutely with the severity of the underlying alleged offense. See 18 U.S. C. 3146 (1982 ed., Supp. IV). In addition, the majority appears to assume that the District Judge intended to impose a higher sentence for the failure-to-appear charge based on her "untested and unsubstantiated assumption of what the facts might have been shown to be with regard to the drug charges." Ante, at 338, n. 9. Yet, there is no basis for Court's assumption that the judge planned to take into account the narcotics charge without informing the parties of her intention to do so and without permitting them the opportunity to proffer relevant evidence. Indeed, the concern the Court expresses today did not come to fruition in this case. Not only has respondent not complained of unfair treatment, his attorney informs us that respondent requested to be sentenced "for [his] total conduct." Tr. of Oral Arg. 32. The greater risk of unfair treatment is presented by the possibility that respondent will now be sentenced twice for the same misconduct. Nor can I agree with the Court's conclusion that the District Court did not offer any "indication of the foundation for its conclusion" that the Government's conduct leading to the Speedy Trial violation was "lackadaisical." Ante, at 338. Of particular importance, the District Judge found that the clock ran, in part, as a result of the Marshals Service's failure to comply with a court order from a San Mateo County judge requiring that respondent be produced in state court. See App. to Pet. for Cert. 28a, 30a. Failure to comply with a court order is certainly a serious matter, and, if anything, the District Court's characterization of such a violation as "lackadaisical" appears understated. Although the dissenting judge on the Court of Appeals expressed the view that a state court judge cannot order that the United States Marshal produce a defendant and that the respondent could have *350 been transferred to state custody at any time the local authorities arrived at the San Francisco County jail with the required papers, the important issue is not whether the Marshals Service was technically in contempt, but whether the Service acted carelessly or without regard for respondent's and the public's interest in seeing justice administered swiftly. This is precisely the sort of issue that is more difficult for an appellate court than for a district court to address. On the record before us, I do not know whether I would have dismissed counts I and II with prejudice had I been confronted with the issue as a district judge. As a district judge, I would know that a dismissal without prejudice would be a rather meaningless sanction unless, of course, the statutes of limitations had run, in which event the choice between dismissal with and without prejudice would itself be meaningless. I would also know — especially if I had foreknowledge of the opinion announced today — that I could best avoid reversal by adopting a consistent practice of dismissing without prejudice, even though such a practice would undermine the years of labor that have gone into enacting and construing the Speedy Trial Act. I would have assumed, however, that the choice of remedy was one that was committed to my discretion and that if I set forth a sensible explanation for my choice that it would withstand appellate review. Although the Court's opinion today boils down to a criticism of the adequacy of the District Judge's explanation for her ruling, see ante, at 342-343, her opinion identifies the correct statutory criteria and, in my view, proceeds to apply them in a clear and sensible fashion. After explaining why she found the Government's legal arguments to be without merit, she wrote: "To summarize the above discussion, the conclusion is inescapable that the government did violate the [Speedy Trial Act (STA)]. The court rules that, even allowing the government a full ten days to effectuate the defendant's *351 return to this district, there elapsed at least fourteen days of nonexcludable time in excess of the 70-day requirement set forth in 3161(c)(1) prior to April 24, 1985, the date on which the government filed the superseding indictment against defendant. Therefore, pursuant to 3162(2), Counts I and II of the indictment must be dismissed. The real question is whether this dismissal should be with or without prejudice. On this point, the STA, 3162(2), provides as follows: " `In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.' "Regarding the first factor as applied to the instant case, there is no question that the drug violations with which the defendant is charged are serious. However, the second factor, the circumstances of the case leading to the dismissal, tends strongly to support the conclusion that the dismissal must be with prejudice. There is simply no excuse for the government's lackadaisical behavior in this case. Despite the government's insistence on the temporary nature of the federal custody from February 7 until February 28, 1985, the [United States Marshals Service (USMS)] did not return defendant to state authorities after the purported reason for that temporary custody had ended on February 22, 1985. Even more telling is the failure of the USMS to produce defendant on February 28, 1985 pursuant to a specific court order from a San Mateo County judge. "After the state hold was dropped, it took the government six more days to arrange for defendant's initial appearance before a magistrate despite the fact that he had been in federal custody in the district for almost a *352 month. Nor did the order of removal issued on April 3 prompt any particular show of concern on the government's part. Instead of responding with dispatch, the government apparently placed more value on accommodating the convenience of the USMS than on complying with the plain language of the STA. Pursuant to the third factor, the court concludes that the administration of the STA and of justice would be seriously impaired if the court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the STA would become a hollow guarantee. Counts I and II of the indictment must be dismissed with prejudice." App. to Pet. for Cert. 29a-31a (footnote omitted). Congress enacted the Speedy Trial Act because of its concern that this Court's previous interpretations of the Sixth Amendment right to a speedy trial had drained the constitutional right of any "real meaning."[4] The Judiciary Committees in both the Senate and the House of Representatives recognized that unless violations of the Act generally required dismissals with prejudice — as was the rule in several States — the Act would be unlikely to accomplish its purposes.[5] As the Court correctly notes, this view was compromised *353 by amendments during the floor debates. See ante, at 334-335. The compromise, however, was one that was intended to give district judges discretion to choose the proper remedy based on factors identified in Judge Rothstein's opinion in this case. See 120 Cong. Rec. 41777-41778 (1974) (remarks of Reps. Cohen and Dennis). If that discretion is not broad enough to sustain her decision, as the Court now concludes, the statute is surely nothing more than the "hollow guarantee" that she described. I respectfully dissent.

Justice Kennedy

majority

Burlington Industries, Inc. v. Ellerth

https://www.courtlistener.com/opinion/118244/burlington-industries-inc-v-ellerth/

https://www.courtlistener.com/api/rest/v3/clusters/118244/

1997-101

We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et *747 seq. , an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. I Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. In the hierarchy of Burlington's management structure, Slowik was a midlevel manager. Burlington has eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See 912 F. Supp. 1101, 1119, n. 14 (ND Ill. 1996). According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Ibid. Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York. Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her *748 tangible job benefits. In the summer of 1993, while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Kim, I could make your life very hard or very easy at Burlington." Id. , at 156. In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." Id. , at 159. The comment was followed by his reaching over and rubbing her knee. Ibid. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." Id. , at 159-160. In May 1994, Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim . . .— unless you want to tell me what you're wearing." Id. , at 78. Ellerth told Slowik she had to go and ended the call. Ibid. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." Id. , at 79. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. 912 F. Supp., at 1109. In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. Ibid. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. Ibid. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Ibid. *749 In fact, she chose not to inform her immediate supervisor (not Slowik) because "`it would be his duty as my supervisor to report any incidents of sexual harassment.' " Ibid. On one occasion, she told Slowik a comment he made was inappropriate. Ibid. In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted summary judgment to Burlington. The court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the court noted Ellerth had not used Burlington's internal complaint procedures. Id. , at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. Id. , at 1121. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See id. , at 1123. The District Court also dismissed Ellerth's constructive discharge claim. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. Jansen v. Packing Corp. *750 of America, 123 F.3d 490, 494 (CA7 1997) (per curiam) . With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. Ibid. The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. Ibid. They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's threat to inflict a tangible job injury whether or not it was completed. Id. , at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo. Id. , at 565. Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. Id. , at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. Id. , at 505. Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "act[s] that significantly alte[r] the terms or conditions of employment," or "company act[s]." Id. , at 515. In the emergent terminology, an unfulfilled quid pro quo is a *751 mere threat to do a company act rather than the act itself, and in these circumstances, an employer can be found liable for its negligence only. Ibid. Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. Id. , at 517. Judge Coffey rejected all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. Id. , at 518. The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. 522 U.S. 1086 (1998). II At the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: A trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility. Section 703(a) of Title VII forbids "an employer— "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or *752 privileges of employment, because of such individual's. . . sex." 42 U.S. C. § 2000e—2(a)(1). "Quid pro quo " and "hostile work environment" do not appear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e. g., Henson v. Dundee, 682 F.2d 897, 909 (CA11 1982); and were mentioned in this Court's decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307 (1998). In Meritor, the terms served a specific and limited purpose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see 477 U.S., at 65, and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. Ibid. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. On this question Meritor held, with no further specifics, that agency principles controlled. Id. , at 72. Nevertheless, as use of the terms grew in the wake of Meritor, they acquired their own significance. The standard of employer responsibility turned on which type of harassment *753 occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See Davis v. Sioux City, 115 F.3d 1365, 1367 (CA8 1997); Nichols v. Frank, 42 F.3d 503, 513— 514 (CA9 1994); Bouton v. BMW of North America, Inc., 29 F.3d 103, 106-107 (CA3 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (CA10 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185-186 (CA6), cert. denied, 506 U.S. 1041 (1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (CA11 1989). The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks: "Whether a claim of quid pro quo sexual harassment may be stated under Title VII . . . where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" Pet. for Cert. i. We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the *754 employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See supra, at 749. The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability. That is the question we must resolve. III We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents." 42 U.S. C. § 2000e(b); see Meritor, supra, at 72. In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these *755 terms." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989). The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute . . . , but, rather, to the judicial `creation' of a special federal rule of decision." Atherton v. FDIC, 519 U.S. 213, 218 (1997). State-court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal-court decisions under Title VII. E. g., Arizona v. Schallock, 189 Ariz. 250, 259, 941 P.2d 1275, 1284 (1997); Lehmann v. Toys `R' Us, Inc., 132 N. J. 587, 622, 626 A.2d 445, 463 (1993); Thompson v. Berta Enterprises, Inc., 72 Wash. App. 531, 537-539, 864 P.2d 983, 986-988 (1994). As Meritor acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement) is a useful beginning point for a discussion of general agency principles. 477 U.S., at 72. Since our decision in Meritor, federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." Ibid. The EEOC has issued Guidelines governing sexual harassment claims under Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR § 1604.11(c) (1997) (vicarious liability for supervisor harassment turns on "the particular employment relationship and the job functions performed by the individual"). A Section 219(1) of the Restatement sets out a central principle of agency law: *756 "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Mechem, Outlines of the Law of Agency § 394, p. 266 (P. Mechem 4th ed. 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement §§ 228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts § 70, at 505-506. As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e. g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (CA10 1997), vacated on other grounds, post, p. 947; Torres v. Pisano, 116 F.3d 625, 634, n. 10 (CA2 1997). But see Kauffman v. Allied Signal, Inc. , 970 F. 2d, at 184-185 (holding harassing supervisor acted within scope of employment, *757 but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. Mechem, supra, § 368 ("[F]or the time being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement § 235, Illustration 2 (tort committed while "[a]cting purely from personal ill will" not within the scope of employment); id., Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E. g., Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1075 (MD Ala. 1990) (supervisor acting in scope of employment where employer has a policy of discouraging women from seeking advancement and "sexual harassment was simply a way of furthering that policy"). The concept of scope of employment has not always been construed to require a motive to serve the employer. E. g., Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167, 172 (CA2 1968). Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U.S. C. § 1346(b); see, e. g., Jamison v. Wiley, 14 F.3d 222, 237 (CA4 1994) (supervisor's unfair criticism of subordinate's work in retaliation for rejecting his sexual advances not within scope of employment); Wood v. United States, 995 F.2d 1122, 1123 (CA1 1993) (Breyer, C. J.) (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.07[4], p. 9-211 (1998). The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. *758 B Scope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited § 219(2) of the Restatement: "(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a) the master intended the conduct or the consequences, or "(b) the master was negligent or reckless, or "(c) the conduct violated a non-delegable duty of the master, or "(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." See also § 219, Comment e (Section 219(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment"). Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the company makes him or her the employer's alter ego. None of the parties contend Slowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See § 219(2)(c). So, for our purposes here, subsections (a) and (c) can be put aside. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negligence. *759 § 219(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Ibid. As other federal decisions have done in discussing vicarious liability for supervisor harassment, e. g., Henson v. Dundee, 682 F.2d 897, 909 (CA11 1982), we begin with § 219(2)(d). C As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Compare Restatement § 6 (defining "power") with § 8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement § 8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liability *760 based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. D We turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Gary v. Long, 59 F.3d 1391, 1397 (CADC 1995). Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e. g., Blankenship v. Parke Care Centers, Inc. , 123 F.3d 868, 872 (CA6 1997), cert. denied, 522 U.S. 1110 (1998) (sex discrimination); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (CA7 1996) (sex discrimination); Daniels v. Essex Group, Inc. , 937 F.2d 1264, 1273 (CA7 1991) (race discrimination); see also 29 CFR § 1604.11(d) (1997) ("knows or should have known" standard of liability for cases of harassment between "fellow employees"). The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e. g., Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (CA10 1993) ("`If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing . . .' "). *761 In Meritor, we acknowledged this consensus. See 477 U.S., at 70-71 ("[T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor's actions"). Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (CA7 1993) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (CA7 1994) (a "bruised ego" is not enough), Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (CA6 1996) (demotion without change in pay, benefits, duties, or prestige insufficient), and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (CA8 1994) (reassignment to more inconvenient job insufficient). When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted *762 absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. See Gary, supra, at 1397; Henson, 682 F. 2d, at 910; Barnes v. Costle, 561 F.2d 983, 996 (CADC 1977) (MacKinnon, J., concurring). But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E. g., Shager v. Up john Co., 913 F.2d 398, 405 (CA7 1990) (noting that the supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the committee functioned as the supervisor's "cat'spaw"). The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See Kotcher v. Rosa & Sullivan Appliance Center, Inc. , 957 F.2d 59, 62 (CA2 1992) ("From the perspective of the employee, the supervisor and the employer merge into a single entity"). For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action *763 against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as Meritor itself appeared to acknowledge. See supra, at 760-761. Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See Meritor, 477 U. S., at 77 (Marshall, J., concurring in judgment) ("[I]t is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates"). On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See id., at 72 ("Congress' decision to define `employer' to include any `agent' of an employer, 42 U.S. C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Mer- *764 itor `s rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) ("[W]e must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation"). Although Meritor suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See 477 U.S., at 72 ("common-law principles may not be transferable in all their particulars to Title VII"). For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984), and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR § 1604.11(f) (1997); EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19, 1990). To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 358 (1995). As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor Co. v. EEOC, 458 U.S. 219, 231, n. 15 (1982), and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances. In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, p. 775, also decided today. *765 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. IV Relying on existing case law which held out the promise of vicarious liability for all quid pro quo claims, see supra, at 752-753, Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, see supra, at 754, Ellerth *766 should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See supra, at 765. For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Ginsburg, concurring in the judgment.

We decide whether, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et *747 seq. an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. I Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March until May Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. In the hierarchy of Burlington's management structure, Slowik was a midlevel manager. Burlington has eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York. Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her *748 tangible job benefits. In the summer of while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Kim, I could make your life very hard or very easy at Burlington." at 156. In March when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." at 159. The comment was followed by his reaching over and rubbing her knee. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." at 159-160. In May Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim— unless you want to tell me what you're wearing." at 78. Ellerth told Slowik she had to go and ended the call. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." at 79. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. *749 In fact, she chose not to inform her immediate supervisor (not Slowik) because "`it would be his duty as my supervisor to report any incidents of sexual harassment.' " On one occasion, she told Slowik a comment he made was inappropriate. In October after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted summary judgment to Burlington. The court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the court noted Ellerth had not used Burlington's internal complaint procedures. at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. at 11. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See at The District Court also dismissed Ellerth's constructive discharge claim. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's threat to inflict a tangible job injury whether or not it was completed. at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo. at 565. Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. at 505. Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "act[s] that significantly alte[r] the terms or conditions of employment," or "company act[s]." at 515. In the emergent terminology, an unfulfilled quid pro quo is a *751 mere threat to do a company act rather than the act itself, and in these circumstances, an employer can be found liable for its negligence only. Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. at 517. Judge Coffey rejected all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. at 518. The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. II At the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: A trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility. Section 703(a) of Title VII forbids "an employer— "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or *752 privileges of employment, because of such individual's. sex." 42 U.S. C. 2000e—2(a)(1). "Quid pro quo " and "hostile work environment" do not appear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e. g., ; and were mentioned in this Court's decision in Savings Bank, See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, Harv. J. L. & Pub. Policy 307 In the terms served a specific and limited purpose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. On this question held, with no further specifics, that agency principles controlled. Nevertheless, as use of the terms grew in the wake of they acquired their own significance. The standard of employer responsibility turned on which type of harassment *753 occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See ; ; ; ; (CA6), cert. denied, ; The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks: "Whether a claim of quid pro quo sexual harassment may be stated under Title VII where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" Pet. for Cert. i. We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the *754 employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See ; For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability. That is the question we must resolve. III We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents." 42 U.S. C. 2000e(b); see In express terms, Congress has directed federal courts to interpret Title VII based on agency Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these *755 terms." Community for Creative The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute but, rather, to the judicial `creation' of a special federal rule of decision." 519 U.S. 3, 8 State-court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal-court decisions under Title VII. E. g., ; ; As acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement) is a useful beginning point for a discussion of general agency 4 U.S., Since our decision in federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." The EEOC has issued Guidelines governing sexual harassment claims under Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR 1604.11(c) A Section 9(1) of the Restatement sets out a central principle of agency law: *756 "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 70, p. 505 (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Outlines of the Law of Agency 394, p. 266 (P. 4th ed. 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement 228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts 70, at 505-506. As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e. g., vacated on other grounds, post, p. 947; But see 970 F. 2d, at 184-185 (holding harassing supervisor acted within scope of employment, *757 but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. 368 ("[F]or the time being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement 235, Illustration 2 (tort committed while "[a]cting purely from personal ill will" not within the scope of employment); Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E. g., The concept of scope of employment has not always been construed to require a motive to serve the employer. E. g., Ira S. Bushey & Sons, Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U.S. C. 1346(b); see, e. g., ; (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims 9.07[4], p. 9-1 The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. *758 B Scope of employment does not define the only basis for employer liability under agency In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited 9(2) of the Restatement: "(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a) the master intended the conduct or the consequences, or "(b) the master was negligent or reckless, or "(c) the conduct violated a non-delegable duty of the master, or "(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." See also 9, Comment e (Section 9(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment"). Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the company makes him or her the employer's alter ego. None of the parties contend Slowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See 9(2)(c). So, for our purposes here, subsections (a) and (c) can be put aside. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negligence. *759 9(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 9(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). As other federal decisions have done in discussing vicarious liability for supervisor harassment, e. g., we begin with 9(2)(d). C As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Compare Restatement 6 (defining "power") with 8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement 8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liability *760 based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. D We turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e. g., cert. denied, ; ; ; see also 29 CFR 1604.11(d) The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e. g., *761 In we acknowledged this consensus. See -71 Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with and When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted *7 absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. See at ; Henson, 682 F. 2d, at 910; But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E. g., The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action *763 against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as itself appeared to acknowledge. See Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See ("[I]t is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates"). On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See ("Congress' decision to define `employer' to include any `agent' of an employer, 42 U.S. C. 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Mer- *764 itor `s rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Although suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See 4 U.S., For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR 1604.11(f) ; EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual :6699 To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose. See As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor 458 U.S. 9, and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances. In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, p. 5, also decided today. *765 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. IV Relying on existing case law which held out the promise of vicarious liability for all quid pro quo claims, see Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, see Ellerth *766 should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Ginsburg, concurring in the judgment.

Justice Burger

majority

Mathews v. Weber

https://www.courtlistener.com/opinion/109343/mathews-v-weber/

https://www.courtlistener.com/api/rest/v3/clusters/109343/

1975-023

The question presented in this case is whether the Federal Magistrates Act, 28 U.S. C. § 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination—all subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew. (1) Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education, and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, 79 Stat. 291, and amended, 42 U.S. C. § 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by § 205 (g) of the Federal Magistrates Act, as added, 53 Stat. 1370, and amended, 42 U.S. C. § 405 (g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary's findings of fact so long as they are supported by substantial evidence. When respondent's complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions "to notice and conduct such factual hearings and legal argument as may be appropriate" and to "prepare a proposed written order or decision, together with proposed findings of fact and *264 conclusions of law where necessary or appropriate" for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 104-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases,[1] including actions filed under 42 U.S. C. § 405 (g). *265 The parties may object to the magistrate's recommendations. After acting on any objections the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the district judge "will calendar the matter for oral argument before him if he deems it necessary or appropriate." The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed. Rule Civ. Proc. 53 (b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U.S. C. § 1292 (b). The Court of Appeals affirmed. 503 F.2d 1049 (CA9 1974). That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U.S. C. § 405 (g), the limited scope of the Magistrate's role on reference, and the fact that final authority for decision remained with the District Judge. "Were the broad provisions of General Order No. 104-D . . . before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted." 503 F.2d, at 1051. The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in Ingram v. Richardson, 471 F.2d 1268 (1972). We granted certiorari, 420 U.S. 989 (1975),[2] and we affirm. *266 (2) After several years of study, the Congress in 1968 enacted the Federal Magistrates Act, 28 U.S. C. § 631 et seq. The Act abolished the office of United States commissioner, and sought to "reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U. S. magistrates." S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that wherever possible the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties. Title 28 U.S. C. § 636 (b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides: "Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to— *267 "(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts; "(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and "(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." The three examples § 636 (b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings: "The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all. "We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U. S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts." Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings). See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th *268 Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings). Section 636 (b) was included to "permit . . . the U. S. district courts to assign magistrates, as officers of the courts, a variety of functions . . . presently performable only by the judges themselves." Senate Report 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by "increasing the scope of the responsibilities that can be discharged by that office, . . . to establish a system capable of increasing the overall efficiency of the Federal judiciary . . . ." Id., at 11. The Act grew from Congress' recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent[3] urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a "para-judge," as respondent would have it, or a "supernotary," as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners.[4] The *269 office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied district judges. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 (1975). See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 (1974); Geffen, Practice Before the United States Magistrate, 47 L. A. Bar Bull. 462 (1972); Doyle, Implementing the Federal Magistrates Act, 39 J. Kan. Bar Assn. 25 (1970). Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128.[5] The hearings and committee *270 reports indicate that in § 636 (b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is "not inconsistent with the Constitution and laws of the United States . . . ." Second, Congress limited the magistrate's role in cases referred to him under § 636 (b). The Act's sponsors made it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. "[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction." House Hearings 73 (testimony of Sen. Tydings). See also id., at 127 (testimony of Asst. Deputy Atty. Gen. Finley). (3) We need not define the full reach of a magistrate's authority under the Act, or reach the broad provisions of General Order No. 104-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record— closed because under § 205 (g) of the Social Security Act, 42 U.S. C. § 405 (g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary's decision?[6] The magistrate may do no more than propose *271 a recommendation, and neither § 636 (b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority—and the responsibility—to make an informed, final determination, we emphasize, remains with the judge. The magistrate's limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate's review helps focus the court's attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate's report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly. We conclude that in the context of this case the preliminary-review function assigned to the magistrate, and *272 at issue here, is one of the "additional duties" that the statute contemplates magistrates are to perform.[7] (4) The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed. Rule Civ. Proc. 53 (b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." He also argues that, for similar reasons, the reference here is *273 not permissible under our decision in La Buy v. Howes Leather Co., 352 U.S. 249 (1957).[8] Section 636 (b) expressly provides that a district court may, in an appropriate case and in accordance with Fed. Rule Civ. Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53 (e) provides that, in nonjury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master. The Secretary argues that the magistrate will be a master in fact because the judge will accept automatically the recommendation made in every case. Nothing *274 in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 104-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates. Our decision in La Buy v. Howes Leather Co., supra, does not call for a different result. In La Buy, the District Judge on his own motion referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the "clearly erroneous" test. The judge cited the problems attendant to docket congestion to satisfy Rule 53's requirement that a reference to a special master be justified by "exceptional circumstances." The Court held that on these facts reference was not permissible and affirmed the Court of Appeals' supervisory prohibition. La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it.[9] The Magistrate here acted in his capacity as magistrate, not as a special *275 master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here. Finally, our decision in Wingo v. Wedding, 418 U.S. 461 (1974), does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U.S. C. § 405 (g), precludes reference to a magistrate. It was the Court's reading of the habeas corpus statute, 28 U.S. C. § 2243, that formed the basis for the holding in Wingo v. Wedding. Affirmed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

The question presented in this case is whether the Federal Magistrates Act, 28 U.S. C. 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination—all subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew. (1) Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education, and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, and amended, 42 U.S. C. 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by 205 (g) of the Federal Magistrates Act, as added, and amended, 42 U.S. C. 405 (g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary's findings of fact so long as they are supported by substantial evidence. When respondent's complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions "to notice and conduct such factual hearings and legal argument as may be appropriate" and to "prepare a proposed written order or decision, together with proposed findings of fact and *264 conclusions of law where necessary or appropriate" for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 104-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases,[1] including actions filed under 42 U.S. C. 405 (g). *265 The parties may object to the magistrate's recommendations. After acting on any objections the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the district judge "will calendar the matter for oral argument before him if he deems it necessary or appropriate." The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed. Rule Civ. Proc. 53 (b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U.S. C. 1292 (b). The Court of Appeals affirmed. That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U.S. C. 405 (g), the limited scope of the Magistrate's role on reference, and the fact that final authority for decision remained with the District Judge. "Were the broad provisions of General Order No. 104-D before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted." The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in We granted certiorari,[2] and we affirm. *266 (2) After several years of study, the Congress in 1968 enacted the Federal Magistrates Act, 28 U.S. C. 631 et seq. The Act abolished the office of United States commissioner, and sought to "reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U. S. magistrates." S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that wherever possible the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties. Title 28 U.S. C. 636 (b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides: "Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to— *267 "(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts; "(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and "(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." The three examples 636 (b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings: "The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all. "We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U. S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts." Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings). See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th *268 Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings). Section 636 (b) was included to "permit the U. S. district courts to assign magistrates, as officers of the courts, a variety of functions presently performable only by the judges themselves." Senate Report 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by "increasing the scope of the responsibilities that can be discharged by that office, to establish a system capable of increasing the overall efficiency of the Federal judiciary" The Act grew from Congress' recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent[3] urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a "para-judge," as respondent would have it, or a "supernotary," as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners.[4] The *269 office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied district judges. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 ; Geffen, Practice Before the United States Magistrate, 47 L. A. Bar Bull. 462 ; Doyle, Implementing the Federal Magistrates Act, 39 J. Kan. Bar Assn. 25 (1970). Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128.[5] The hearings and committee *270 reports indicate that in 636 (b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is "not inconsistent with the Constitution and laws of the United States" Second, Congress limited the magistrate's role in cases referred to him under 636 (b). The Act's sponsors made it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. "[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction." House Hearings 73 (testimony of Sen. Tydings). See also (3) We need not define the full reach of a magistrate's authority under the Act, or reach the broad provisions of General Order No. 104-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record— closed because under 205 (g) of the Social Security Act, 42 U.S. C. 405 (g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary's decision?[6] The magistrate may do no more than propose *271 a recommendation, and neither 636 (b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority—and the responsibility—to make an informed, final determination, we emphasize, remains with the judge. The magistrate's limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate's review helps focus the court's attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate's report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly. We conclude that in the context of this case the preliminary-review function assigned to the magistrate, and *272 at issue here, is one of the "additional duties" that the statute contemplates magistrates are to perform.[7] (4) The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed. Rule Civ. Proc. 53 (b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." He also argues that, for similar reasons, the reference here is *273 not permissible under our decision in La[8] Section 636 (b) expressly provides that a district court may, in an appropriate case and in accordance with Fed. Rule Civ. Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53 (e) provides that, in nonjury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master. The Secretary argues that the magistrate will be a master in fact because the judge will accept automatically the recommendation made in every case. Nothing *274 in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 104-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates. Our decision in La does not call for a different result. In La Buy, the District Judge on his own motion referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the "clearly erroneous" test. The judge cited the problems attendant to docket congestion to satisfy Rule 53's requirement that a reference to a special master be justified by "exceptional circumstances." The Court held that on these facts reference was not permissible and affirmed the Court of Appeals' supervisory prohibition. La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it.[9] The Magistrate here acted in his capacity as magistrate, not as a special *275 master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here. Finally, our decision in does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U.S. C. 405 (g), precludes reference to a magistrate. It was the Court's reading of the habeas corpus statute, 28 U.S. C. 2243, that formed the basis for the holding in Affirmed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

Justice Blackmun

majority

Ohio v. Kentucky

https://www.courtlistener.com/opinion/110172/ohio-v-kentucky/

https://www.courtlistener.com/api/rest/v3/clusters/110172/

1979-021

The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the *336 northerly side of the Ohio River in the year 1792." Leave to file the bill of complaint was granted. 384 U.S. 982 (1966). In due course, Kentucky filed its answer and a Special Master was appointed. 385 U.S. 803 (1966). In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River. Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. 404 U.S. 933 (1971). The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. 406 U.S. 915 (1972). Upon the filing of Ohio's exceptions and Kentucky's reply, the matter was set for hearing. 409 U.S. 974 (1972). After argument, the Special Master's recommendation was adopted, Ohio's motion for leave to amend was denied, and the case was remanded. 410 U.S. 641 (1973). The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. 439 U.S. 1123 (1979). Kentucky lodged exceptions to the report, and Ohio filed its reply. Oral argument followed. The Special Master recommends that this Court determine that the boundary between Ohio and Kentucky "is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; that the boundary "is not the low-water mark on the northerly side of the Ohio River as it exists today"; and that such boundary, "as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties," or, in the absence of such an agreement or *337 survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16. We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its 1966 complaint. 410 U.S., at 645-648. Upon the denial of Ohio's motion, the case was left in the posture that the boundary between the two States was the river's northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark is—is it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, 1 Stat. 189, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters? It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., Nebraska v. Iowa, 143 U.S. 359 (1892), or the Mississippi River between Arkansas and Mississippi. See Mississippi v. Arkansas, 415 U.S. 289 (1974), and 415 U.S. 302 (1974). See also Iowa v. Illinois, 147 U.S. 1 (1893); Missouri v. Nebraska, 196 U.S. 23 (1904); Minnesota v. Wisconsin, 252 U.S. 273 (1920); New Jersey v. Delaware, 291 U.S. 361 (1934); Arkansas v. Tennessee, 310 U.S. 563 (1940). In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, Texas v. Louisiana, 410 U.S. 702 (1973), where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary *338 is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States ("the lands northwest of the river Ohio"), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 ("the territory. . . to the north-west of the river Ohio"), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States ("the territory . . . to the northwest of the river Ohio") accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall's familiar pronouncement with respect to the Ohio River in Handly's Lessee v. Anthony, 5 Wheat. 374, 379 (1820): "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary." The dissent concedes as much. Post, at 342. The dissent then, however, would be persuaded by whatever is "the current low-water mark on the northern shore." Post, at 343. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly's Lessee, in our view, supports Ohio's position, not the dissent's. If there could be any doubt about this, it surely was dispelled completely when the Court decided Indiana v. Kentucky, 136 U.S. 479 (1890). *339 There Mr. Justice Field, speaking for a unanimous Court, said: "[Kentucky] succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its water might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Missouri v. Kentucky, 11 Wall. 395, 401. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river. ..... "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filed." Id., at 508, 518-519. The fact that Indiana v. Kentucky concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in Indiana v. Kentucky has pertinent application and is controlling precedent here. The Court's flat pronouncements in Indiana v. Kentucky are not to be rationalized away so readily as the dissent, post, at 343-345, would have *340 them cast aside. Kentucky's present contentions, and those of the dissent, were rejected by this Court 90 years ago. We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., Utah v. United States, 420 U.S. 304 (1975), and 427 U.S. 461 (1976); New Hampshire v. Maine, 426 U.S. 363 (1976), and 434 U.S. 1 (1977). The dissent's concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might "pass completely out of Kentucky's borders," post, at 343, is of little weight. Situations where land of one State comes to be on the "wrong" side of its boundary river are not uncommon. See Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 369, n. 5 (1978); Missouri v. Nebraska, 196 U.S. 23 (1904). Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 (1972), issued by the Legislative Research Commission of the Kentucky General Assembly, states: "Kentucky's North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia." Id., at 3. See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also Perks v. McCracken, 169 Ky. 590, *341 184 S.W. 891 (1916), where the court stated that the question in the case was "where was the low water mark at the time Kentucky became a State." The exceptions of the Commonwealth of Kentucky to the report of the Special Master are overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree. MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE and MR.

The State of Ohio, in 1966, instituted this action, under the Court's original jurisdiction, against the Commonwealth of Kentucky. By its bill of complaint as initially filed, Ohio asked that the Court declare and establish that the boundary line between the two States is "the low water mark on the *336 northerly side of the Ohio River in the year 1792." Leave to file the bill of complaint was granted. In due course, Kentucky filed its answer and a Special Master was appointed. In its answer, Kentucky alleged that the boundary line is the current low-water mark on the northerly side of the Ohio River. Ohio later moved for leave to file an amended complaint that would assert, primarily, that the boundary between Ohio and Kentucky is the middle of the Ohio River, and, only alternatively, is the 1792 low-water mark on the northerly shore. That motion was referred to the Special Master. The Special Master held a hearing and in due course filed his report recommending that Ohio's petition for leave to amend be denied. Upon the filing of Ohio's exceptions and Kentucky's reply, the matter was set for hearing. After argument, the Special Master's recommendation was adopted, Ohio's motion for leave to amend was denied, and the case was remanded. The Honorable Robert Van Pelt, who by then had been appointed Special Master following the resignation of his predecessor, thereafter filed his report on the case as shaped by the original pleadings. That report was received and ordered filed. Kentucky lodged exceptions to the report, and Ohio filed its reply. Oral argument followed. The Special Master recommends that this Court determine that the boundary between Ohio and Kentucky "is the low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; that the boundary "is not the low-water mark on the northerly side of the Ohio River as it exists today"; and that such boundary, "as nearly as it can now be ascertained, be determined either a) by agreement of the parties, if reasonably possible, or b) by joint survey agreed upon by the parties," or, in the absence of such an agreement or *337 survey, after hearings conducted by the Special Master and the submission by him to this Court of proposed findings and conclusions. Report of Special Master 16. We agree with the Special Master. Much of the history concerning Virginia's cession to the United States of lands "northwest of the river Ohio" was reviewed and set forth in the Court's opinion concerning Ohio's motion for leave to amend its 1966 -648. Upon the denial of Ohio's motion, the case was left in the posture that the boundary between the two States was the river's northerly low-water mark. The litigation, thus, presently centers on where that northerly low-water mark is—is it the mark of 1792 when Kentucky was admitted to the Union, ch. IV, or is it a still more northerly mark due to the later damming of the river and the consequent rise of its waters? It should be clear that the Ohio River between Kentucky and Ohio, or, indeed, between Kentucky and Indiana, is not the usual river boundary between States. It is not like the Missouri River between Iowa and Nebraska, see, e. g., or the Mississippi River between Arkansas and Mississippi. See and See also ; ; ; New ; In these customary situations the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river have full application. A river boundary situation, however, depending upon historical factors, may well differ from that customary situation. See, for example, where the Court was concerned with the Sabine River, Lake, and Pass. And in the Kentucky-Ohio and Kentucky-Indiana boundary situation, it is indeed different. Here the boundary *338 is not the Ohio River just as a boundary river, but is the northerly edge, with originally Virginia and later Kentucky entitled to the river's expanse. This is consistently borne out by, among other documents, the 1781 Resolution of Virginia's General Assembly for the cession to the United States ("the lands northwest of the river Ohio"), 10 W. Hening, Laws of Virginia 564 (1822); the Virginia Act of 1783 ("the territory. to the north-west of the river Ohio"), 11 W. Hening, Laws of Virginia 326, 327 (1823); and the deed from Virginia to the United States ("the territory to the northwest of the river Ohio") accepted by the Continental Congress on March 1, 1784, 1 Laws of the United States 472, 474 (B. & D. ed. 1815). The Court acknowledged this through Mr. Chief Justice Marshall's familiar pronouncement with respect to the Ohio River in Handly's : "When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is its boundary." The dissent concedes as much. Post, 42. The dissent then, however, would be persuaded by whatever is "the current low-water mark on the northern shore." Post, 43. But it is far too late in the day to equate the Ohio with the Missouri, with the Mississippi, or with any other boundary river that does not have the historical antecedents possessed by the Ohio, antecedents that fix the boundary not as the river itself, but as its northerly bank. Handly's Lessee, in our view, supports Ohio's position, not the dissent's. If there could be any doubt about this, it surely was dispelled completely when the Court decided *339 There Mr. Justice Field, speaking for a unanimous Court, said: "[Kentucky] succeeded to the ancient right and possession of Virginia, and they could not be affected by any subsequent change of the Ohio River, or by the fact that the channel in which that river once ran is now filled up from a variety of causes, natural and artificial, so that parties can pass on dry land from the tract in controversy to the State of Indiana. Its water might so depart from its ancient channel as to leave on the opposite side of the river entire counties of Kentucky, and the principle upon which her jurisdiction would then be determined is precisely that which must control in this case. Her dominion and jurisdiction continue as they existed at the time she was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river. "Our conclusion is, that the waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and that the jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filed." The fact that concerned a portion of the Ohio River in its Indiana-Kentucky segment, rather than a portion in its Ohio-Kentucky segment, is of no possible legal consequence; the applicable principles are the same, and the holding in has pertinent application and is controlling precedent here. The Court's flat pronouncements in are not to be rationalized away so readily as the dissent, post, 43-345, would have *340 them cast aside. Kentucky's present contentions, and those of the dissent, were rejected by this Court 90 years ago. We are not disturbed by the fact that boundary matters between Ohio and Kentucky by the Court's holding today will turn on the 1792 low-water mark of the river. Locating that line, of course, may be difficult, and utilization of a current, and changing, mark might well be more convenient. But knowledgeable surveyors, as the Special Master's report intimates, have the ability to perform this task. Like difficulties have not dissuaded the Court from concluding that locations specified many decades ago are proper and definitive boundaries. See, e. g., and ; New and The dissent's concern about the possibility, surely extremely remote, that the comparatively stable Ohio River might "pass completely out of Kentucky's borders," post, 43, is of little weight. Situations where land of one State comes to be on the "wrong" side of its boundary river are not uncommon. See ; Owen Equipment & Erection ; Finally, it is of no little interest that Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary. Informational Bulletin No. 93 issued by the Legislative Research Commission of the Kentucky General Assembly, states: "Kentucky's North and West boundary, to-wit, the low water mark on the North shore of the Ohio River as of 1792, has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia." See also the opinion of the Attorney General of Kentucky, OAG 63-847, contained in Kentucky Attorney General Opinions 1960-1964. See also where the court stated that the question in the case was "where was the low water mark at the time Kentucky became a State." The exceptions of the Commonwealth of Kentucky to the report of the Special Master are overruled. The report is hereby adopted, and the case is remanded to the Special Master so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree. MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE and MR.

Justice Thomas

majority

Rake v. Wade

https://www.courtlistener.com/opinion/112878/rake-v-wade/

https://www.courtlistener.com/api/rest/v3/clusters/112878/

1992-090

This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage *466 pursuant to § 1322(b)(5) of the Bankruptcy Code, 11 U.S. C. § 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under §§ 506(b) and 1325(a)(5) of the Code. I Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Hannon [1] initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each case the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor. In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney's fees and interest on the arrearages. The Bankruptcy Court overruled respondent's objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the *467 cases and affirmed. The District Court held that the Chapter 13 provisions relating to the "curing of defaults"—11 U.S. C. §§ 1322(b)(2) and 1322(b)(5)—"do not alter the contract between the parties governing such matters as interest, if any, to be paid on arrearage," and that allowing interest on arrearages would be "improper," since the notes did not provide for it. App. to Pet. for Cert. A-24. The United States Court of Appeals for the Tenth Circuit reversed. Wade v. Hannon, 968 F.2d 1036 (1992). The court held that § 506(b) of the Bankruptcy Code, as interpreted in United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989), entitles an oversecured creditor to postpetition interest on arrearages and other charges paid off under a Chapter 13 plan, "even if the mortgage instruments are silent on the subject and state law would not require interest to be paid." 968 F.2d, at 1042. The Tenth Circuit relied in part on the Sixth Circuit's decision in In re Colgrove, 771 F.2d 119 (1985), which reached the same result but rested its decision on § 1325(a)(5) as well as § 506(b) of the Bankruptcy Code. Four other Courts of Appeals have held that under the "cure" and "modification" provisions of § 1322(b) a mortgagee is not entitled to interest on home mortgage arrearages.[2] We granted certiorari to resolve the conflict. 506 U.S. 972 (1992). II Petitioners' Chapter 13 plans proposed to "cure" the defaults on respondent's oversecured home mortgages[3] by establishing repayment schedules for the arrearages. Three interrelated provisions of the Bankruptcy Code determine *468 whether respondent is entitled to interest on those arrearages: §§ 506(b), 1322(b), and 1325(a)(5). Section 506(b), which applies to Chapter 13 proceedings pursuant to 11 U.S. C. § 103(a), provides that holders of oversecured claims are "allowed" postpetition interest on their claims.[4] In Ron Pair we held that the right to postpetition interest under § 506(b) is "unqualified" and exists regardless of whether the agreement giving rise to the claim provides for interest. 489 U.S., at 241. It is generally recognized that the interest allowed by § 506(b) will accrue until payment of the secured claim or until the effective date of the plan. See 3 Collier on Bankruptcy ¶ 506.05, p. 506-43, and n. 5c (15th ed. 1993) (hereinafter Collier). Respondent concedes, and his amicus the United States agrees, that because § 506(b) "has the effect of allowing a claim to the creditor, . . . the rights granted under Section 506(b) are relevant only until confirmation of the plan." Brief for United States as Amicus Curiae 11, n. 7. Accord, Tr. of Oral Arg. 24, 34. Petitioners also agree that § 506(b) applies only from the date of filing through the confirmation date. Brief for Petitioners 10, 13. Two paragraphs of § 1322(b) are relevant here: §§ 1322(b) (2) and 1322(b)(5). Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific "no modification" exception for holders of claims secured only *469 by a lien on the debtor's principal residence.[5] Section 1322(b)(5) expressly authorizes debtors to cure any defaults on a long-term debt, such as a mortgage, and to maintain payments on the debt during the life of the plan.[6] Under § 1322(b)(5), a plan may provide for the curing of any defaults and the maintenance of payments on a long-term debt "notwithstanding" § 1322(b)(2)'s prohibition against modifications of the rights of home mortgage lenders. The final provision bearing on this case—§ 1325(a)(5)— states that "with respect to each allowed secured claim provided for by the plan," one of three requirements must be satisfied before the plan may be confirmed: (1) the holder of the claim has accepted the plan, § 1325(b)(5)(A); (2) the debtor surrenders the property securing such claim to the secured creditor, § 1325(a)(5)(C); or (3) the holder of the secured claim retains the lien securing such claim, § 1325(a)(5)(B)(i), and "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim," § 1325(a)(5)(B)(ii). Thus, unless the creditor accepts the plan or the debtor surrenders the collateral to the creditor, § 1325(a)(5)(B)(ii) guarantees that property distributed under a plan on account of a claim, including deferred cash payments in satisfaction of the claim, see 5 Collier ¶ 1325.06[4][b][ii], must equal the present dollar value of such claim as of the confirmation date. Petitioners, respondent, and the United States agree that "[s]ection 1325(a)(5)(B) *470 requires all holders of allowed secured claims to be paid the present value of such claims, which implies the payment of interest." Reply Brief for Petitioners 5. Accord, Brief for Respondent 16-17; Brief for United States as Amicus Curiae 11-12, and n. 8. III Although petitioners and respondent generally agree as to the requirements of §§ 506(b) and 1325(a)(5), petitioners argue that those provisions do not apply when the debtor cures a default on a home mortgage under § 1322(b)(5). Some courts have construed the "cure" and "modification" provisions of § 1322(b) so broadly as to render §§ 506(b) and 1325(a)(5) inapplicable to the curing of defaults on home mortgages. E. g., Landmark Financial Services v. Hall, 918 F.2d 1150, 1153-1155 (CA4 1990). Petitioners contend that this is precisely what § 1322(b) requires. A Turning first to § 506(b), petitioners concede that respondent holds an oversecured claim, which includes arrearages[7] and that "`an oversecured creditor is ordinarily entitled to an allowance for postpetition interest on its secured claim under Chapter 13.'" Reply Brief for Petitioners 2 (quoting In re Laguna, 944 F.2d 542, 544 (CA9 1991) (footnote omitted), cert. denied, 503 U.S. 966 (1992)). They argue, however, that § 1322(b)(5) "operate[s] to the exclusion of the provisions of § 506(b)," Brief for Petitioners 9, and that § 506(b) thus "does not require the payment of . . . preconfirmation interest on home mortgage arrearages in Chapter 13 bankruptcy proceedings," Reply Brief for Petitioners 1. Because § 1322(b)(5) does not expressly negate § 506(b), petitioners suggest that "`[d]espite some broad language in Ron Pair, *471. . . § 506(b) is inapplicable in the context of [Chapter 13] mortgage cures.'" Brief for Petitioners 13 (quoting Hall, supra, at 1154). Petitioners' interpretation of §§ 506(b) and 1322(b)(5) does not comport with the terms of those provisions. Under § 506(b) the holder of an oversecured claim is allowed interest on his claim to the extent of the value of the collateral. Section 506(b) "directs that postpetition interest be paid on all oversecured claims," Ron Pair, 489 U. S., at 245 (emphasis added), and, as the parties acknowledge, such interest accrues as part of the allowed claim from the petition date until the confirmation or effective date of the plan. See supra, at 468. The arrearages owed on the mortgages held by respondent are plainly part of respondent's oversecured claims. Under the unqualified terms of § 506(b), therefore, respondent is entitled to preconfirmation interest on these arrearages. Where the statutory language is clear, our "`sole function . . . is to enforce it according to its terms.'" Ron Pair, supra, at 241 (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). Accord, Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992). Section 1322(b)(5), on the other hand, states that a Chapter 13 plan may "provide for the curing of any default and the maintenance of payments" on certain claims. While § 1322(b)(5) authorizes a Chapter 13 plan to provide for payments on arrearages to effectuate a cure after the effective date of the plan, nothing in that provision dictates the terms of the cure. In particular, § 1322(b)(5) provides no indication that the allowed amount of the arrearages cured under the plan may not include interest otherwise available as part of the oversecured claim under § 506(b). We generally avoid construing one provision in a statute so as to suspend or supersede another provision. To avoid "deny[ing] effect to a part of a statute," we accord "`significance and effect . . . to every word.'" Ex parte Public Nat. Bank of New York, 278 U.S. 101, 104 (1928) (quoting Market Co. v. Hoffman, 101 *472 U. S. 112, 115 (1879)). Construing §§ 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that § 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee's claim isoversecured, § 506(b) entitles the mortgagee to preconfirmation interest on such arrearages. B Petitioners make virtually the same argument with respect to postconfirmation interest under § 1325(a)(5). Petitioners concede that under § 1325(a)(5)(B)(ii) secured creditors are entitled to the "present value of [their] claims, which implies the payment of interest." Reply Brief for Petitioners 5.[8] Petitioners contend, however, that § 1325(a)(5)(B)(ii) "applies only to secured claims which have been modified in the Chapter 13 plan, and which, by reason of Section 1322(b)(2), may not include home mortgages." Ibid. Since nothing in the Code states that § 1325(a)(5) applies only to "modified" claims, petitioners turn to those Court of Appeals decisions that have held that "the legislative history indicates that § 1322(b) was intended to create a special exception to § 1325(a)(5)(B)." In re Terry, 780 F.2d 894, 896-897 (CA11 1985). Accord, In re Laguna, supra, at 544-545; Hall, 918 F. 2d, at 1154-1155; Appeal of Capps, 836 F.2d 773, 776 (CA3 1987). *473 Petitioners' interpretation of §§ 1322(b) and 1325(a)(5) is refuted by the plain language of the Code. Section 1325(a)(5) applies by its terms to "each allowed secured claim provided for by the plan." The most natural reading of the phrase to "provid[e] for by the plan" is to "make a provision for" or "stipulate to" something in a plan. See, e. g., American Heritage Dictionary 1053 (10th ed. 1981) ("provide for" defined as "to make a stipulation or condition"). Petitioners' plans clearly "provided for" respondent's home mortgage claims by establishing repayment schedules for the satisfaction of the arrearages portion of those claims. As authorized by § 1322(b)(5), the plans essentially split each of respondent's secured claims into two separate claims—the underlying debt and the arrearages. While payments of principal and interest on the underlying debts were simply "maintained" according to the terms of the mortgage documents during the pendency of petitioners' cases, each plan treated the arrearages as a distinct claim to be paid off within the life of the plan pursuant to repayment schedules established by the plans. Thus, the arrearages, which are a part of respondent's home mortgage claims, were "provided for" by the plans, and respondent is entitled to interest on them under § 1325(a)(5)(B)(ii).[9] *474 Other provisions of Chapter 13 containing the phrase "provided for by the plan" make clear that petitioners' plans provided for respondent's home mortgage claim. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (statutory terms are often "clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes [their] meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law") (citation omitted). Title 11 U.S. C. § 1328(a) (1988 ed., Supp. III), for example, utilizes the phrase "provided for by the plan" in dealing with the discharge of debts under Chapter 13.[10] As used in § 1328(a), that phrase is commonly understood to mean that a plan "makes a provision" for, "deals with," or even "refers to" a claim. See 5 Collier ¶ 1328.01, at 1328-9. In addition, § 1328(a) unmistakably contemplates that a plan "provides for" a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by § 1322(b)(5). Section 1328(a) states that "all debts provided for by the plan" are dischargeable, and then lists three exceptions.[11] One type of claim that is "provided for by the plan" yet excepted from discharge under § 1328(a) is *475 a claim "provided for under section 1322(b)(5) of this title." § 1328(a)(1). If claims that are subject to § 1322(b)(5) were not "provided for by the plan," there would be no reason to make an exception for them in § 1328(a)(1). Under § 1325(a)(5), therefore, respondent is entitled to the present value of arrearages paid off under the terms of the plans as an element of an "allowed secured claim provided for by the plan." IV We hold that respondent is entitled to preconfirmation and postconfirmation interest on arrearages paid off under petitioners' plans.[12] We therefore affirm the judgment of the Court of Appeals. So ordered.

This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage *466 pursuant to 1322(b)(5) of the Bankruptcy Code, 11 U.S. C. 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under 506(b) and 1325(a)(5) of the Code. I Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Hannon [1] initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each case the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor. In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney's fees and interest on the arrearages. The Bankruptcy Court overruled respondent's objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the *467 cases and affirmed. The District Court held that the Chapter 13 provisions relating to the "curing of defaults"—11 U.S. C. 1322(b)(2) and 1322(b)(5)—"do not alter the contract between the parties governing such matters as interest, if any, to be paid on arrearage," and that allowing interest on arrearages would be "improper," since the notes did not provide for it. App. to Pet. for Cert. A-24. The United States Court of Appeals for the Tenth Circuit reversed. The court held that 506(b) of the Bankruptcy Code, as interpreted in United entitles an oversecured creditor to postpetition interest on arrearages and other charges paid off under a Chapter 13 plan, "even if the mortgage instruments are silent on the subject and state law would not require interest to be paid." The Tenth Circuit relied in part on the Sixth Circuit's decision in In re Colgrove, which reached the same result but rested its decision on 1325(a)(5) as well as 506(b) of the Bankruptcy Code. Four other Courts of Appeals have held that under the "cure" and "modification" provisions of 1322(b) a mortgagee is not entitled to interest on home mortgage arrearages.[2] We granted certiorari to resolve the conflict. II Petitioners' Chapter 13 plans proposed to "cure" the defaults on respondent's oversecured home mortgages[3] by establishing repayment schedules for the arrearages. Three interrelated provisions of the Bankruptcy Code determine *468 whether respondent is entitled to interest on those arrearages: 506(b), 1322(b), and 1325(a)(5). Section 506(b), which applies to Chapter 13 proceedings pursuant to 11 U.S. C. 103(a), provides that holders of oversecured claims are "allowed" postpetition interest on their claims.[4] In Ron we held that the right to postpetition interest under 506(b) is "unqualified" and exists regardless of whether the agreement giving rise to the claim provides for It is generally recognized that the interest allowed by 506(b) will accrue until payment of the secured claim or until the effective date of the plan. See 3 Collier on Bankruptcy ¶ 506.05, p. 506-43, and n. 5c (15th ed. 1993) (hereinafter Collier). Respondent concedes, and his amicus the United States agrees, that because 506(b) "has the effect of allowing a claim to the creditor, the rights granted under Section 506(b) are relevant only until confirmation of the plan." Brief for United States as Amicus Curiae 11, n. 7. Accord, Tr. of Oral Arg. 24, 34. Petitioners also agree that 506(b) applies only from the date of filing through the confirmation date. Brief for Petitioners 10, 13. Two paragraphs of 1322(b) are relevant here: 1322(b) (2) and 1322(b)(5). Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific "no modification" exception for holders of claims secured only *469 by a lien on the debtor's principal residence.[5] Section 1322(b)(5) expressly authorizes debtors to cure any defaults on a long-term debt, such as a mortgage, and to maintain payments on the debt during the life of the plan.[6] Under 1322(b)(5), a plan may provide for the curing of any defaults and the maintenance of payments on a long-term debt "notwithstanding" 1322(b)(2)'s prohibition against modifications of the rights of home mortgage lenders. The final provision bearing on this case— 1325(a)(5)— states that "with respect to each allowed secured claim provided for by the plan," one of three requirements must be satisfied before the plan may be confirmed: (1) the holder of the claim has accepted the plan, 1325(b)(5)(A); (2) the debtor surrenders the property securing such claim to the secured creditor, 1325(a)(5)(C); or (3) the holder of the secured claim retains the lien securing such claim, 1325(a)(5)(B)(i), and "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim," 1325(a)(5)(B)(ii). Thus, unless the creditor accepts the plan or the debtor surrenders the collateral to the creditor, 1325(a)(5)(B)(ii) guarantees that property distributed under a plan on account of a claim, including deferred cash payments in satisfaction of the claim, see 5 Collier ¶ 1325.06[4][b][ii], must equal the present dollar value of such claim as of the confirmation date. Petitioners, respondent, and the United States agree that "[s]ection 1325(a)(5)(B) *470 requires all holders of allowed secured claims to be paid the present value of such claims, which implies the payment of " Reply Brief for Petitioners 5. Accord, Brief for Respondent 16-17; Brief for United States as Amicus Curiae 11-12, and n. 8. III Although petitioners and respondent generally agree as to the requirements of 506(b) and 1325(a)(5), petitioners argue that those provisions do not apply when the debtor cures a default on a home mortgage under 1322(b)(5). Some courts have construed the "cure" and "modification" provisions of 1322(b) so broadly as to render 506(b) and 1325(a)(5) inapplicable to the curing of defaults on home mortgages. E. g., Landmark Financial Petitioners contend that this is precisely what 1322(b) requires. A Turning first to 506(b), petitioners concede that respondent holds an oversecured claim, which includes arrearages[7] and that "`an oversecured creditor is ordinarily entitled to an allowance for postpetition interest on its secured claim under Chapter 13.'" Reply Brief for Petitioners 2 cert. denied, ). They argue, however, that 1322(b)(5) "operate[s] to the exclusion of the provisions of 506(b)," Brief for Petitioners 9, and that 506(b) thus "does not require the payment of preconfirmation interest on home mortgage arrearages in Chapter 13 bankruptcy proceedings," Reply Brief for Petitioners 1. Because 1322(b)(5) does not expressly negate 506(b), petitioners suggest that "`[d]espite some broad language in Ron *471. 506(b) is inapplicable in the context of [Chapter 13] mortgage cures.'" Brief for Petitioners 13 (quoting ). Petitioners' interpretation of 506(b) and 1322(b)(5) does not comport with the terms of those provisions. Under 506(b) the holder of an oversecured claim is allowed interest on his claim to the extent of the value of the collateral. Section 506(b) "directs that postpetition interest be paid on all oversecured claims," Ron and, as the parties acknowledge, such interest accrues as part of the allowed claim from the petition date until the confirmation or effective date of the plan. See The arrearages owed on the mortgages held by respondent are plainly part of respondent's oversecured claims. Under the unqualified terms of 506(b), therefore, respondent is entitled to preconfirmation interest on these arrearages. Where the statutory language is clear, our "`sole function is to enforce it according to its terms.'" Ron ). Accord, Connecticut Nat. Section 1322(b)(5), on the other hand, states that a Chapter 13 plan may "provide for the curing of any default and the maintenance of payments" on certain claims. While 1322(b)(5) authorizes a Chapter 13 plan to provide for payments on arrearages to effectuate a cure after the effective date of the plan, nothing in that provision dictates the terms of the cure. In particular, 1322(b)(5) provides no indication that the allowed amount of the arrearages cured under the plan may not include interest otherwise available as part of the oversecured claim under 506(b). We generally avoid construing one provision in a statute so as to suspend or supersede another provision. To avoid "deny[ing] effect to a part of a statute," we accord "`significance and effect to every word.'" Ex parte Public Nat. Bank of New York, Construing 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee's claim isoversecured, 506(b) entitles the mortgagee to preconfirmation interest on such arrearages. B Petitioners make virtually the same argument with respect to postconfirmation interest under 1325(a)(5). Petitioners concede that under 1325(a)(5)(B)(ii) secured creditors are entitled to the "present value of [their] claims, which implies the payment of " Reply Brief for Petitioners 5.[8] Petitioners contend, however, that 1325(a)(5)(B)(ii) "applies only to secured claims which have been modified in the Chapter 13 plan, and which, by reason of Section 1322(b)(2), may not include home mortgages." Since nothing in the Code states that 1325(a)(5) applies only to "modified" claims, petitioners turn to those Court of Appeals decisions that have held that "the legislative history indicates that 1322(b) was intended to create a special exception to 1325(a)(5)(B)." In re Terry, Accord, In re at -545; 918 F. 2d, -5; Appeal of Capps, *473 Petitioners' interpretation of 1322(b) and 1325(a)(5) is refuted by the plain language of the Code. Section 1325(a)(5) applies by its terms to "each allowed secured claim provided for by the plan." The most natural reading of the phrase to "provid[e] for by the plan" is to "make a provision for" or "stipulate to" something in a plan. See, e. g., American Heritage Dictionary 1053 (10th ed. 1981) ("provide for" defined as "to make a stipulation or condition"). Petitioners' plans clearly "provided for" respondent's home mortgage claims by establishing repayment schedules for the satisfaction of the arrearages portion of those claims. As authorized by 1322(b)(5), the plans essentially split each of respondent's secured claims into two separate claims—the underlying debt and the arrearages. While payments of principal and interest on the underlying debts were simply "maintained" according to the terms of the mortgage documents during the pendency of petitioners' cases, each plan treated the arrearages as a distinct claim to be paid off within the life of the plan pursuant to repayment schedules established by the plans. Thus, the arrearages, which are a part of respondent's home mortgage claims, were "provided for" by the plans, and respondent is entitled to interest on them under 1325(a)(5)(B)(ii).[9] *474 Other provisions of Chapter 13 containing the phrase "provided for by the plan" make clear that petitioners' plans provided for respondent's home mortgage claim. See United Savings Assn. of (statutory terms are often "clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes [their] meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law") (citation omitted). Title 11 U.S. C. 1328(a) (1988 ed., Supp. III), for example, utilizes the phrase "provided for by the plan" in dealing with the discharge of debts under Chapter 13.[10] As used in 1328(a), that phrase is commonly understood to mean that a plan "makes a provision" for, "deals with," or even "refers to" a claim. See 5 Collier ¶ 1328.01, at 1328-9. In addition, 1328(a) unmistakably contemplates that a plan "provides for" a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by 1322(b)(5). Section 1328(a) states that "all debts provided for by the plan" are dischargeable, and then lists three exceptions.[11] One type of claim that is "provided for by the plan" yet excepted from discharge under 1328(a) is *475 a claim "provided for under section 1322(b)(5) of this title." 1328(a)(1). If claims that are subject to 1322(b)(5) were not "provided for by the plan," there would be no reason to make an exception for them in 1328(a)(1). Under 1325(a)(5), therefore, respondent is entitled to the present value of arrearages paid off under the terms of the plans as an element of an "allowed secured claim provided for by the plan." IV We hold that respondent is entitled to preconfirmation and postconfirmation interest on arrearages paid off under petitioners' plans.[12] We therefore affirm the judgment of the Court of Appeals. So ordered.

Justice Brennan

dissenting

Harper & Row, Publishers, Inc. v. Nation Enterprises

https://www.courtlistener.com/opinion/111432/harper-row-publishers-inc-v-nation-enterprises/

https://www.courtlistener.com/api/rest/v3/clusters/111432/

1984-100

The Court holds that The Nation's quotation of 300 words from the unpublished 200,000-word manuscript of President Gerald R. Ford infringed the copyright in that manuscript, even though the quotations related to a historical event of undoubted significance — the resignation and pardon of President Richard M. Nixon. Although the Court pursues the laudable goal of protecting "the economic incentive to create and disseminate ideas," ante, at 558, this zealous defense of the copyright owner's prerogative will, I fear, stifle the broad dissemination of ideas and information copyright is intended to nurture. Protection of the copyright owner's economic interest is achieved in this case through an exceedingly narrow definition of the scope of fair use. The progress of arts and sciences and the robust public debate essential to an enlightened citizenry are ill served by this constricted reading of the fair use doctrine. See 17 U.S. C. § 107. I therefore respectfully dissent. I A This case presents two issues. First, did The Nation's use of material from the Ford manuscript in forms other than direct quotation from that manuscript infringe Harper & Row's copyright. Second, did the quotation of approximately 300 words from the manuscript infringe the copyright because this quotation did not constitute "fair use" within the meaning *580 of § 107 of the Copyright Act. 17 U.S. C. § 107. The Court finds no need to resolve the threshold copyrightability issue. The use of 300 words of quotation was, the Court finds, beyond the scope of fair use and thus a copyright infringement.[1] Because I disagree with the Court's fair use holding, it is necessary for me to decide the threshold copyrightability question. B "The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus seeks to define the rights included in copyright so as to serve the public welfare and not necessarily so as to maximize an author's control over his or her product. The challenge of copyright is to strike the "difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). The "originality" requirement now embodied in § 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests.[2] Properly interpreted *581 in the light of the legislative history, this section extends copyright protection to an author's literary form but permits free use by others of the ideas and information the author communicates. See S. Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary . . . form in which the author expressed intellectual concepts"); H. R. Rep. No. 94-1476, pp. 56-57 (1976) (same); New York Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (BRENNAN, J., concurring) ("[T]he copyright laws, of course, protect only the form of expression and not the ideas expressed"). This limitation of protection to literary form precludes any claim of copyright in facts, including historical narration. "It is not to be supposed that the framers of the Constitution, when they empowered Congress `to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (Const., Art I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it." International News Service v. Associated Press, 248 U.S. 215, 234 (1918). Accord, Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (CA2 1966), cert. denied, 385 U.S. 1009 (1967). See 1 Nimmer § 2.11[A], at 2-158.[3] *582 The "promotion of science and the useful arts" requires this limit on the scope of an author's control. Were an author able to prevent subsequent authors from using concepts, ideas, or facts contained in his or her work, the creative process would wither and scholars would be forced into unproductive replication of the research of their predecessors. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). This limitation on copyright also ensures consonance with our most important First Amendment values. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577, n. 13 (1977). Our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), leaves no room for a statutory monopoly over information and ideas. "The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatises and thus obtain a monopoly on the ideas they contained." Lee v. Runge, 404 U.S. 887, 893 (1971) (Douglas, J., dissenting from denial of certiorari). A broad dissemination of principles, ideas, and factual information is crucial to the robust public debate and informed citizenry that are "the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). And every citizen must be permitted freely to marshal ideas and facts in the advocacy of particular political choices.[4] It follows that infringement of copyright must be based on a taking of literary form, as opposed to the ideas or information contained in a copyrighted work. Deciding whether an infringing appropriation of literary from has occurred is difficult for at least two reasons. First, the distinction between *583 literary form and information or ideas is often elusive in practice. Second, infringement must be based on a substantial appropriation of literary form. This determination is equally challenging. Not surprisingly, the test for infringement has defied precise formulation.[5] In general, though, the inquiry proceeds along two axes: how closely has the second author tracked the first author's particular language and structure of presentation; and how much of the first author's language and structure has the second author appropriated.[6] In the present case the infringement analysis must be applied to a historical biography in which the author has chronicled the events of his White House tenure and commented on those events from his unique perspective. Apart from the quotations, virtually all of the material in The Nation's article indirectly recounted Mr. Ford's factual narrative of the Nixon resignation and pardon, his latter-day reflections on some events of his Presidency, and his perceptions of the personalities at the center of those events. See ante, at 570-579. No copyright can be claimed in this information qua information. Infringement would thus have to be based *584 on too close and substantial a tracking of Mr. Ford's expression of this information.[7] The Language. Much of the information The Nation conveyed was not in the form of paraphrase at all, but took the form of synopsis of lengthy discussions in the Ford manuscript.[8] In the course of this summary presentation, The *585 Nation did use occasional sentences that closely resembled language in the original Ford manuscript.[9] But these linguistic similarities are insufficient to constitute an infringement for three reasons. First, some leeway must be given to subsequent authors seeking to convey facts because those "wishing to express the ideas contained in a factual work *586 often can choose from only a narrow range of expression." Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (CA9 1984). Second, much of what The Nation paraphrased was material in which Harper & Row could claim no copyright.[10] Third, The Nation paraphrased nothing approximating the totality of a single paragraph, much less a chapter or the work as a whole. At most The Nation paraphrased disparate isolated sentences from the original. A finding of infringement based on paraphrase generally requires far more close and substantial a tracking of the original language than occurred in this case. See, e. g., Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (CA2 1977). The Structure of Presentation. The article does not mimic Mr. Ford's structure. The information The Nation presents is drawn from scattered sections of the Ford work and does not appear in the sequence in which Mr. Ford presented it.[11] Some of The Nation's discussion of the pardon does roughly track the order in which the Ford manuscript presents information about the pardon. With respect to this similarity, however, Mr. Ford has done no more than present the facts *587 chronologically and cannot claim infringement when a subsequent author similarly presents the facts of history in a chronological manner. Also, it is difficult to suggest that a 2,000-word article could bodily appropriate the structure of a 200,000-word book. Most of what Mr. Ford created, and most of the history he recounted, were simply not represented in The Nation's article.[12] When The Nation was not quoting Mr. Ford, therefore, its efforts to convey the historical information in the Ford manuscript did not so closely and substantially track Mr. Ford's language and structure as to constitute an appropriation of literary form. II The Nation is thus liable in copyright only if the quotation of 300 words infringed any of Harper & Row's exclusive rights under § 106 of the Act. Section 106 explicitly makes the grant of exclusive rights "[s]ubject to section 107 through 118." 17 U.S. C. § 106. Section 107 states: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright." The question here is whether The Nation's *588 quotation was a noninfringing fair use within the meaning of § 107. Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 449, n. 31. A court is to apply an "equitable rule of reason" analysis, id., at 448, guided by four statutorily prescribed factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; "(2) the nature of the copyright work; "(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and "(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S. C. § 107. These factors are not necessarily the exclusive determinants of the fair use inquiry and do not mechanistically resolve fair use issues; "no generally applicable definition is possible, and each case raising the question must be decided on its own facts." H. R. Rep. No. 94-1476, at 65. See also id., at 66 ("[T]he endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules in the statute"); S. Rep. No. 94-473, p. 62 (1975). The statutory factors do, however, provide substantial guidance to courts undertaking the proper fact-specific inquiry. With respect to a work of history, particularly the memoirs of a public official, the statutorily prescribed analysis cannot properly be conducted without constant attention to copyright's crucial distinction between protected literary form and unprotected information or ideas. The question must always be: Was the subsequent author's use of literary form a fair use within the meaning of § 107, in light of the purpose for the use, the nature of the copyrighted work, the amount of literary form used, and the effect of this use of literary form on the value of or market for the original? *589 Limiting the inquiry to the propriety of a subsequent author's use of the copyright owner's literary form is not easy in the case of a work of history. Protection against only substantial appropriation of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like "A Time to Heal" reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one. The value this labor produces lies primarily in the information and ideas revealed, and not in the particular collocation of words through which the information and ideas are expressed. Copyright thus does not protect that which is often of most value in a work of history, and courts must resist the tendency to reject the fair use defense on the basis of their feeling that an author of history has been deprived of the full value of his or her labor. A subsequent author's taking of information and ideas is in no sense piratical because copyright law simply does not create any property interest in information and ideas. The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian's labor may be used without compensation. This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imagination. Congress made the affirmative choice that the copyright laws should apply in this way: "Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary . . . form in which the author expressed intellectual concepts." H. R. Rep. No. 94-1476, at 56-57. This distinction is at the essence of copyright. The copyright laws serve as the "engine of free expression," ante, at 558, only when the statutory monopoly does not choke off multifarious indirect uses and consequent broad dissemination of information and ideas. To ensure the progress of arts and sciences and the integrity *590 of First Amendment values, ideas and information must not be freighted with claims of proprietary right.[13] In my judgment, the Court's fair use analysis has fallen to the temptation to find copyright violation based on a minimal use of literary form in order to provide compensation for the appropriation of information from a work of history. The failure to distinguish between information and literary form permeates every aspect of the Court's fair use analysis and leads the Court to the wrong result in this case. Application of the statutorily prescribed analysis with attention to the distinction between information and literary form leads to a straightforward finding of fair use within the meaning of § 107. The Purpose of the Use. The Nation's purpose in quoting 300 words of the Ford manuscript was, as the Court acknowledges, news reporting. See ante, at 561. The Ford work contained information about important events of recent history. Two principals, Mr. Ford and General Alexander Haig, were at the time of The Nation's publication in 1979 widely thought to be candidates for the Presidency. That The Nation objectively reported the information in the Ford manuscript without independent commentary in no way diminishes the conclusion that it was reporting news. A typical newsstory differs from an editorial precisely in that it presents newsworthy information in a straightforward and unelaborated manner. Nor does the source of the information render The Nation's article any less a news report. Often books and manuscripts, solicited and unsolicited, are *591 the subject matter of news reports. E. g., New York Times Co. v. United States, 403 U.S. 713 (1971). Frequently the manuscripts are unpublished at the time of the news report.[14] Section 107 lists news reporting as a prime example of fair use of another's expression. Like criticism and all other purposes Congress explicitly approved in § 107, news reporting informs the public; the language of § 107 makes clear that Congress saw the spread of knowledge and information as the strongest justification for a properly limited appropriation of expression. The Court of Appeals was therefore correct to conclude that the purpose of The Nation's use — dissemination of the information contained in the quotations of Mr. Ford's work — furthered the public interest. 723 F.2d 195, 207-208 (CA2 1983). In light of the explicit congressional endorsement in § 107, the purpose for which Ford's literary form was borrowed strongly favors a finding of fair use. The Court concedes the validity of the news reporting purpose[15] but then quickly offsets it against three purportedly countervailing considerations. First, the Court asserts that because The Nation publishes for profit, its publication of *592 the Ford quotes is a presumptively unfair commercial use. Second, the Court claims that The Nation's stated desire to create a "news event" signaled an illegitimate purpose of supplanting the copyright owner's right of first publication. Ante, at 562-563. Third, The Nation acted in bad faith, the Court claims, because its editor "knowingly exploited a purloined manuscript." Ante, at 563. The Court's reliance on the commercial nature of The Nation's use as "a separate factor that tends to weigh against a finding of fair use," ante, at 562, is inappropriate in the present context. Many uses § 107 lists as paradigmatic examples of fair use, including criticism, comment, and news reporting, are generally conducted for profit in this country, a fact of which Congress was obviously aware when it enacted § 107. To negate any argument favoring fair use based on news reporting or criticism because that reporting or criticism was published for profit is to render meaningless the congressional imprimatur placed on such uses.[16] Nor should The Nation's intent to create a "news event" weigh against a finding of fair use. Such a rule, like the *593 Court's automatic presumption against news reporting for profit, would undermine the congressional validation of the news reporting purpose. A news business earns its reputation, and therefore its readership, through consistent prompt publication of news — and often through "scooping" rivals. More importantly, the Court's failure to maintain the distinction between information and literary form colors the analysis of this point. Because Harper & Row had no legitimate copyright interest in the information and ideas in the Ford manuscript, The Nation had every right to seek to be the first to disclose these facts and ideas to the public. The record suggests only that The Nation sought to be the first to reveal the information in the Ford manuscript. The Nation's stated purpose of scooping the competition should under those circumstances have no negative bearing on the claim of fair use. Indeed the Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news. The Court's reliance on The Nation's putative bad faith is equally unwarranted. No court has found that The Nation possessed the Ford manuscript illegally or in violation of any common-law interest of Harper & Row; all common-law causes of action have been abandoned or dismissed in this case. 723 F.2d, at 199-201. Even if the manuscript had been "purloined" by someone, nothing in this record imputes culpability to The Nation.[17] On the basis of the record in this case, the most that can be said is that The Nation made use of the contents of the manuscript knowing the copyright owner would not sanction the use. *594 At several points the Court brands this conduct thievery. See, e. g., ante, at 556, 563. This judgment is unsupportable, and is perhaps influenced by the Court's unspoken tendency in this case to find infringement based on the taking of information and ideas. With respect to the appropriation of information and ideas other than the quoted words, The Nation's use was perfectly legitimate despite the copyright owner's objection because no copyright can be claimed in ideas or information. Whether the quotation of 300 words was an infringement or a fair use within the meaning of § 107 is a close question that has produced sharp division in both this Court and the Court of Appeals. If the Copyright Act were held not to prohibit the use, then the copyright owner would have had no basis in law for objecting. The Nation's awareness of an objection that has a significant chance of being adjudged unfounded cannot amount to bad faith. Imputing bad faith on the basis of no more than knowledge of such an objection, the Court impermissibly prejudices the inquiry and impedes arrival at the proper conclusion that the "purpose" factor of the statutorily prescribed analysis strongly favors a finding of fair use in this case. The Nature of the Copyrighted Work. In Sony Corp. of America v. Universal City Studios, Inc., we stated that "not. . . all copyrights are fungible" and that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture." 464 U.S., at 455, n. 40. These statements reflect the principle, suggested in § 107(2) of the Act, that the scope of fair use is generally broader when the source of borrowed expression is a factual or historical work. See 3 Nimmer § 13.05[A][2], at 13-73 — 13-74. "[I]nformational works," like the Ford manuscript, "that readily lend themselves to productive use by others, are less protected." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 496-497 (BLACKMUN, J., dissenting). Thus the second statutory factor also favors a finding of fair use in this case. *595 The Court acknowledges that "[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," ante, at 563, and that "[s]ome of the briefer quotations from the memoir are arguably necessary to convey the facts," ibid. But the Court discounts the force of this consideration, primarily on the ground that "[t]he fact that a work is unpublished is a crucial element of its `nature.' " Ante, at 564.[18] At this point the Court introduces into analysis of this case a categorical presumption against prepublication fair use. See ante, at 555 ("Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use"). This categorical presumption is unwarranted on its own terms and unfaithful to congressional intent.[19] Whether a *596 particular prepublication use will impair any interest the Court identifies as encompassed within the right of first publication, see ante, at 552-555,[20] will depend on the nature of the copyrighted work, the timing of prepublication use, the amount of expression used, and the medium in which the second author communicates. Also, certain uses might be tolerable for some purposes but not for others. See Sony Corp. of America v. Universal City Studios, Inc., supra, at 490, n. 40. The Court is ambiguous as to whether it relies on the force of the presumption against prepublication fair use or an analysis of the purpose and effect of this particular use. Compare ante, at 552-555, with ante, at 564. To the extent the Court relies on the presumption, it presumes intolerable *597 injury — in particular the usurpation of the economic interest[21] — based on no more than a quick litmus test for prepublication timing. Because "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests," we held last Term that the fair use inquiry could never be resolved on the basis of such a "two dimensional" categorical approach. See Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 455, n. 40 (rejecting categorical requirement of "productive use"). To the extent the Court purports to evaluate the facts of this case, its analysis relies on sheer speculation. The quotation of 300 words from the manuscript infringed no privacy interest of Mr. Ford. This author intended the words in the manuscript to be a public statement about his Presidency. Lacking, therefore, is the "deliberate choice on the part of the copyright owner" to keep expression confidential, a consideration that the Senate Report — in the passage on which the Court places great reliance, see ante, at 553 — recognized as the impetus behind narrowing fair use for unpublished works. See S. Rep. No. 94-473, at 64. See also 3 Nimmer § 13.05[A], at 13-73 ("[T]he scope of the fair use doctrine is considerably narrower with respect to unpublished works which are held confidential by their copyright owners") (emphasis added). What the Court depicts as the copyright owner's "confidentiality" interest, see ante, at 564, is not a privacy interest at all. Rather, it is no more than an economic interest in capturing the full value of initial release of information to *598 the public, and is properly analyzed as such. See infra, at 602-603. Lacking too is any suggestion that The Nation's use interfered with the copyright owner's interest in editorial control of the manuscript. The Nation made use of the Ford quotes on the eve of official publication. Thus the only interest The Nation's prepublication use might have infringed is the copyright owner's interest in capturing the full economic value of initial release. By considering this interest as a component of the "nature" of the copyrighted work, the Court's analysis deflates The Nation's claim that the informational nature of the work supports fair use without any inquiry into the actual or potential economic harm of The Nation's particular prepublication use. For this reason, the question of economic harm is properly considered under the fourth statutory factor — the effect on the value of or market for the copyrighted work, 17 U.S. C. § 107(4) — and not as a presumed element of the "nature" of the copyright. The Amount and Substantiality of the Portion Used. More difficult questions arise with respect to judgments about the importance to this case of the amount and substantiality of the quotations used. The Nation quoted only approximately 300 words from a manuscript of more than 200,000 words, and the quotes are drawn from isolated passages in disparate sections of the work. The judgment that this taking was quantitatively "infinitesimal," 723 F.2d, at 209, does not dispose of the inquiry, however. An evaluation of substantiality in qualitative terms is also required. Much of the quoted material was Mr. Ford's matter-of-fact representation of the words of others in conversations with him; such quotations are "arguably necessary adequately to convey the facts," ante, at 563, and are not rich in expressive content. Beyond these quotations a portion of the quoted material was drawn from the most poignant expression in the Ford manuscript; in particular The Nation made use of six examples of Mr. Ford's expression of his reflections on *599 events or perceptions about President Nixon.[22] The fair use inquiry turns on the propriety of the use of these quotations with admittedly strong expressive content. The Court holds that "in view of the expressive value of the excerpts and their key role in the infringing work," this third statutory factor disfavors a finding of fair use.[23] To support *600 this conclusion, the Court purports to rely on the District Court factual findings that The Nation had taken "the heart of the book." 557 F. Supp. 1062, 1072 (SDNY 1983). This reliance is misplaced, and would appear to be another result of the Court's failure to distinguish between information and literary form. When the District Court made this finding, it was evaluating not the quoted words at issue here but the "totality" of the information and reflective commentary in the Ford work. Ibid. The vast majority of what the District Court considered the heart of the Ford work, therefore, consisted of ideas and information The Nation was free to use. It may well be that, as a qualitative matter, most of the value of the manuscript did lie in the information and ideas The Nation used. But appropriation of the "heart" of the manuscript in this sense is irrelevant to copyright analysis because copyright does not preclude a second author's use of information and ideas. Perhaps tacitly recognizing that reliance on the District Court finding is unjustifiable, the Court goes on to evaluate independently the quality of the expression appearing in The Nation's article. The Court states that "[t]he portions actually quoted were selected by Mr. Navasky as among the most powerful passages." Ante, at 565. On the basis of no more than this observation, and perhaps also inference from the fact that the quotes were important to The Nation's article,[24] the Court adheres to its conclusion that The Nation appropriated the heart of the Ford manuscript. *601 At least with respect to the six particular quotes of Mr. Ford's observations and reflections about President Nixon, I agree with the Court's conclusion that The Nation appropriated some literary form of substantial quality. I do not agree, however, that the substantiality of the expression taken was clearly excessive or inappropriate to The Nation's news reporting purpose. Had these quotations been used in the context of a critical book review of the Ford work, there is little question that such a use would be fair use within the meaning of § 107 of the Act. The amount and substantiality of the use — in both quantitative and qualitative terms — would have certainly been appropriate to the purpose of such a use. It is difficult to see how the use of these quoted words in a news report is less appropriate. The Court acknowledges as much: "[E]ven substantial quotations might qualify as a fair use in a review of a published work or a news account of a speech that had been delivered to the public." See ante, at 564. With respect to the motivation for the pardon and the insights into the psyche of the fallen President, for example, Mr. Ford's reflections and perceptions are so laden with emotion and deeply personal value judgments that full understanding is immeasurably enhanced by reproducing a limited portion of Mr. Ford's own words. The importance of the work, after all, lies not only in revelation of previously unknown fact but also in revelation of the thoughts, ideas, motivations, and fears of two Presidents at a critical moment in our national history. Thus, while the question is not easily resolved, it is difficult to say that the use of the six quotations was gratuitous in relation to the news reporting purpose. Conceding that even substantial quotation is appropriate in a news report of a published work, the Court would seem to agree that this quotation was not clearly inappropriate in relation to The Nation's news reporting purpose. For the Court, the determinative factor is again that the substantiality of the use was inappropriate in relation to the prepublication *602 timing of that use. That is really an objection to the effect of this use on the market for the copyrighted work, and is properly evaluated as such. The Effect on the Market. The Court correctly notes that the effect on the market "is undoubtedly the single most important element of fair use." Ante, at 566, citing 3 Nimmer § 13.05[A], at 13-76, and the Court properly focuses on whether The Nation's use adversely affected Harper & Row's serialization potential and not merely the market for sales of the Ford work itself. Ante, at 566-567. Unfortunately, the Court's failure to distinguish between the use of information and the appropriation of literary form badly skews its analysis of this factor. For purposes of fair use analysis, the Court holds, it is sufficient that the entire article containing the quotes eroded the serialization market potential of Mr. Ford's work. Ante, at 567. On the basis of Time's cancellation of its serialization agreement, the Court finds that "[r]arely will a case of copyright infringement present such clear-cut evidence of actual damage." Ibid. In essence, the Court finds that by using some quotes in a story about the Nixon pardon, The Nation "competed for a share of the market of prepublication excerpts" ante, at 568, because Time planned to excerpt from the chapters about the pardon. The Nation's publication indisputably precipitated Time's eventual cancellation. But that does not mean that The Nation's use of the 300 quoted words caused this injury to Harper & Row. Wholly apart from these quoted words, The Nation published significant information and ideas from the Ford manuscript. If it was this publication of information, and not the publication of the few quotations, that caused Time to abrogate its serialization agreement, then whatever the negative effect on the serialization market, that effect was the product of wholly legitimate activity. The Court of Appeals specifically held that "the evidence does not support a finding that it was the very limited use of expression per se which led to Time's decision not to print excerpts." *603 723 F. 2d, at 208. I fully agree with this holding. If The Nation competed with Time, the competition was not for a share of the market in excerpts of literary form but for a share of the market in the new information in the Ford work. That the information, and not the literary form, represents most of the real value of the work in this case is perhaps best revealed by the following provision in the contract between Harper & Row and Mr. Ford: "Author acknowledges that the value of the rights granted to publisher hereunder would be substantially diminished by Author's public discussion of the unique information not previously disclosed about Author's career and personal life which will be included in the Work, and Author agrees that Author will endeavor not to disseminate any such information in any media, including television, radio and newspaper and magazine interviews prior to the first publication of the work hereunder." App. 484. The contract thus makes clear that Harper & Row sought to benefit substantially from monopolizing the initial revelation of information known only to Ford. Because The Nation was the first to convey the information in this case, it did perhaps take from Harper & Row some of the value that publisher sought to garner for itself through the contractual arrangement with Ford and the license to Time. Harper & Row had every right to seek to monopolize revenue from that potential market through contractual arrangements but it has no right to set up copyright as a shield from competition in that market because copyright does not protect information. The Nation had every right to seek to be the first to publish that information.[25] *604 Balancing the Interests. Once the distinction between information and literary form is made clear, the statutorily prescribed process of weighing the four statutory fair use factors discussed above leads naturally to a conclusion that The Nation's limited use of literary form was not an infringement. Both the purpose of the use and the nature of the copyrighted work strongly favor the fair use defense here. The Nation appropriated Mr. Ford's expression for a purpose Congress expressly authorized in § 107 and borrowed from a work whose nature justifies some appropriation to facilitate the spread of information. The factor that is perhaps least favorable to the claim of fair use is the amount and substantiality of the expression used. Without question, a portion of the expression appropriated was among the most poignant in the Ford manuscript. But it is difficult to conclude that this taking was excessive in relation to the news reporting purpose. In any event, because the appropriation of literary form — as opposed to the use of information — was not shown to injure Harper & Row's economic interest, any uncertainty with respect to the propriety of the amount of expression borrowed should be resolved in favor of a finding of fair use.[26] In light of the circumscribed scope of the quotation in The Nation's article and the undoubted validity of the purpose *605 motivating that quotation, I must conclude that the Court has simply adopted an exceedingly narrow view of fair use in order to impose liability for what was in essence a taking of unprotected information. III The Court's exceedingly narrow approach to fair use permits Harper & Row to monopolize information. This holding "effect[s] an important extension of property rights and a corresponding curtailment in the free use of knowledge and of ideas." International News Service v. Associated Press, 248 U. S., at 263 (Brandeis, J., dissenting). The Court has perhaps advanced the ability of the historian — or at least the public official who has recently left office — to capture the full economic value of information in his or her possession. But the Court does so only by risking the robust debate of public issues that is the "essence of self-government." Garrison v. Louisiana, 379 U. S., at 74-75. The Nation was providing the grist for that robust debate. The Court imposes liability upon The Nation for no other reason than that The Nation succeeded in being the first to provide certain information to the public. I dissent.

The Court holds that The Nation's quotation of 300 words from the unpublished 200,000-word manuscript of President Gerald R. Ford infringed the copyright in that manuscript, even though the quotations related to a historical event of undoubted significance — the resignation and pardon of President Richard M. Nixo Although the Court pursues the laudable goal of protecting "the economic incentive to create and disseminate ideas," ante, at 558, this zealous defense of the copyright owner's prerogative will, I fear, stifle the broad dissemination of ideas and information copyright is intended to nurture. Protection of the copyright owner's economic interest is achieved in this case through an exceedingly narrow definition of the scope of fair use. The progress of arts and sciences and the robust public debate essential to an enlightened citizenry are ill served by this constricted reading of the fair use doctrine. See 17 U.S. C. 107. I therefore respectfully dissent. I A This case presents two issues. First, did The Nation's use of material from the Ford manuscript in forms other than direct quotation from that manuscript infringe Harper & Row's copyright. Second, did the quotation of approximately 300 words from the manuscript infringe the copyright because this quotation did not constitute "fair use" within the meaning *580 of 107 of the Copyright Act. 17 U.S. C. 107. The Court finds no need to resolve the threshold copyrightability issue. The use of 300 words of quotation was, the Court finds, beyond the scope of fair use and thus a copyright infringement.[1] Because I disagree with the Court's fair use holding, it is necessary for me to decide the threshold copyrightability questio B "The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). Congress thus seeks to define the rights included in copyright so as to serve the public welfare and not necessarily so as to maximize an author's control over his or her product. The challenge of copyright is to strike the "difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand." Sony Corp. of The "originality" requirement now embodied in 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests.[2] Properly interpreted *581 in the light of the legislative history, this section extends copyright protection to an author's literary form but permits free use by others of the ideas and information the author communicates. See S. Rep. No. 93-983, pp. 107-108 (1974) ("Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary form in which the author expressed intellectual concepts"); H. R. Rep. No. 94-1476, pp. 56-57 (1976) (same); New York Times ("[T]he copyright laws, of course, protect only the form of expression and not the ideas expressed"). This limitation of protection to literary form precludes any claim of copyright in facts, including historical narratio "It is not to be supposed that the framers of the Constitution, when they empowered Congress `to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries' (Const., Art I, 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it." International News Accord, Rosemont Enterprises, cert. denied, See 1 Nimmer 2.11[A], at 2-158.[3] *582 The "promotion of science and the useful arts" requires this limit on the scope of an author's control. Were an author able to prevent subsequent authors from using concepts, ideas, or facts contained in his or her work, the creative process would wither and scholars would be forced into unproductive replication of the research of their predecessors. See This limitation on copyright also ensures consonance with our most important First Amendment values. Cf. 577, 13 Our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times leaves no room for a statutory monopoly over information and ideas. "The arena of public debate would be quiet, indeed, if a politician could copyright his speeches or a philosopher his treatises and thus obtain a monopoly on the ideas they contained." A broad dissemination of principles, ideas, and factual information is crucial to the robust public debate and informed citizenry that are "the essence of self-government." And every citizen must be permitted freely to marshal ideas and facts in the advocacy of particular political choices.[4] It follows that infringement of copyright must be based on a taking of literary form, as opposed to the ideas or information contained in a copyrighted work. Deciding whether an infringing appropriation of literary from has occurred is difficult for at least two reasons. First, the distinction between *583 literary form and information or ideas is often elusive in practice. Second, infringement must be based on a substantial appropriation of literary form. This determination is equally challenging. Not surprisingly, the test for infringement has defied precise formulatio[5] In general, though, the inquiry proceeds along two axes: how closely has the second author tracked the first author's particular language and structure of presentation; and how much of the first author's language and structure has the second author appropriated.[6] In the present case the infringement analysis must be applied to a historical biography in which the author has chronicled the events of his White House tenure and commented on those events from his unique perspective. Apart from the quotations, virtually all of the material in The Nation's article indirectly recounted Mr. Ford's factual narrative of the Nixon resignation and pardon, his latter-day reflections on some events of his Presidency, and his perceptions of the personalities at the center of those events. See ante, at 570-579. No copyright can be claimed in this information qua informatio Infringement would thus have to be based *584 on too close and substantial a tracking of Mr. Ford's expression of this informatio[7] The Language. Much of the information The Nation conveyed was not in the form of paraphrase at all, but took the form of synopsis of lengthy discussions in the Ford manuscript.[8] In the course of this summary presentation, The *585 Nation did use occasional sentences that closely resembled language in the original Ford manuscript.[9] But these linguistic similarities are insufficient to constitute an infringement for three reasons. First, some leeway must be given to subsequent authors seeking to convey facts because those "wishing to express the ideas contained in a factual work *586 often can choose from only a narrow range of expressio" Second, much of what The Nation paraphrased was material in which Harper & Row could claim no copyright.[10] Third, The Nation paraphrased nothing approximating the totality of a single paragraph, much less a chapter or the work as a whole. At most The Nation paraphrased disparate isolated sentences from the original. A finding of infringement based on paraphrase generally requires far more close and substantial a tracking of the original language than occurred in this See, e. g., Wainwright Securities The Structure of Presentatio The article does not mimic Mr. Ford's structure. The information The Nation presents is drawn from scattered sections of the Ford work and does not appear in the sequence in which Mr. Ford presented it.[11] Some of The Nation's discussion of the pardon does roughly track the order in which the Ford manuscript presents information about the pardo With respect to this similarity, however, Mr. Ford has done no more than present the facts *587 chronologically and cannot claim infringement when a subsequent author similarly presents the facts of history in a chronological manner. Also, it is difficult to suggest that a 2,000-word article could bodily appropriate the structure of a 200,000-word book. Most of what Mr. Ford created, and most of the history he recounted, were simply not represented in The Nation's article.[12] When The Nation was not quoting Mr. Ford, therefore, its efforts to convey the historical information in the Ford manuscript did not so closely and substantially track Mr. Ford's language and structure as to constitute an appropriation of literary form. II The Nation is thus liable in copyright only if the quotation of 300 words infringed any of Harper & Row's exclusive rights under 106 of the Act. Section 106 explicitly makes the grant of exclusive rights "[s]ubject to section 107 through 118." 17 U.S. C. 106. Section 107 states: "Notwithstanding the provisions of section 106, the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright." The question here is whether The Nation's *588 quotation was a noninfringing fair use within the meaning of 107. Congress "eschewed a rigid, bright-line approach to fair use." Sony Corp. of 31. A court is to apply an "equitable rule of reason" analysis, guided by four statutorily prescribed factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; "(2) the nature of the copyright work; "(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and "(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S. C. 107. These factors are not necessarily the exclusive determinants of the fair use inquiry and do not mechanistically resolve fair use issues; "no generally applicable definition is possible, and each case raising the question must be decided on its own facts." H. R. Rep. No. 94-1476, at 65. See also ; S. Rep. No. 94-473, p. 62 (1975). The statutory factors do, however, provide substantial guidance to courts undertaking the proper fact-specific inquiry. With respect to a work of history, particularly the memoirs of a public official, the statutorily prescribed analysis cannot properly be conducted without constant attention to copyright's crucial distinction between protected literary form and unprotected information or ideas. The question must always be: Was the subsequent author's use of literary form a fair use within the meaning of 107, in light of the purpose for the use, the nature of the copyrighted work, the amount of literary form used, and the effect of this use of literary form on the value of or market for the original? *589 Limiting the inquiry to the propriety of a subsequent author's use of the copyright owner's literary form is not easy in the case of a work of history. Protection against only substantial appropriation of literary form does not ensure historians a return commensurate with the full value of their labors. The literary form contained in works like "A Time to Heal" reflects only a part of the labor that goes into the book. It is the labor of collecting, sifting, organizing, and reflecting that predominates in the creation of works of history such as this one. The value this labor produces lies primarily in the information and ideas revealed, and not in the particular collocation of words through which the information and ideas are expressed. Copyright thus does not protect that which is often of most value in a work of history, and courts must resist the tendency to reject the fair use defense on the basis of their feeling that an author of history has been deprived of the full value of his or her labor. A subsequent author's taking of information and ideas is in no sense piratical because copyright law simply does not create any property interest in information and ideas. The urge to compensate for subsequent use of information and ideas is perhaps understandable. An inequity seems to lurk in the idea that much of the fruit of the historian's labor may be used without compensatio This, however, is not some unforeseen byproduct of a statutory scheme intended primarily to ensure a return for works of the imaginatio Congress made the affirmative choice that the copyright laws should apply in this way: "Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary form in which the author expressed intellectual concepts." H. R. Rep. No. 94-1476, at 56-57. This distinction is at the essence of copyright. The copyright laws serve as the "engine of free expression," ante, at 558, only when the statutory monopoly does not choke off multifarious indirect uses and consequent broad dissemination of information and ideas. To ensure the progress of arts and sciences and the integrity *590 of First Amendment values, ideas and information must not be freighted with claims of proprietary right.[13] In my judgment, the Court's fair use analysis has fallen to the temptation to find copyright violation based on a minimal use of literary form in order to provide compensation for the appropriation of information from a work of history. The failure to distinguish between information and literary form permeates every aspect of the Court's fair use analysis and leads the Court to the wrong result in this Application of the statutorily prescribed analysis with attention to the distinction between information and literary form leads to a straightforward finding of fair use within the meaning of 107. The Purpose of the Use. The Nation's purpose in quoting 300 words of the Ford manuscript was, as the Court acknowledges, news reporting. See ante, at 561. The Ford work contained information about important events of recent history. Two principals, Mr. Ford and General Alexander Haig, were at the time of The Nation's publication in 1 widely thought to be candidates for the Presidency. That The Nation objectively reported the information in the Ford manuscript without independent commentary in no way diminishes the conclusion that it was reporting news. A typical newsstory differs from an editorial precisely in that it presents newsworthy information in a straightforward and unelaborated manner. Nor does the source of the information render The Nation's article any less a news report. Often books and manuscripts, solicited and unsolicited, are *591 the subject matter of news reports. E. g., New York Times Frequently the manuscripts are unpublished at the time of the news report.[14] Section 107 lists news reporting as a prime example of fair use of another's expressio Like criticism and all other purposes Congress explicitly approved in 107, news reporting informs the public; the language of 107 makes clear that Congress saw the spread of knowledge and information as the strongest justification for a properly limited appropriation of expressio The Court of Appeals was therefore correct to conclude that the purpose of The Nation's use — dissemination of the information contained in the quotations of Mr. Ford's work — furthered the public interest. In light of the explicit congressional endorsement in 107, the purpose for which Ford's literary form was borrowed strongly favors a finding of fair use. The Court concedes the validity of the news reporting purpose[15] but then quickly offsets it against three purportedly countervailing considerations. First, the Court asserts that because The Nation publishes for profit, its publication of *592 the Ford quotes is a presumptively unfair commercial use. Second, the Court claims that The Nation's stated desire to create a "news event" signaled an illegitimate purpose of supplanting the copyright owner's right of first publicatio Ante, at 562-563. Third, The Nation acted in bad faith, the Court claims, because its editor "knowingly exploited a purloined manuscript." Ante, at 563. The Court's reliance on the commercial nature of The Nation's use as "a separate factor that tends to weigh against a finding of fair use," ante, at 562, is inappropriate in the present context. Many uses 107 lists as paradigmatic examples of fair use, including criticism, comment, and news reporting, are generally conducted for profit in this country, a fact of which Congress was obviously aware when it enacted 107. To negate any argument favoring fair use based on news reporting or criticism because that reporting or criticism was published for profit is to render meaningless the congressional imprimatur placed on such uses.[16] Nor should The Nation's intent to create a "news event" weigh against a finding of fair use. Such a rule, like the *593 Court's automatic presumption against news reporting for profit, would undermine the congressional validation of the news reporting purpose. A news business earns its reputation, and therefore its readership, through consistent prompt publication of news — and often through "scooping" rivals. More importantly, the Court's failure to maintain the distinction between information and literary form colors the analysis of this point. Because Harper & Row had no legitimate copyright interest in the information and ideas in the Ford manuscript, The Nation had every right to seek to be the first to disclose these facts and ideas to the public. The record suggests only that The Nation sought to be the first to reveal the information in the Ford manuscript. The Nation's stated purpose of scooping the competition should under those circumstances have no negative bearing on the claim of fair use. Indeed the Court's reliance on this factor would seem to amount to little more than distaste for the standard journalistic practice of seeking to be the first to publish news. The Court's reliance on The Nation's putative bad faith is equally unwarranted. No court has found that The Nation possessed the Ford manuscript illegally or in violation of any common-law interest of Harper & Row; all common-law causes of action have been abandoned or dismissed in this -201. Even if the manuscript had been "purloined" by someone, nothing in this record imputes culpability to The Natio[17] On the basis of the record in this case, the most that can be said is that The Nation made use of the contents of the manuscript knowing the copyright owner would not sanction the use. *594 At several points the Court brands this conduct thievery. See, e. g., ante, at 556, 563. This judgment is unsupportable, and is perhaps influenced by the Court's unspoken tendency in this case to find infringement based on the taking of information and ideas. With respect to the appropriation of information and ideas other than the quoted words, The Nation's use was perfectly legitimate despite the copyright owner's objection because no copyright can be claimed in ideas or informatio Whether the quotation of 300 words was an infringement or a fair use within the meaning of 107 is a close question that has produced sharp division in both this Court and the Court of Appeals. If the Copyright Act were held not to prohibit the use, then the copyright owner would have had no basis in law for objecting. The Nation's awareness of an objection that has a significant chance of being adjudged unfounded cannot amount to bad faith. Imputing bad faith on the basis of no more than knowledge of such an objection, the Court impermissibly prejudices the inquiry and impedes arrival at the proper conclusion that the "purpose" factor of the statutorily prescribed analysis strongly favors a finding of fair use in this The Nature of the Copyrighted Work. In Sony Corp. of we stated that "not. all copyrights are fungible" and that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture." 40. These statements reflect the principle, suggested in 107(2) of the Act, that the scope of fair use is generally broader when the source of borrowed expression is a factual or historical work. See 3 Nimmer 13.05[A][2], at 13-73 — 13-74. "[I]nformational works," like the Ford manuscript, "that readily lend themselves to productive use by others, are less protected." Sony Corp. of -497 Thus the second statutory factor also favors a finding of fair use in this *595 The Court acknowledges that "[t]he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," ante, at 563, and that "[s]ome of the briefer quotations from the memoir are arguably necessary to convey the facts," But the Court discounts the force of this consideration, primarily on the ground that "[t]he fact that a work is unpublished is a crucial element of its `nature.' " Ante, at 564.[18] At this point the Court introduces into analysis of this case a categorical presumption against prepublication fair use. See ante, at 555 ("Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use"). This categorical presumption is unwarranted on its own terms and unfaithful to congressional intent.[19] Whether a *596 particular prepublication use will impair any interest the Court identifies as encompassed within the right of first publication, see ante, at 552-555,[20] will depend on the nature of the copyrighted work, the timing of prepublication use, the amount of expression used, and the medium in which the second author communicates. Also, certain uses might be tolerable for some purposes but not for others. See Sony Corp. of at 490, 40. The Court is ambiguous as to whether it relies on the force of the presumption against prepublication fair use or an analysis of the purpose and effect of this particular use. Compare ante, at 552-555, with ante, at 564. To the extent the Court relies on the presumption, it presumes intolerable *597 injury — in particular the usurpation of the economic interest[21] — based on no more than a quick litmus test for prepublication timing. Because "Congress has plainly instructed us that fair use analysis calls for a sensitive balancing of interests," we held last Term that the fair use inquiry could never be resolved on the basis of such a "two dimensional" categorical approach. See Sony Corp. of 40 To the extent the Court purports to evaluate the facts of this case, its analysis relies on sheer speculatio The quotation of 300 words from the manuscript infringed no privacy interest of Mr. Ford. This author intended the words in the manuscript to be a public statement about his Presidency. Lacking, therefore, is the "deliberate choice on the part of the copyright owner" to keep expression confidential, a consideration that the Senate Report — in the passage on which the Court places great reliance, see ante, at 553 — recognized as the impetus behind narrowing fair use for unpublished works. See S. Rep. No. 94-473, at 64. See also 3 Nimmer 13.05[A], at 13-73 ("[T]he scope of the fair use doctrine is considerably narrower with respect to unpublished works which are held confidential by their copyright owners") (emphasis added). What the Court depicts as the copyright owner's "confidentiality" interest, see ante, at 564, is not a privacy interest at all. Rather, it is no more than an economic interest in capturing the full value of initial release of information to *598 the public, and is properly analyzed as such. See infra, at 602-603. Lacking too is any suggestion that The Nation's use interfered with the copyright owner's interest in editorial control of the manuscript. The Nation made use of the Ford quotes on the eve of official publicatio Thus the only interest The Nation's prepublication use might have infringed is the copyright owner's interest in capturing the full economic value of initial release. By considering this interest as a component of the "nature" of the copyrighted work, the Court's analysis deflates The Nation's claim that the informational nature of the work supports fair use without any inquiry into the actual or potential economic harm of The Nation's particular prepublication use. For this reason, the question of economic harm is properly considered under the fourth statutory factor — the effect on the value of or market for the copyrighted work, 17 U.S. C. 107(4) — and not as a presumed element of the "nature" of the copyright. The Amount and Substantiality of the Portion Used. More difficult questions arise with respect to judgments about the importance to this case of the amount and substantiality of the quotations used. The Nation quoted only approximately 300 words from a manuscript of more than 200,000 words, and the quotes are drawn from isolated passages in disparate sections of the work. The judgment that this taking was quantitatively "infinitesimal," does not dispose of the inquiry, however. An evaluation of substantiality in qualitative terms is also required. Much of the quoted material was Mr. Ford's matter-of-fact representation of the words of others in conversations with him; such quotations are "arguably necessary adequately to convey the facts," ante, at 563, and are not rich in expressive content. Beyond these quotations a portion of the quoted material was drawn from the most poignant expression in the Ford manuscript; in particular The Nation made use of six examples of Mr. Ford's expression of his reflections on *599 events or perceptions about President Nixo[22] The fair use inquiry turns on the propriety of the use of these quotations with admittedly strong expressive content. The Court holds that "in view of the expressive value of the excerpts and their key role in the infringing work," this third statutory factor disfavors a finding of fair use.[23] To support *600 this conclusion, the Court purports to rely on the District Court factual findings that The Nation had taken "the heart of the book." This reliance is misplaced, and would appear to be another result of the Court's failure to distinguish between information and literary form. When the District Court made this finding, it was evaluating not the quoted words at issue here but the "totality" of the information and reflective commentary in the Ford work. The vast majority of what the District Court considered the heart of the Ford work, therefore, consisted of ideas and information The Nation was free to use. It may well be that, as a qualitative matter, most of the value of the manuscript did lie in the information and ideas The Nation used. But appropriation of the "heart" of the manuscript in this sense is irrelevant to copyright analysis because copyright does not preclude a second author's use of information and ideas. Perhaps tacitly recognizing that reliance on the District Court finding is unjustifiable, the Court goes on to evaluate independently the quality of the expression appearing in The Nation's article. The Court states that "[t]he portions actually quoted were selected by Mr. Navasky as among the most powerful passages." Ante, at 565. On the basis of no more than this observation, and perhaps also inference from the fact that the quotes were important to The Nation's article,[24] the Court adheres to its conclusion that The Nation appropriated the heart of the Ford manuscript. *601 At least with respect to the six particular quotes of Mr. Ford's observations and reflections about President Nixon, I agree with the Court's conclusion that The Nation appropriated some literary form of substantial quality. I do not agree, however, that the substantiality of the expression taken was clearly excessive or inappropriate to The Nation's news reporting purpose. Had these quotations been used in the context of a critical book review of the Ford work, there is little question that such a use would be fair use within the meaning of 107 of the Act. The amount and substantiality of the use — in both quantitative and qualitative terms — would have certainly been appropriate to the purpose of such a use. It is difficult to see how the use of these quoted words in a news report is less appropriate. The Court acknowledges as much: "[E]ven substantial quotations might qualify as a fair use in a review of a published work or a news account of a speech that had been delivered to the public." See ante, at 564. With respect to the motivation for the pardon and the insights into the psyche of the fallen President, for example, Mr. Ford's reflections and perceptions are so laden with emotion and deeply personal value judgments that full understanding is immeasurably enhanced by reproducing a limited portion of Mr. Ford's own words. The importance of the work, after all, lies not only in revelation of previously unknown fact but also in revelation of the thoughts, ideas, motivations, and fears of two Presidents at a critical moment in our national history. Thus, while the question is not easily resolved, it is difficult to say that the use of the six quotations was gratuitous in relation to the news reporting purpose. Conceding that even substantial quotation is appropriate in a news report of a published work, the Court would seem to agree that this quotation was not clearly inappropriate in relation to The Nation's news reporting purpose. For the Court, the determinative factor is again that the substantiality of the use was inappropriate in relation to the prepublication *602 timing of that use. That is really an objection to the effect of this use on the market for the copyrighted work, and is properly evaluated as such. The Effect on the Market. The Court correctly notes that the effect on the market "is undoubtedly the single most important element of fair use." Ante, at 566, citing 3 Nimmer 13.05[A], at 13-76, and the Court properly focuses on whether The Nation's use adversely affected Harper & Row's serialization potential and not merely the market for sales of the Ford work itself. Ante, at 566-567. Unfortunately, the Court's failure to distinguish between the use of information and the appropriation of literary form badly skews its analysis of this factor. For purposes of fair use analysis, the Court holds, it is sufficient that the entire article containing the quotes eroded the serialization market potential of Mr. Ford's work. Ante, at 567. On the basis of Time's cancellation of its serialization agreement, the Court finds that "[r]arely will a case of copyright infringement present such clear-cut evidence of actual damage." In essence, the Court finds that by using some quotes in a story about the Nixon pardon, The Nation "competed for a share of the market of prepublication excerpts" ante, at 568, because Time planned to excerpt from the chapters about the pardo The Nation's publication indisputably precipitated Time's eventual cancellatio But that does not mean that The Nation's use of the 300 quoted words caused this injury to Harper & Row. Wholly apart from these quoted words, The Nation published significant information and ideas from the Ford manuscript. If it was this publication of information, and not the publication of the few quotations, that caused Time to abrogate its serialization agreement, then whatever the negative effect on the serialization market, that effect was the product of wholly legitimate activity. The Court of Appeals specifically held that "the evidence does not support a finding that it was the very limited use of expression per se which led to Time's decision not to print excerpts." *603 723 F. 2d, at 208. I fully agree with this holding. If The Nation competed with Time, the competition was not for a share of the market in excerpts of literary form but for a share of the market in the new information in the Ford work. That the information, and not the literary form, represents most of the real value of the work in this case is perhaps best revealed by the following provision in the contract between Harper & Row and Mr. Ford: "Author acknowledges that the value of the rights granted to publisher hereunder would be substantially diminished by Author's public discussion of the unique information not previously disclosed about Author's career and personal life which will be included in the Work, and Author agrees that Author will endeavor not to disseminate any such information in any media, including television, radio and newspaper and magazine interviews prior to the first publication of the work hereunder." App. 484. The contract thus makes clear that Harper & Row sought to benefit substantially from monopolizing the initial revelation of information known only to Ford. Because The Nation was the first to convey the information in this case, it did perhaps take from Harper & Row some of the value that publisher sought to garner for itself through the contractual arrangement with Ford and the license to Time. Harper & Row had every right to seek to monopolize revenue from that potential market through contractual arrangements but it has no right to set up copyright as a shield from competition in that market because copyright does not protect informatio The Nation had every right to seek to be the first to publish that informatio[25] *604 Balancing the Interests. Once the distinction between information and literary form is made clear, the statutorily prescribed process of weighing the four statutory fair use factors discussed above leads naturally to a conclusion that The Nation's limited use of literary form was not an infringement. Both the purpose of the use and the nature of the copyrighted work strongly favor the fair use defense here. The Nation appropriated Mr. Ford's expression for a purpose Congress expressly authorized in 107 and borrowed from a work whose nature justifies some appropriation to facilitate the spread of informatio The factor that is perhaps least favorable to the claim of fair use is the amount and substantiality of the expression used. Without question, a portion of the expression appropriated was among the most poignant in the Ford manuscript. But it is difficult to conclude that this taking was excessive in relation to the news reporting purpose. In any event, because the appropriation of literary form — as opposed to the use of information — was not shown to injure Harper & Row's economic interest, any uncertainty with respect to the propriety of the amount of expression borrowed should be resolved in favor of a finding of fair use.[26] In light of the circumscribed scope of the quotation in The Nation's article and the undoubted validity of the purpose *605 motivating that quotation, I must conclude that the Court has simply adopted an exceedingly narrow view of fair use in order to impose liability for what was in essence a taking of unprotected informatio III The Court's exceedingly narrow approach to fair use permits Harper & Row to monopolize informatio This holding "effect[s] an important extension of property rights and a corresponding curtailment in the free use of knowledge and of ideas." International News The Court has perhaps advanced the ability of the historian — or at least the public official who has recently left office — to capture the full economic value of information in his or her possessio But the Court does so only by risking the robust debate of public issues that is the "essence of self-government." 379 U. S., at The Nation was providing the grist for that robust debate. The Court imposes liability upon The Nation for no other reason than that The Nation succeeded in being the first to provide certain information to the public. I dissent.

Justice White

second_dissenting

Woodard v. Hutchins

https://www.courtlistener.com/opinion/111059/woodard-v-hutchins/

https://www.courtlistener.com/api/rest/v3/clusters/111059/

1983-019

We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure it seems to us. It also seems to us that the Court's opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ and for that reason need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule. JUSTICE MARSHALL, dissenting. At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins' application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General's Office filed in this Court a 3 1/2-page, handwritten application to vacate Judge Phillips' stay. Without taking time to consider the basis of Judge Phillips' stay — indeed without waiting to receive the final draft of Judge Phillips' memorandum opinion — the Court has granted the application, apparently so that North Carolina can proceed with Hutchins' execution before his death warrant expires at 6 o'clock this evening. Given the posture *384 of this application and the dire consequences of error, I find the Court's haste outrageous. Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins' execution.[1] As JUSTICE BRENNAN has shown, ante, at 382, Judge Phillips' decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court's decision is that five Members of the Court have voted to vacate Judge Phillips' stay without even reading his opinion[2] or fully considering respondent's defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case.[3] In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers. Ironically, the Court's zealous efforts to authorize Hutchins' execution at the last minute may be futile. The North Carolina death penalty statute apparently requires that a new date of execution must be set whenever a stay of execution is issued and then vacated.[4] N. C. Gen. Stat. § 15-194 *385 (1983). Since Judge Phillips indisputably issued a stay of execution and the Court now vacates the stay, North Carolina law would seem to require that a new date of execution now be set.[5] Of course, the meaning of this provision is a question of North Carolina law, and is therefore to be decided by North Carolina courts. I trust, however, that the responsible North Carolina officials will consider whether Hutchins has a valid claim under this provision before the State proceeds with Hutchins' execution. I dissent.

We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure it seems to us. It also seems to us that the Court's opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ and for that reason need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule. JUSTICE MARSHALL, dissenting. At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins' application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General's Office filed in this Court a 3 1/2-page, handwritten application to vacate Judge Phillips' stay. Without taking time to consider the basis of Judge Phillips' stay — indeed without waiting to receive the final draft of Judge Phillips' memorandum opinion — the Court has granted the application, apparently so that North Carolina can proceed with Hutchins' execution before his death warrant expires at 6 o'clock this evening. Given the posture *384 of this application and the dire consequences of error, I find the Court's haste outrageous. Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins' execution.[1] As JUSTICE BRENNAN has shown, ante, at 382, Judge Phillips' decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court's decision is that five Members of the Court have voted to vacate Judge Phillips' stay without even reading his opinion[2] or fully considering respondent's defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case.[3] In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers. Ironically, the Court's zealous efforts to authorize Hutchins' execution at the last minute may be futile. The North Carolina death penalty statute apparently requires that a new date of execution must be set whenever a stay of execution is issued and then vacated.[4] N. C. Gen. Stat. 15-194 *385 (1983). Since Judge Phillips indisputably issued a stay of execution and the Court now vacates the stay, North Carolina law would seem to require that a new date of execution now be set.[5] Of course, the meaning of this provision is a question of North Carolina law, and is therefore to be decided by North Carolina courts. I trust, however, that the responsible North Carolina officials will consider whether Hutchins has a valid claim under this provision before the State proceeds with Hutchins' execution. I dissent.

Justice Powell

concurring

Havens Realty Corp. v. Coleman

https://www.courtlistener.com/opinion/110654/havens-realty-corp-v-coleman/

https://www.courtlistener.com/api/rest/v3/clusters/110654/

1981-047

In claiming standing based on a deprivation of the benefits of an integrated community, the individual respondents alleged generally that they lived in the city of Richmond or in Henrico County. This is an area of roughly 269 square miles, inhabited in 1978 by about 390,000 persons. Accordingly, as the Court holds, it is at best implausible that discrimination within two adjacent apartment complexes could give rise to "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501 (1975), throughout this vast area. See ante, at 377. This, to me, is the constitutional core of the Court's decision. "Distinct and palpable" injury remains the minimal constitutional requirement for standing in a federal court. Although I join the opinion of the Court, I write separately to emphasize my concern that the Art. III requirement of a genuine case or controversy not be deprived of all substance by meaningless pleading. Our prior cases have upheld standing, in cases of this kind, where the effects of discrimination were alleged to have occurred only within "a relatively compact neighborhood." Gladstone, Realtors v. Village of Bellwood, 441 U. S., 91, 114 (1979). By implication *383 we today reaffirm that limitation. See ante, at 377. I therefore am troubled, not by the opinion of the Court, but by the record on which that opinion is based. After nearly four years of litigation we know only what the individual respondents chose to plead in their complaint — that they live or lived within a territory of 269 square miles, within which petitioners allegedly committed discrete acts of housing discrimination. The allegation would have been equally informative if the area assigned had been the Commonwealth of Virginia. In Warth, supra, at 501-502, we noted that a district court properly could deal with a vague averment as to standing by requiring amendment: "[I]t is within the trial court's power to allow or require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." The Federal Rules of Civil Procedure also permit a defendant to move for a more definite statement of the claims against him: "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just." Fed. Rule. Civ. Proc. 12(e). *384 See United States v. SCRAP, 412 U.S. 669, 689-690, n. 15 (1973) (Rule 12(e) motion would have been appropriate for defendants confronted with standing allegations "wholly barren of specifics"). In this case neither the District Court not apparently counsel for the parties took appropriate action to prevent the case from reaching an appellate court with only meaningless averments concerning the disputed question of standing. One can well understand the impatience of the District Court that dismissed the complaint. Yet our cases have established the preconditions to dismissal because of excessive vagueness, e. g., Gladstone, Realtors, supra, at 112-115, with regard to standing, and those conditions were not observed. The result is more than a little absurd: Both the Court of Appeals and this Court have been called upon to parse pleadings devoid of any hint of support or nonsupport for an allegation essential to jurisdiction. Liberal pleading rules have both their merit and their price. This is a textbook case of a high price — in terms of a severe imposition on already overburdened federal courts as well as unjustified expense to the litigants. This also is a particularly disturbing example of lax pleading, for it threatens to trivialize what we repeatedly have recognized as a constitutional requirement of Art. III standing. See, e. g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-473, 475-476 (1982); Warth, supra, at 498. In any event, in the context of this case, as it reaches us after some four years of confusing and profitless litigation, it is not within our province to order a dismissal. I therefore join the opinion of the Court.

In claiming standing based on a deprivation of the benefits of an integrated community, the individual respondents alleged generally that they lived in the city of Richmond or in Henrico County. This is an area of roughly 269 square miles, inhabited in 1978 by about 390,000 persons. Accordingly, as the Court holds, it is at best implausible that discrimination within two adjacent apartment complexes could give rise to "distinct and palpable injury," throughout this vast area. See ante, at 377. This, to me, is the constitutional core of the Court's decision. "Distinct and palpable" injury remains the minimal constitutional requirement for standing in a federal court. Although I join the opinion of the Court, I write separately to emphasize my concern that the Art. III requirement of a genuine case or controversy not be deprived of all substance by meaningless pleading. Our prior cases have upheld standing, in cases of this kind, where the effects of discrimination were alleged to have occurred only within "a relatively compact neighborhood." Gladstone, By implication *383 we today reaffirm that limitation. See ante, at 377. I therefore am troubled, not by the opinion of the Court, but by the record on which that opinion is based. After nearly four years of litigation we know only what the individual respondents chose to plead in their complaint — that they live or lived within a territory of 269 square miles, within which petitioners allegedly committed discrete acts of housing discrimination. The allegation would have been equally informative if the area assigned had been the Commonwealth of Virginia. In at -502, we noted that a district court properly could deal with a vague averment as to standing by requiring amendment: "[I]t is within the trial court's power to allow or require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." The Federal Rules of Civil Procedure also permit a defendant to move for a more definite statement of the claims against him: "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just." Fed. Rule. Civ. Proc. 12(e). *384 See United In this case neither the District Court not apparently counsel for the parties took appropriate action to prevent the case from reaching an appellate court with only meaningless averments concerning the disputed question of standing. One can well understand the impatience of the District Court that dismissed the complaint. Yet our cases have established the preconditions to dismissal because of excessive vagueness, e. g., Gladstone, with regard to standing, and those conditions were not observed. The result is more than a little absurd: Both the Court of Appeals and this Court have been called upon to parse pleadings devoid of any hint of support or nonsupport for an allegation essential to jurisdiction. Liberal pleading rules have both their merit and their price. This is a textbook case of a high price — in terms of a severe imposition on already overburdened federal courts as well as unjustified expense to the litigants. This also is a particularly disturbing example of lax pleading, for it threatens to trivialize what we repeatedly have recognized as a constitutional requirement of Art. III standing. See, e. g., Valley Forge Christian ; In any event, in the context of this case, as it reaches us after some four years of confusing and profitless litigation, it is not within our province to order a dismissal. I therefore join the opinion of the Court.

Justice Scalia

concurring

California Div. of Labor Standards Enforcement v. Dillingham Constr., NA, Inc.

https://www.courtlistener.com/opinion/118081/california-div-of-labor-standards-enforcement-v-dillingham-constr-na/

https://www.courtlistener.com/api/rest/v3/clusters/118081/

1996-020

Since ERISA was enacted in 1974, this Court has accepted certiorari in, and decided, no less than 14 cases to resolve conflicts in the Courts of Appeals regarding ERISA preemption of various sorts of state law.[1] The rate of acceptance, *335 moreover, has not diminished (we have taken two more ERISA pre-emption cases so far this Term),[2] suggesting that our prior decisions have not succeeded in bringing clarity to the law. I join the Court's opinion today because it is a fair description of our prior case law, and a fair application of the more recent of that case law. Today's opinion is no more likely than our earlier ones, however, to bring clarity to this field— precisely because it does obeisance to all our prior cases, instead of acknowledging that the criteria set forth in some of them have in effect been abandoned. Our earlier cases sought to apply faithfully the statutory prescription that state laws are pre-empted "insofar as they . . . relate to any employee benefit plan." Hence the many statements, repeated today, to the effect that the ERISA pre-emption provision has a "broad scope," an "expansive sweep," is "broadly worded," "deliberately expansive," and "conspicuous for its breadth." Ante, at 324. But applying the "relate to" provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else. Accord, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995). The statutory text provides an illusory test, unless the Court is willing to decree a *336 degree of pre-emption that no sensible person could have intended—which it is not. I think it would greatly assist our function of clarifying the law if we simply acknowledged that our first take on this statute was wrong; that the "relate to" clause of the pre-emption provision is meant, not to set forth a test for pre-emption, but rather to identify the field in which ordinary field pre-emption applies—namely, the field of laws regulating "employee benefit plan[s] described in section 1003(a) of this title and not exempt under section 1003(b) of this title," 29 U.S. C. § 1144(a). Our new approach to ERISA pre-emption is set forth in John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86, 99 (1993): "[W]e discern no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis." I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict preemption. See generally Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (explaining general principles of field and conflict pre-emption); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (field pre-emption); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963) (conflict pre-emption). Nothing more mysterious than that; and except as establishing that, "relates to" is irrelevant.

Since ERISA was enacted in 1974, this Court has accepted certiorari in, and decided, no less than 14 cases to resolve conflicts in the Courts of Appeals regarding ERISA preemption of various sorts of state law.[1] The rate of acceptance, *335 moreover, has not diminished (we have taken two more ERISA pre-emption cases so far this Term),[2] suggesting that our prior decisions have not succeeded in bringing clarity to the law. I join the Court's opinion today because it is a fair description of our prior case law, and a fair application of the more recent of that case law. Today's opinion is no more likely than our earlier ones, however, to bring clarity to this field— precisely because it does obeisance to all our prior cases, instead of acknowledging that the criteria set forth in some of them have in effect been abandoned. Our earlier cases sought to apply faithfully the statutory prescription that state laws are pre-empted "insofar as they relate to any employee benefit plan." Hence the many statements, repeated today, to the effect that the ERISA pre-emption provision has a "broad scope," an "expansive sweep," is "broadly worded," "deliberately expansive," and "conspicuous for its breadth." Ante, at 324. But applying the "relate to" provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else. Accord, New York State Conference of Blue Cross & Blue Shield The statutory text provides an illusory test, unless the Court is willing to decree a *336 degree of pre-emption that no sensible person could have intended—which it is not. I think it would greatly assist our function of clarifying the law if we simply acknowledged that our first take on this statute was wrong; that the "relate to" clause of the pre-emption provision is meant, not to set forth a test for pre-emption, but rather to identify the field in which ordinary field pre-emption applies—namely, the field of laws regulating "employee benefit plan[s] described in section 1003(a) of this title and not exempt under section 1003(b) of this title," 29 U.S. C. 1144(a). Our new approach to ERISA pre-emption is set forth in John Hancock Mut. Life Ins. : "[W]e discern no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis." I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre-emption, and, of course, ordinary conflict preemption. See generally ; ; Florida Lime & Avocado Growers, Nothing more mysterious than that; and except as establishing that, "relates to" is irrelevant.

per_curiam

per_curiam

Doherty v. United States

https://www.courtlistener.com/opinion/108396/doherty-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108396/

1971-008

Applicant Doherty was convicted in federal court of smuggling marihuana. The Court of Appeals for the Ninth Circuit affirmed. Doherty's retained counsel, who had represented him both at trial and on appeal, withdrew after the appellate decision because Doherty was without funds to pay for legal services. Without opinion the Court of Appeals denied Doherty's pro se motion for appointment of counsel to assist in preparing a petition for writ of certiorari. Doherty has now filed a motion in this Court seeking appointment of counsel for that purpose. We treat the motion for appointment of counsel as a petition for writ of certiorari seeking review of the Court of Appeals' order denying the appointment. The Court of Appeals has a rule that counsel appointed for indigent appellants must, after adverse decision in the Court of Appeals, inform his client of the right to seek review in this Court and, if the client so desires, prepare a petition for certiorari.[*] In denying Doherty's *29 motion for counsel, the Court of Appeals apparently determined that its rule was of no help to Doherty, whose counsel had been retained rather than appointed. We defer to that court's construction of its own rule. However, it is not clear that the court also considered Doherty's motion in the light of the provisions of the Criminal Justice Act of 1964 insofar as they may be relevant to a federal prisoner's right to have counsel's help in seeking certiorari in this Court. 18 U.S. C. §§ 3006A (c), 3006A (d) (6), 3006A (g). See also H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Proceedings of a Special Session of the Judicial Conference of the United States, 36 F. R. D. 282, 291 (1965); Fed. Rule Crim. Proc. 44 (a). In order that the Court of Appeals may give further consideration to the request for counsel, Doherty's motion for leave to proceed in forma pauperis is granted, the petition for certiorari is granted, the judgment of the Court of Appeals affirming Doherty's conviction and its order denying appointment of counsel are vacated, and the case is remanded to that court for further proceedings consistent with this opinion, including re-entry of its judgment of affirmance and appropriate reconsideration of the motion for appointment of counsel. So ordered. MR.

Applicant Doherty was convicted in federal court of smuggling marihuana. The Court of Appeals for the Ninth Circuit affirmed. Doherty's retained counsel, who had represented him both at trial and on appeal, withdrew after the appellate decision because Doherty was without funds to pay for legal services. Without opinion the Court of Appeals denied Doherty's pro se motion for appointment of counsel to assist in preparing a petition for writ of certiorari. Doherty has now filed a motion in this Court seeking appointment of counsel for that purpose. We treat the motion for appointment of counsel as a petition for writ of certiorari seeking review of the Court of Appeals' order denying the appointment. The Court of Appeals has a rule that counsel appointed for indigent appellants must, after adverse decision in the Court of Appeals, inform his client of the right to seek review in this Court and, if the client so desires, prepare a petition for certiorari.[*] In denying Doherty's *29 motion for counsel, the Court of Appeals apparently determined that its rule was of no help to Doherty, whose counsel had been retained rather than appointed. We defer to that court's construction of its own rule. However, it is not clear that the court also considered Doherty's motion in the light of the provisions of the Criminal Justice Act of 1964 insofar as they may be relevant to a federal prisoner's right to have counsel's help in seeking certiorari in this Court. 18 U.S. C. 3006A (c), 3006A (d) (6), 3006A (g). See also H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964); Report of the Proceedings of a Special Session of the Judicial Conference of the United States, 36 F. R. D. 282, 291 (1965); Fed. Rule Crim. Proc. 44 (a). In order that the Court of Appeals may give further consideration to the request for counsel, Doherty's motion for leave to proceed in forma pauperis is granted, the petition for certiorari is granted, the judgment of the Court of Appeals affirming Doherty's conviction and its order denying appointment of counsel are vacated, and the case is remanded to that court for further proceedings consistent with this opinion, including re-entry of its judgment of affirmance and appropriate reconsideration of the motion for appointment of counsel. So ordered. MR.

Justice Brennan

majority

Delaware Tribal Business Comm. v. Weeks

https://www.courtlistener.com/opinion/109605/delaware-tribal-business-comm-v-weeks/

https://www.courtlistener.com/api/rest/v3/clusters/109605/

1976-054

An Act of Congress providing for distribution of funds to certain Delaware Indians, pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 1854 treaty, is challenged in this action by a group of Delawares excluded from the distribution. The question presented by this litigation is whether their exclusion denies them equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment.[1] I A brief history of the migrations of the Delaware Indians will serve as a helpful backdrop to the litigation.[2] The Delawares originally resided in the Northeastern United States, in what are now southern New York, New Jersey, part of Pennsylvania, *76 and part of Delaware. The Munsee Indians, related to the Delawares, resided in the northern part of that area. Under pressure from new settlers, both the Delawares and the Munsees were gradually forced to move westward, and by 1820 they were geographically scattered. During the trek westward the main branch of the Delawares stopped for varying lengths of time in what are now Ohio, Indiana, and Missouri, while others went to Arkansas, Oklahoma, and Texas. In 1818, the Delawares in Indiana ceded their lands in that State to the United States in return for a promise of land west of the Mississippi River.[3] The Delawares then moved to Missouri for a short time, but under an 1829 "supplementary article" to the 1818 treaty, were again moved to what they were told would be their permanent residence on a reservation in Kansas.[4] The establishment of this reservation was purportedly the fulfillment of the promise made in the 1818 treaty to provide western land in return for their agreement to leave their Indiana lands. Some Delawares, however, never joined the main body of the Delawares on the Kansas reservation. Among these was a small group that migrated to Oklahoma and settled with the Wichita and Caddo Indians. For a time during the 1850's and 1860's the Delawares in Kansas expected this group to rejoin the main body of the tribe there, but these Indians, called the "Absentee Delawares" in this suit, stayed with the Wichitas and Caddos.[5] Their descendants *77 have remained in Oklahoma through the present day, and are a federally recognized Indian tribe.[6] By the 1850's, the main body of the Delaware Nation, together with a small number of Munsees, had assembled on the "permanent" reservation in Kansas at the confluence of the Kansas and Missouri Rivers. But the hope that the Kansas reservation would be the Delawares' last stopping place was short-lived. In 1866, the Delawares living on the reservation signed a treaty, under which they were to move to "Indian Country" in Oklahoma to live with the Cherokees.[7] Each Delaware moving to Indian Country and enrolling on the proper register was to receive a life estate of 160 acres of Cherokee land and the right to become a member of the Cherokee Nation. Most of the Delawares on the Kansas reservation accepted these conditions and moved to Oklahoma, where they were gradually assimilated for most purposes into the Cherokee Nation, and were permitted to share equally with the Cherokees in the general funds of that tribe. See, e. g., Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904); Cherokee Nation v. Journeycake, 155 U.S. 196 (1894). Despite their association with the Cherokees, these Indians, called "Cherokee Delawares" in this suit, have over the years maintained a distinct group identity, and they are today a federally recognized tribe.[8] *78 The 1866 treaty did not require all Delawares on the Kansas reservation to move to Oklahoma. Rather, the treaty provided that any Delawares who agreed to "dissolve their relations with their tribe" and become citizens of the United States might elect to remain in Kansas. Such Delawares would receive 80 acres of land in Kansas in fee simple and a "just proportion" of the tribe's credits "then held in trust by the United States." but thereafter could not "further participate in their [tribal] councils, nor share in their property or annuities."[9] Twenty-one adult Delawares chose to accept these conditions and remain in Kansas.[10] Their descendants, called "Kansas Delawares" in this suit, are not a federally recognized tribe.[11] In 1854, while they still lived on the Kansas reservation, the main body of the Delawares signed a treaty with the *79 United States under which the United States was to sell certain reservation tribal "trust" lands at public auction. In 1856 and 1857, the United States breached the treaty by selling the lands privately and not at public auction. Approximately 100 years later, the Cherokee and Absentee Delawares brought separate but identical claims before the Indian Claims Commission arising out of this breach of the 1854 treaty. The Commission found that the two groups were "entitled jointly to represent the entire Delaware Tribe," Absentee Delaware Tribe of Oklahoma v. United States, 21 Ind. Cl. Comm. 344, 345 (1969), citing Delaware Tribe v. United States, 2 Ind. Cl. Comm. 253 (1952), aff'd as to parties, 130 Ct. Cl. 782, 128 F. Supp. 391 (1955), and determined that the private sales of the trust lands had realized $1,385,617.81 less than would have been realized for the tribe at public auction. The Commission awarded the tribe that sum plus interest, or a total of $9,168,171.13.[12] 21 Ind. Cl. Comm., at 369-370. Congress appropriated funds to pay the award and later enacted Pub. L. 92-456 providing for its distribution.[13]*80 The statute limited distribution to the Cherokee and Absentee Delawares, with amounts payable determined under a formula provided in 25 U.S. C. § 1294. Ten percent of the *81 total sum was to be set aside for the two tribal bodies, and was to be retained by the United States to the credit of the tribes, to be used in ways approved by the Secretary *82 of the Interior. The remaining 90% was to be divided among Cherokee Delawares whose names appeared on a "per capita payroll" described in § 1292 (c) (1), and among Absentee Delawares whose names appeared on a "constructed base census roll" described in § 1292 (c) (2).[14] Appellee Weeks, on behalf of all the Kansas Delawares, instituted this action against the United States, the Cherokee Delawares, the Absentee Delawares, and the Secretary of the Interior in the District Court for the Western District of Oklahoma, alleging that the exclusion of the Kansas Delawares from the distribution of the award constituted a denial of the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. A three-judge court was convened.[15] The court declared, one judge dissenting, that Congress' failure to include the Kansas Delawares among those entitled to share in the award under Pub. L. 92-456 violated the Due Process Clause. The court also enjoined the Secretary of the Interior from distributing any of the appropriated funds pending amendment of the distribution provisions of the statute, or enactment of further legislation providing for distribution of the funds. Weeks v. United States, 406 F. Supp. 1309, 1346-1347 (1975). Each defendant separately appealed to this Court, the Secretary of the Interior in No. 75-1495, the Cherokee Delawares in No. 75-1301, and the Absentee Delawares in No. 75-1335. We *83 noted probable jurisdiction of the three appeals, 426 U.S. 933 (1976). We reverse.[16] II Appellants differ on the issue of whether this suit presents a nonjusticiable political question because of Congress' pervasive authority, rooted in the Constitution, to control tribal property. Stated in other words, they differ on the issue of whether congressional exercise of control over tribal property is final and not subject to judicial scrutiny, since the power over distribution of tribal property has "been committed by the Constitution" to the Congress, Baker v. Carr, 369 U.S. 186, 211 (1962), and since "[t]he nonjusticiability of a political question is primarily a function of the separation of powers," id., at 210. Appellants Cherokee and Absentee Delawares, citing Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), argue that Congress' distribution plan reflects a congressional determination not subject to scrutiny by the Judicial Branch, and that the District Court therefore erred in reaching the merits of this action. Appellant Secretary of the Interior, on the other hand, submits that the plenary power *84 of Congress in matters of Indian affairs "does not mean that all federal legislation concerning Indians is . . . immune from judicial scrutiny or that claims, such as those presented by [appellees], are not justiciable." Brief for Appellants in No. 75-1495, p. 19 n. 19. We agree with the Secretary of the Interior. The statement in Lone Wolf, supra, at 565, that the power of Congress "has always been deemed a political one, not subject to be controlled by the judicial department of the government," however pertinent to the question then before the Court of congressional power to abrogate treaties, see generally Antoine v. Washington, 420 U.S. 194, 201-204 (1975), has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment. See, e. g., Morton v. Mancari, 417 U.S. 535 (1974). "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion); see also United States v. Creek Nation, 295 U.S. 103, 109-110 (1935); cf. United States v. Jim, 409 U.S. 80, 82 n. 3 (1972). The question is therefore what judicial review of Pub. L. 92-456 is appropriate in light of the broad congressional power to prescribe the distribution of property of Indian tribes. The general rule emerging from our decisions ordinarily requires the judiciary to defer to congressional determination of what is the best or most efficient use for which tribal funds should be employed. Sizemore v. Brady, 235 U.S. 441, 449 (1914). Thus, Congress may choose to differentiate among groups of Indians in the same tribe in making a distribution, Simmons v. Seelatsee, 384 U.S. 209 (1966), aff'g 244 F. Supp. 808 (ED Wash. 1965), or on the other hand to expand a class of tribal beneficiaries entitled to share in royalties from tribal lands, United States v. Jim, *85 supra, or to devote to tribal use mineral rights under allotments that otherwise would have gone to individual allottees, Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976). The standard of review most recently expressed is that the legislative judgment should not be disturbed "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians. . . ." Morton v. Mancari, supra, at 555. III We are persuaded on the record before us that Congress' omission of the appellee Kansas Delawares from the distribution under Pub. L. 92-456 was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." First, the Kansas Delawares are not a recognized tribal entity, but are simply individual Indians with no vested rights in any tribal property. Public Law 92-456 distributes tribal rather than individually owned property, for the funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity, the Delaware Nation. It was that tribal entity, represented jointly in the suit before the Indian Claims Commission by the appellants Cherokee Delawares and Absentee Delawares, that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U.S. C. §§ 70a, 70i; see Minnesota Chippewa Tribe v. United States, 161 Ct. Cl. 258, 270-271, 315 F.2d 906, 913-914 (1963). As tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari, *86 supra, at 551-552. This authority of Congress to control tribal assets has been termed "one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs . . . ." F. Cohen, Handbook of Federal Indian Law 94, 97 (1942). The ancestors of the Kansas Delawares severed their relations with the tribe when they elected under the 1866 treaty to become United States citizens entitled to participate in tribal assets only to the extent of their "just proportion . . . of the cash value of the credits of said tribe . . . then held in trust by the United States." (Emphasis supplied.) We cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportionate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware Tribes, was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Second, the exclusion of the Kansas Delawares under Pub. L. 92-456 was not their first exclusion from participation in a distribution of tribal assets. In 1904 Congress appropriated $150,000 to settle claims of the Delaware Tribe of Indians, one of them arising out of another injustice done to the Delawares under the 1854 treaty, unrelated to the breach which forms the basis for the distribution under Pub. L. 92-456.[17] See United States v. Delaware Tribe of Indians, 192 Ct. Cl. 385, 403-405, 427 F.2d 1218, 1229-1230 (1970). The 1904 Act directed the Secretary of the Treasury to pay the settlement to the tribe known in this suit as the Cherokee Delawares "as said tribe shall in council direct," thereby excluding both *87 Absentee and Kansas Delawares. 33 Stat. 189, 222. This distribution was limited to the Cherokee Delawares although it was compensation, inter alia, for a wrong to the Delawares in 1854, before the Kansas Delawares split off from the tribe. Some Kansas Delawares unsuccessfully sought to participate in the distribution but, as noted by the District Court in this case, "were denied participation on grounds similar to some of those argued in the present case." 406 F. Supp., at 1321 n. 15. The Comptroller of the Treasury concluded that "[m]anifestly [the Kansas Delawares] were not entitled to participate in the distribution of annuities or other funds due or belonging to the Delaware tribe" for: "The provision in the [A]ct of April 21, 1904, supra, authorizes and directs payment to the `Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct' . . . . The proviso immediately following the appropriation in the [A]ct emphasizes the clear indication that the appropriation was made for the tribe as distinguished from the Delaware Indians who had severed their tribal relations and become citizens of the United States." 11 Comp. Dec. 496, 500 (1905) (emphasis in original). While this precedent of excluding the Kansas Delawares from the 1904 distribution does not of itself legitimate their exclusion from the present distribution statute, their earlier exclusion nevertheless indicates that Congress has historically distinguished them from the Cherokee Delawares in distributing an award based in part on a breach of the very treaty involved in this litigation. Third, Congress deliberately limited the distribution under Pub. L. 92-456 to the Cherokee and Absentee Delawares because of substantial problems it apprehended might attend a wider distribution. H. R. 5200, the bill originally introduced to distribute the funds, had contained a "catchall" clause authorizing distribution "to include the names of all *88 persons born on or prior to and living on the date of this Act who are lineal descendants of members of the Delaware Tribe as it existed in 1854 . . . ."[18] This catchall would have been analogous to a clause in a 1968 statute distributing funds to compensate the Delaware Tribe for the United States' inadequate payment to them when they were moved off their Indiana lands in 1818.[19] Under the 1968 catchall clause, all lineal descendants of the tribe as it existed in 1818 were permitted to share in the distribution, 25 U.S. C. § 1181 (d), and about 300 Kansas Delawares were thereby allowed to participate in the distribution of the award redressing the 1818 wrong. The omission of the catchall provision from Pub. L. 92-456, as finally enacted, followed legislative hearings at which the Cherokee and Absentee Delawares testified. At these hearings they directed Congress' attention to problems that had arisen when Munsee Indians, in addition to the Kansas Delawares, had claimed eligibility under the catchall provision of the 1968 statute.[20] Because of a dispute over the eligibility of the Munsees to participate under the catchall clause, there had been inordinate delays in the distribution of the funds. Indeed, as late as 1972 many of the Munsees' claims *89 were still unresolved, and distribution under the 1968 statute was virtually paralyzed. Hearings on H. R. 5200 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 12, 22, 59, 79, 97, 105-106, 113 (Mar. 13, 1972) (unpublished). We recognize, as did the District Court, that Congress omitted the catchall provision from the present statute in order to avoid a repetition of the problems with the Munsees, and that Congress was not "made aware that the limitation of distribution to [the Cherokee and Absentee Delawares] would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas Delawares do." 406 F. Supp., at 1332.[21] But we do not conclude from Congress' ignorance of the effect of the elimination of the catchall on the Kansas Delawares that the statute is therefore irrational. Congress chose to limit distribution of the award to the Cherokee and the Absentee Delawares, in whose names the Delawares' claims had been prosecuted before the Indian Claims Commission, and whom the Commission had found to represent the interests of all the Delawares. Regardless of Congress' knowledge of the effect of this limitation on the Kansas Delawares, we cannot say that the congressional choice, though predicated upon the Munsee experience under the 1968 statute, does not rationally support its decision to avoid undue delay, administrative difficulty, and potentially unmeritorious claims by distributing the award only to the Cherokee and Absentee Delawares.[22] *90 IV Our conclusion that the exclusion of the Kansas Delawares from distribution under Pub. L. 92-456 does not offend the Due Process Clause of the Fifth Amendment of course does not preclude Congress from revising the distribution scheme to include the Kansas Delawares. The distribution authorized by Pub. L. 92-456 has not yet occurred, and Congress has the power to revise its original allocation. United States v. Jim, 409 U. S., at 82-83. Reversed. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the result. I join Parts I and II of the Court's opinion, but otherwise I concur only in the result. For me, the reversal of the District Court's judgment is not a result that is so inevitable and so easily and smoothly reached as a reading of Part III of the Court's opinion makes it appear. The Court's justifications for exclusion of the Kansas Delawares are not very persuasive. The first— favoritism toward tribal Indians—is undermined by the fact that Absentee Delawares who are not members of that tribe nevertheless are entitled to participate. Ante, at 82 n. 14. The second—exclusion from a prior distribution—is troublesome because it is difficult for me to see how perceived prior unfair treatment buttresses further unfairness. And I wonder about the statement, ante, at 87, that Congress "has historically *91 distinguished" the Kansas Delawares from the Cherokee Delawares in distributing tribal awards, when in fact both participated in the 1968 allocation that Congress authorized for the Delawares. The third justification—administrative convenience in eliminating the catchall clause— may have some weight. But, as the opinion acknowledges, ante, at 88-89, there was no problem with the Kansas Delawares in the distribution of the 1968 award; the administrative difficulty was only with the Munsees. Nevertheless, having said all this, I am not persuaded that the Court errs in its conclusion. For me, the case is one of that rare type in which the argument on each side is not at all strong. With the litigation in this lukewarm posture, I conclude that we must acknowledge that there necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Congress must have a large measure of flexibility in allocating Indian awards, and what it has done here is not beyond the constitutional pale. MR.

An Act of Congress providing for distribution of funds to certain Delaware Indians, pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 18 treaty, is challenged in this action by a group of excluded from the distribution. The question presented by this litigation is whether their exclusion denies them equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment.[1] I A brief history of the migrations of the Delaware Indians will serve as a helpful backdrop to the litigation.[2] The originally resided in the Northeastern United States, in what are now southern New York, New Jersey, part of Pennsylvania, *76 and part of Delaware. The Munsee Indians, related to the resided in the northern part of that area. Under pressure from new settlers, both the and the Munsees were gradually forced to move westward, and by 1820 they were geographically scattered. During the trek westward the main branch of the stopped for varying lengths of time in what are now Ohio, Indiana, and Missouri, while others went to Arkansas, Oklahoma, and Texas. In 1818, the in Indiana ceded their lands in that State to the United States in return for a promise of land west of the Mississippi River.[3] The then moved to Missouri for a short time, but under an 1829 "supplementary article" to the 1818 treaty, were again moved to what they were told would be their permanent residence on a reservation in Kansas.[4] The establishment of this reservation was purportedly the fulfillment of the promise made in the 1818 treaty to provide western land in return for their agreement to leave their Indiana lands. Some however, never joined the main body of the on the Kansas reservation. Among these was a small group that migrated to Oklahoma and settled with the Wichita and Caddo Indians. For a time during the 1850's and 1860's the in Kansas expected this group to rejoin the main body of the tribe there, but these Indians, called the "Absentee " in this suit, stayed with the Wichitas and Caddos.[5] Their descendants *77 have remained in Oklahoma through the present day, and are a federally recognized Indian tribe.[6] By the 1850's, the main body of the Delaware Nation, together with a small number of Munsees, had assembled on the "permanent" reservation in Kansas at the confluence of the Kansas and Missouri Rivers. But the hope that the Kansas reservation would be the ' last stopping place was short-lived. In 1866, the living on the reservation signed a treaty, under which they were to move to "Indian Country" in Oklahoma to live with the Cherokees.[7] Each Delaware moving to Indian Country and enrolling on the proper register was to receive a life estate of 160 acres of Cherokee land and the right to become a member of the Cherokee Nation. Most of the on the Kansas reservation accepted these conditions and moved to Oklahoma, where they were gradually assimilated for most purposes into the Cherokee Nation, and were permitted to share equally with the Cherokees in the general funds of that tribe. See, e. g., Delaware ; Cherokee Despite their association with the Cherokees, these Indians, called "Cherokee " in this suit, have over the years maintained a distinct group identity, and they are today a federally recognized tribe.[8] *78 The 1866 treaty did not require all on the Kansas reservation to move to Oklahoma. Rather, the treaty provided that any who agreed to "dissolve their relations with their tribe" and become citizens of the United States might elect to remain in Kansas. Such would receive 80 acres of land in Kansas in fee simple and a "just proportion" of the tribe's credits "then held in trust by the United States." but thereafter could not "further participate in their [tribal] councils, nor share in their property or annuities."[9] Twenty-one adult chose to accept these conditions and remain in Kansas.[10] Their descendants, called "Kansas " in this suit, are not a federally recognized tribe.[11] In 18, while they still lived on the Kansas reservation, the main body of the signed a treaty with the *79 United States under which the United States was to sell certain reservation tribal "trust" lands at public auction. In 1856 and 1857, the United States breached the treaty by selling the lands privately and not at public auction. Approximately 100 years later, the Cherokee and Absentee brought separate but identical claims before the Indian Claims Commission arising out of this breach of the 18 treaty. The Commission found that the two groups were "entitled jointly to represent the entire Delaware Tribe," Absentee Delaware Tribe of citing Delaware aff'd as to parties, and determined that the private sales of the trust lands had realized $1,385,617.81 less than would have been realized for the tribe at public auction. The Commission awarded the tribe that sum plus interest, or a total of $9,168,171.13.[12] -370. Congress appropriated funds to pay the award and later enacted providing for its distribution.[13]*80 The statute limited distribution to the Cherokee and Absentee with amounts payable determined under a formula provided in 25 U.S. C. 1294. Ten percent of the *81 total sum was to be set aside for the two tribal bodies, and was to be retained by the United States to the credit of the tribes, to be used in ways approved by the Secretary *82 of the Interior. The remaining 90% was to be divided among Cherokee whose names appeared on a "per capita payroll" described in 1292 (c) (1), and among Absentee whose names appeared on a "constructed base census roll" described in 1292 (c) (2).[14] Appellee Weeks, on behalf of all the Kansas instituted this action against the United States, the Cherokee the Absentee and the Secretary of the Interior in the District Court for the Western District of Oklahoma, alleging that the exclusion of the Kansas from the distribution of the award constituted a denial of the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. A three-judge court was convened.[15] The court declared, one judge dissenting, that Congress' failure to include the Kansas among those entitled to share in the award under violated the Due Process Clause. The court also enjoined the Secretary of the Interior from distributing any of the appropriated funds pending amendment of the distribution provisions of the statute, or enactment of further legislation providing for distribution of the funds. Each defendant separately appealed to this Court, the Secretary of the Interior in No. 75-1495, the Cherokee in No. 75-1301, and the Absentee in No. 75-1335. We *83 noted probable jurisdiction of the three appeals, We reverse.[16] II Appellants differ on the issue of whether this suit presents a nonjusticiable political question because of Congress' pervasive authority, rooted in the Constitution, to control tribal property. Stated in other words, they differ on the issue of whether congressional exercise of control over tribal property is final and not subject to judicial scrutiny, since the power over distribution of tribal property has "been committed by the Constitution" to the Congress, and since "[t]he nonjusticiability of a political question is primarily a function of the separation of powers," Appellants Cherokee and Absentee citing Lone argue that Congress' distribution plan reflects a congressional determination not subject to scrutiny by the Judicial Branch, and that the District Court therefore erred in reaching the merits of this action. Appellant Secretary of the Interior, on the other hand, submits that the plenary power *84 of Congress in matters of Indian affairs "does not mean that all federal legislation concerning Indians is immune from judicial scrutiny or that claims, such as those presented by [appellees], are not justiciable." Brief for Appellants in No. 75-1495, p. 19 n. 19. We agree with the Secretary of the Interior. The statement in Lone that the power of Congress "has always been deemed a political one, not subject to be controlled by the judicial department of the government," however pertinent to the question then before the Court of congressional power to abrogate treaties, see generally has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment. See, e. g., "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United ; see also United ; cf. United The question is therefore what judicial review of is appropriate in light of the broad congressional power to prescribe the distribution of property of Indian tribes. The general rule emerging from our decisions ordinarily requires the judiciary to defer to congressional determination of what is the best or most efficient use for which tribal funds should be employed. Thus, Congress may choose to differentiate among groups of Indians in the same tribe in making a distribution, aff'g or on the other hand to expand a class of tribal beneficiaries entitled to share in royalties from tribal lands, United *85 or to devote to tribal use mineral rights under allotments that otherwise would have gone to individual allottees, Northern Cheyenne The standard of review most recently expressed is that the legislative judgment should not be disturbed "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians." III We are persuaded on the record before us that Congress' omission of the appellee Kansas from the distribution under was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." First, the Kansas are not a recognized tribal entity, but are simply individual Indians with no vested rights in any tribal property. distributes tribal rather than individually owned property, for the funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity, the Delaware Nation. It was that tribal entity, represented jointly in the suit before the Indian Claims Commission by the appellants Cherokee and Absentee that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U.S. C. 70a, 70i; see Minnesota Chippewa As tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself." *86 This authority of Congress to control tribal assets has been termed "one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs" F. Cohen, Handbook of Federal Indian Law 94, 97 (1942). The ancestors of the Kansas severed their relations with the tribe when they elected under the 1866 treaty to become United States citizens entitled to participate in tribal assets only to the extent of their "just proportion of the cash value of the credits of said tribe then held in trust by the United States." (Emphasis supplied.) We cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportionate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware Tribes, was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Second, the exclusion of the Kansas under was not their first exclusion from participation in a distribution of tribal assets. In Congress appropriated $150,000 to settle claims of the Delaware Tribe of Indians, one of them arising out of another injustice done to the under the 18 treaty, unrelated to the breach which forms the basis for the distribution under[17] See United The Act directed the Secretary of the Treasury to pay the settlement to the tribe known in this suit as the Cherokee "as said tribe shall in council direct," thereby excluding both *87 Absentee and Kansas 222. This distribution was limited to the Cherokee although it was compensation, inter alia, for a wrong to the in 18, before the Kansas split off from the tribe. Some Kansas unsuccessfully sought to participate in the distribution but, as noted by the District Court in this case, "were denied participation on grounds similar to some of those argued in the present case." n. 15. The Comptroller of the Treasury concluded that "[m]anifestly [the Kansas ] were not entitled to participate in the distribution of annuities or other funds due or belonging to the Delaware tribe" for: "The provision in the [A]ct of April 21, authorizes and directs payment to the `Delaware tribe of Indians residing in the Cherokee Nation, as said tribe shall in council direct' The proviso immediately following the appropriation in the [A]ct emphasizes the clear indication that the appropriation was made for the tribe as distinguished from the Delaware Indians who had severed their tribal relations and become citizens of the United States." 11 Comp. Dec. 496, 500 (1905) (emphasis in original). While this precedent of excluding the Kansas from the distribution does not of itself legitimate their exclusion from the present distribution statute, their earlier exclusion nevertheless indicates that Congress has historically distinguished them from the Cherokee in distributing an award based in part on a breach of the very treaty involved in this litigation. Third, Congress deliberately limited the distribution under to the Cherokee and Absentee because of substantial problems it apprehended might attend a wider distribution. H. R. 5200, the bill originally introduced to distribute the funds, had contained a "catchall" clause authorizing distribution "to include the names of all *88 persons born on or prior to and living on the date of this Act who are lineal descendants of members of the Delaware Tribe as it existed in 18"[18] This catchall would have been analogous to a clause in a 1968 statute distributing funds to compensate the Delaware Tribe for the United States' inadequate payment to them when they were moved off their Indiana lands in 1818.[19] Under the 1968 catchall clause, all lineal descendants of the tribe as it existed in 1818 were permitted to share in the distribution, 25 U.S. C. 1181 (d), and about 300 Kansas were thereby allowed to participate in the distribution of the award redressing the 1818 wrong. The omission of the catchall provision from as finally enacted, followed legislative hearings at which the Cherokee and Absentee testified. At these hearings they directed Congress' attention to problems that had arisen when Munsee Indians, in addition to the Kansas had claimed eligibility under the catchall provision of the 1968 statute.[20] Because of a dispute over the eligibility of the Munsees to participate under the catchall clause, there had been inordinate delays in the distribution of the funds. Indeed, as late as 1972 many of the Munsees' claims *89 were still unresolved, and distribution under the 1968 statute was virtually paralyzed. Hearings on H. R. 5200 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 12, 22, 59, 79, 97, 105-106, 113 (unpublished). We recognize, as did the District Court, that Congress omitted the catchall provision from the present statute in order to avoid a repetition of the problems with the Munsees, and that Congress was not "made aware that the limitation of distribution to [the Cherokee and Absentee ] would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas do."[21] But we do not conclude from Congress' ignorance of the effect of the elimination of the catchall on the Kansas that the statute is therefore irrational. Congress chose to limit distribution of the award to the Cherokee and the Absentee in whose names the ' claims had been prosecuted before the Indian Claims Commission, and whom the Commission had found to represent the interests of all the Regardless of Congress' knowledge of the effect of this limitation on the Kansas we cannot say that the congressional choice, though predicated upon the Munsee experience under the 1968 statute, does not rationally support its decision to avoid undue delay, administrative difficulty, and potentially unmeritorious claims by distributing the award only to the Cherokee and Absentee[22] *90 IV Our conclusion that the exclusion of the Kansas from distribution under does not offend the Due Process Clause of the Fifth Amendment of course does not preclude Congress from revising the distribution scheme to include the Kansas The distribution authorized by has not yet occurred, and Congress has the power to revise its original allocation. United -83. Reversed. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the result. I join Parts I and II of the Court's opinion, but otherwise I concur only in the result. For me, the reversal of the District Court's judgment is not a result that is so inevitable and so easily and smoothly reached as a reading of Part III of the Court's opinion makes it appear. The Court's justifications for exclusion of the Kansas are not very persuasive. The first— favoritism toward tribal Indians—is undermined by the fact that Absentee who are not members of that tribe nevertheless are entitled to participate. Ante, at 82 n. 14. The second—exclusion from a prior distribution—is troublesome because it is difficult for me to see how perceived prior unfair treatment buttresses further unfairness. And I wonder about the statement, ante, at 87, that Congress "has historically *91 distinguished" the Kansas from the Cherokee in distributing tribal awards, when in fact both participated in the 1968 allocation that Congress authorized for the The third justification—administrative convenience in eliminating the catchall clause— may have some weight. But, as the opinion acknowledges, ante, at 88-89, there was no problem with the Kansas in the distribution of the 1968 award; the administrative difficulty was only with the Munsees. Nevertheless, having said all this, I am not persuaded that the Court errs in its conclusion. For me, the case is one of that rare type in which the argument on each side is not at all strong. With the litigation in this lukewarm posture, I conclude that we must acknowledge that there necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Congress must have a large measure of flexibility in allocating Indian awards, and what it has done here is not beyond the constitutional pale. MR.

Justice Marshall

concurring

Consolidated Edison Co. v. Public Serv. Comm'n

https://www.courtlistener.com/opinion/110311/consolidated-edison-co-v-public-serv-commn/

https://www.courtlistener.com/api/rest/v3/clusters/110311/

1979-126

I join the Court's opinion. I write separately to emphasize that our decision today in no way address the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U.S. 380, 397 (1974); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249 (1972). MR. JUSTICE STEVENS, concurring in the judgment. Any student of history who has been reprimanded for talking about the World Series during a class discussion of the *545 First Amendment knows that it is incorrect to state that a "time, place, or manner restriction may not be based upon either the content or subject matter of speech." Ante, at 536. And every lawyer who has read our Rules,[1] or our case upholding various restrictions on speech with specific reference to subject matter[2] must recognize the hyperbola in the dictum: "But, above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95, quoted in part, ante, at 537. Indeed, if that were the law, there would be no need for the Court's detailed rejection of the justifications put forward by the State for the restriction involved in this case. See ante, Part III-C. There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant's lawyer precedes his *546 adversary solely because he seeks reversal of a judgment.[3] As is true of many other aspects of liberty, some forms of orderly regulation actually promote freedom more than would a state of total anarchy.[4] Instead of trying to justify our conclusion by reasoning from honeycombed premises, I prefer to identify the basis of decision in more simple terms. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 65-66. A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a "law . . . abridging the freedom of speech, or of the press."[5] A regulation that denies one group of persons the right to address a selected audience on "controversial issues of public policy" is plainly such a regulation. The only justification for the regulation relied on by the New York Court of Appeals is that the utilities' bill inserts may be "offensive" to some of their customers.[6] But a communication *547 may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive—perhaps because it is too loud[7] or too ugly in a particular setting.[8] Other *548 speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression. Since the Public Service Commission has candidly put forward this impermissible justification for its censorial regulation, it plainly violates the First Amendment.[9] Accordingly, I concur in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR.

I join the Court's opinion. I write separately to emphasize that our decision today in no way address the question whether the Commission may exclude the costs of bill inserts from the rate base, nor does it intimate any view on the appropriateness of any allocation of such costs the Commission might choose to make. Ante, at 543. The Commission did not rely on the argument that the use of bill inserts required ratepayers to subsidize the dissemination of management's view in issuing its order, and we therefore are precluded from sustaining the order on that ground. Cf. ; ; MR. JUSTICE STEVENS, concurring in the judgment. Any student of history who has been reprimanded for talking about the World Series during a class discussion of the *545 First Amendment knows that it is incorrect to state that a "time, place, or manner restriction may not be based upon either the content or subject matter of speech." Ante, at 536. And every lawyer who has read our Rules,[1] or our case upholding various restrictions on speech with specific reference to subject matter[2] must recognize the hyperbola in the dictum: "But, above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Police Department of quoted in part, ante, at 537. Indeed, if that were the law, there would be no need for the Court's detailed rejection of the justifications put forward by the State for the restriction involved in this case. See ante, Part III-C. There are, in fact, many situations in which the subject matter, or, indeed, even the point of view of the speaker, may provide a justification for a time, place, and manner regulation. Perhaps the most obvious example is the regulation of oral argument in this Court; the appellant's lawyer precedes his *546 adversary solely because he seeks reversal of a judgment.[3] As is true of many other aspects of liberty, some forms of orderly regulation actually promote freedom more than would a state of total anarchy.[4] Instead of trying to justify our conclusion by reasoning from honeycombed premises, I prefer to identify the basis of decision in more simple terms. See A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a "law abridging the freedom of speech, or of the press."[5] A regulation that denies one group of persons the right to address a selected audience on "controversial issues of public policy" is plainly such a regulation. The only justification for the regulation relied on by the New York Court of Appeals is that the utilities' bill inserts may be "offensive" to some of their customers.[6] But a communication *547 may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive—perhaps because it is too loud[7] or too ugly in a particular setting.[8] Other *548 speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message. The fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression. Since the Public Service Commission has candidly put forward this impermissible justification for its censorial regulation, it plainly violates the First Amendment.[9] Accordingly, I concur in the judgment of the Court. MR. JUSTICE BLACKMUN, with whom MR.

Justice Scalia

dissenting

McKoy v. North Carolina

https://www.courtlistener.com/opinion/112388/mckoy-v-north-carolina/

https://www.courtlistener.com/api/rest/v3/clusters/112388/

1989-045

Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent. I Under North Carolina's capital sentencing scheme, once a defendant is found guilty of capital murder, a separate sentencing hearing is held at which the State is permitted to introduce evidence of aggravating circumstances, and the defendant evidence of mitigating circumstances. Specific aggravating and mitigating circumstances are defined by statute, but the defendant is permitted to put forward any other mitigating circumstance he wishes. The State must prove the existence of the specified aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating factors by a preponderance of the evidence. For any aggravating or mitigating circumstance to be given operative effect, it must be found unanimously by the jury. Absent unanimity, the proponent of the circumstance has failed to meet his burden of persuasion, and the circumstance will be considered not proved. In this case, the jury was given a special verdict form on which it was asked to answer four questions. First, whether it unanimously found beyond a reasonable doubt one or more specified statutory aggravating circumstances. The jury answered "Yes" with respect to two aggravating circumstances. Second, whether it unanimously found by a preponderance *458 of the evidence any statutory or nonstatutory mitigating circumstances. The jury answered "Yes" with respect to one statutory, and one nonstatutory, mitigating circumstance. Third, whether it unanimously found beyond a reasonable doubt that the mitigating circumstances it found were insufficient to outweigh the aggravating circumstances it found. The jury answered "Yes." Fourth, whether it unanimously found beyond a reasonable doubt that the aggravating circumstances it found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances it found. The jury answered "Yes." I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. See Zant v. Stephens, 462 U.S. 862, 877-879 (1983). On the other hand, by permitting the jury to consider evidence of, and find, any mitigating circumstance offered by the defendant, North Carolina has ensured that the jury will "be able to consider and give effect to that evidence in imposing sentence." Penry v. Lynaugh, 492 U.S. 302, 319 (1989). By requiring both aggravating circumstances to be found unanimously (beyond a reasonable doubt) and mitigating circumstances to be found unanimously (by only a preponderance of the evidence), North Carolina has "reduc[ed] the likelihood that [the jury] will impose a sentence that fairly can be called capricious or arbitrary." Gregg v. Georgia, 428 U.S. 153, 194-195 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Finally, by requiring the jury unanimously to find beyond a reasonable doubt not only that the aggravating circumstances outweigh the mitigating circumstances, but also that they are sufficiently substantial in light of the mitigating circumstances to justify the death penalty. North Carolina has *459 provided even an extra measure of assurance that death will not be lightly or mechanically imposed. II Before discussing the constitutional issue petitioner raises, I wish to address briefly the Court's assertion that we have already addressed and resolved this very issue in the past — that "our decision [in Mills] clearly governs this case." Ante, at 439. Although there is language in Mills v. Maryland, 486 U.S. 367 (1988), suggesting that a unanimity requirement would contravene this Court's decisions in Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), that issue plainly was not presented in Mills, and can therefore not have been decided. The Court's opinion in Mills begins by recounting that the Maryland Court of Appeals "did not dispute that if the statute and [verdict] form were read as petitioner suggested [i. e., to require mitigating factors to be found unanimously], jurors would be improperly prevented from giving due consideration to mitigating evidence." Mills, supra, at 372 (emphasis in original). The State itself made the same concession in its brief before this Court. ("Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence." Brief for Respondent in Mills v. Maryland, O. T. 1987, No. 87-5367, p. 19.)[1]*460 Accordingly, no controversy regarding the question that the Court today holds to have been decided by Mills was even before the Court — for the very simple reason that no statute *461 raising that question was before the Court. The Maryland court had adopted what it regarded as a saving construction of the statute (i. e., permitting a single juror's view to preclude rejection of a mitigating circumstance) and had said that the verdict form should be understood in that fashion. Before this Court, "[t]he critical question," and the only question disputed by the parties, was "whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case." Mills, 486 U. S., at 375-376.[2] On the answer to that question, the Court was divided. Five Justices found a substantial risk that the jury would have understood its instructions *462 as requiring it to reject all mitigating circumstances that it failed to find unanimously, and (as the State understood would be the necessary consequence of such a finding) vacated the judgment and remanded for further proceedings. Id., at 381-384. The four dissenting Justices thought the risk that a reasonable jury would have misunderstood the instructions was negligible, and thus would have affirmed. Id., at 391-393 (REHNQUIST, C. J., dissenting). The Court's characterization of Mills as "holding that the instructions, if [interpreted to require unanimity], were unconstitutional," ante, at 444, n. 8, and "strik[ing] down the Maryland scheme," ante, at 439, is pure revisionism. No Maryland scheme existed except the one authoritatively described by the Maryland Court of Appeals, see Mullaney v. Wilbur, 421 U.S. 684, 690-691 (1975) — which did not require a unanimous finding of mitigation for the defendant to receive a life sentence. To be sure, Mills contains language suggesting that a unanimity requirement would contravene Lockett and Eddings. See Mills, 486 U. S., at 374-375. But, under the circumstances, these suggestions were plainly dicta. Any doubt is resolved by JUSTICE WHITE'S separate concurrence, which states in its entirety: "The issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court's opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court's opinion." Id., at 389-390.[3] *463 Because JUSTICE WHITE provided the fifth vote to remand in Mills, it is impossible to regard Mills as resolving an issue he did not believe to have been before the Court. III The constitutional issue conceded in Mills is both presented and contested in the present case. North Carolina's capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors "from giving effect to evidence that they believe calls for a sentence less than death." Ante, at 439 (citing Eddings, 455 U. S., at 110, and Lockett, 438 U. S., at 604) (internal quotations omitted). This is so because each juror's answers to the ultimately dispositive Issues Three and Four can take account of only those mitigating circumstances found by the jury unanimously under Issue Two. Thus, any juror who concludes that the defendant has proved additional mitigating circumstances is precluded by his colleagues' disagreement from giving that conclusion effect. The Court several times refers to the prospect that one " `holdout' juror" will prevent the other 11 from reaching the decision they wish, ante, at 438, but the reader should not be misled: The constitutional principle appealed to is not majority rule but just the opposite. According to the Court, North Carolina's system in which one juror can prevent the others from giving effect to a mitigating circumstance is invalid only because the Constitution requires, in the context *464 of the North Carolina statute, a system in which one juror can prevent the others from denying effect to a mitigating circumstance. The " `holdout' juror" scenario provides attractive atmosphere, but the alleged constitutional principle upon which the decision rests is that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death," ante, at 442 (emphasis added), and "may not be foreclosed by one or more jurors' failure," ante, at 443 (emphasis added), to find that those mitigating facts existed, or that those existing facts were mitigating. Such a scheme, under which (at least where the statute requires the jury's recommendation of death to be unanimous) a single juror's finding regarding the existence of mitigation must control, is asserted to be demanded by "the principle established in Lockett v. Ohio, 438 U.S. 586 (1978), that a sentencer may not be precluded from giving effect to all mitigating evidence." Ante, at 438. With respect, "the principle established in Lockett" does not remotely support that conclusion. In Lockett, the Court vacated a death sentence imposed under a statute that limited the sentencing judge's consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S., at 604 (opinion of Burger, C. J.) (emphasis omitted; footnotes omitted). Similarly, in Eddings, also relied upon by the Court, we vacated a death sentence because the sentencing judge refused to consider evidence proffered by the defendant of his unhappy upbringing. We reasoned: "Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse *465 to consider, as a matter of law, any relevant mitigating evidence." 455 U.S., at 113-114 (emphasis in original). Accord, Penry v. Lynaugh, 492 U. S., at 328 (failure to instruct Texas jury that it could consider and give effect to mitigating evidence beyond the scope of three statutory special issues inconsistent with Lockett and Eddings); Hitchcock v. Dugger, 481 U.S. 393 (1987) (trial judge's belief that Florida law prohibited consideration of nonstatutory mitigating circumstances and corresponding instruction to the jury contravened Lockett); Skipper v. South Carolina, 476 U.S. 1 (1986) (trial judge's failure to permit jury to consider evidence of defendant's good behavior in prison inconsistent with Lockett and Eddings). The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant mitigating circumstance proffered by the defendant. See Penry, supra, at 319 ("The sentencer must . . . be able to consider and give effect to [mitigating] evidence in imposing sentence") (emphasis added); Hitchcock, supra, at 394 ("[T]he sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence") (internal quotations omitted; citations omitted; emphasis added); Eddings, supra, at 5 (mitigating "evidence may not be excluded from the sentencer's consideration") (emphasis added); Eddings, supra, at 114 ("[T]he sentencer [may not] refuse to consider . . . any relevant mitigating evidence") (emphasis added); Lockett, supra, at 604 ("Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering" mitigating evidence) (emphasis added; footnote omitted). The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances. What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so — *466 viz., only unanimously. As the Court observes today, that is a crucial distinction. "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle v. Parks, post, at 490 (emphasis added). In holding that a rule invalidating an antisympathy instruction would be a new rule under Teague v. Lane, 489 U.S. 288 (1989), we concluded that Lockett and Eddings "do not speak directly, if at all, to" "how [the jury] must consider the mitigating evidence," as opposed to "what mitigating evidence the jury must be permitted to consider in making its sentencing decision." Saffle, post, at 490. Accord, Franklin v. Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion) ("[W]e have never suggested that jury consideration of mitigating evidence must be undirected or unfocused"). In short, Lockett and Eddings are quite simply irrelevant to the question before us, and cannot be pressed into service by describing them as establishing that "a sentencer [by which the reader is invited to understand an individual member of the jury] may not be precluded from giving effect to all mitigating evidence." Ante, at 438 (emphasis added). IV Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compelling — for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because *467 two jurors were wearing green shirts, it would be impossible to say anything against the claim except that there is nothing to be said for it — neither in text, tradition, nor jurisprudence. That is the point I have already made here, and that alone suffices. With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court's result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant — for example, as a condition to establishing the defense of self-defense in a capital murder case, see Martin v. Ohio, 480 U.S. 228 (1987); Ohio Rev. Code Ann. §§ 2903.01, 2929.02 (1987); Ohio Rule Crim. Proc. 31(A), as a condition to establishing the defense of extreme emotional disturbance in a second-degree murder case, see Patterson v. New York, 432 U.S. 197 (1977); N. Y. Crim. Proc. Law § 310.80 (McKinney 1971), and as a condition to establishing the defense of insanity in a second-degree murder case, see Rivera v. Delaware, 429 U.S. 877 (1976); Del. Super. Ct. Crim. Rule 31(a), Del. Code Ann., vol. 17, p. 227 (1975).[4] *468 Of course the Court's holding today — and its underlying thesis that each individual juror must be empowered to "give effect" to his own view — invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating factor, but a requirement of any number of jurors more than one. Thus it is also in tension with Leland v. Oregon, 343 U.S. 790 (1952), which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See Apodaca v. Oregon, 406 U.S. 404 (1972) (upholding state statute providing for conviction by 10-to-2 vote). We have, to be sure, found that a criminal verdict by less than all of a six-person jury is unconstitutional — not, however, because of any inherent vice in nonunanimity, but because a 5-to-1 verdict, no less than a 5-to-0 verdict, see Ballew v. Georgia, 435 U.S. 223 (1978), "presents a . . . threat to preservation of the substance of the jury trial guarantee." Burch v. Louisiana, 441 U.S. 130, 138 (1979). The Court discusses briefly one of the above cases (Patterson), in which we said that if a State "chooses to recognize a factor that mitigates the degree of criminality or punishment,. . . the State may assure itself that the fact has been established with reasonable certainty," 432 U.S., at 209. It distinguishes that case, and presumably would distinguish the rest I have cited, as follows: "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." Ante, at 442. But surely the Constitution also requires States to allow consideration of all evidence bearing *469 upon the substantive criminal offense and consideration of all evidence bearing upon affirmative defenses. If, in those contexts, it is not regarded as a "barrier" to such consideration to require unanimity before any single juror's evaluation of the evidence can be "given effect" to the defendant's advantage, I do not understand why a comparable requirement constitutes a "barrier" to consideration of mitigation. Or why, in the latter context, assuring "reasonable certainty" is no longer a legitimate objective. Likewise incompatible with the Court's theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance' and that `make rationally reviewable the process for imposing a sentence of death.' " Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (footnotes omitted). There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement. Until today, I would have thought that North Carolina's scheme was a model of guided discretion. The requirement that the jury determine four specific issues operates like a special verdict — a device long recognized as enhancing the reliability and rationality of jury determinations. See, e. g., Sunderland, Verdicts, General and Special, 29 Yale L. J. 253, 261 (1920). Moreover, by enabling the reviewing court to examine the specific findings underlying the verdict it facilitates appellate review, which we have described as "an important additional safeguard against arbitrariness and caprice." Gregg v. Georgia, 428 U. S., at 198 (opinion of Stewart, Powell, and STEVENS, JJ.). "Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or *470 in a freakish manner." Id., at 195. Accord, Zant v. Stephens, 462 U. S., at 890; Proffitt v. Florida, 428 U.S. 242, 253 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court's own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. Ante, at 439-440. A jury, of course, is not a collection of individuals who are asked separately about their independent views, but a body designed to deliberate and decide collectively. See Williams v. Florida, 399 U.S. 78, 100 (1970) (Sixth Amendment requires a jury "large enough to promote group deliberation"); Ballew v. Georgia, 435 U.S. 223 (1978) (five-person jury too small); id., at 232-234 (opinion of BLACKMUN, J.) (small juries impede group deliberation). But after today's decision, in the hypothetical the Court has posed, it will be quite impossible for North Carolina sentencing juries to "deliberate" on the dispositive questions (Issues Three and Four — whether the aggravating circumstances outweigh the mitigating circumstances, and whether in light of the mitigating circumstances the aggravating circumstances justify death), because no two jurors agree on the identity of the "mitigating circumstances." Each juror must presumably decide in splendid isolation, on the basis of his uniquely determined mitigating circumstance, whether death should be imposed. What was supposed to be jury trial has degenerated into a poll. It seems to me inconceivable that such a system should be — not just tolerated under the Constitution — but constitutionally prescribed.[5] *471 In sum, the constitutional prohibition asserted by the petitioner was not decided in Mills and is not supported by Lockett and Eddings. Since nothing else is adduced to support it, there is no basis for believing that it exists. It is, moreover, contrary to the constitutional principles governing jury trial in other contexts, contrary to the principle of guided discretion that launched our modern incursion into the field of capital sentencing, and destructive of sound jury deliberation. When we abandon text and tradition, and in addition do not restrict prior cases to their holdings, knowing and observing the law of the land becomes impossible. State officials sworn to uphold the Constitution we expound rush to comply with one of our newly designed precepts, only to be told that by complying they have violated another one that points in the opposite direction. Compare Furman v. Georgia, 408 U.S. 238 (1972) (invalidating discretionary death penalty), with Woodson v. North Carolina, 428 U.S. 280 (1976) (invalidating mandatory death penalty enacted in light of Furman). I dissent from today's decision, and from the unpredictable jurisprudence of capital sentencing that it represents.

Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent. I Under North Carolina's capital sentencing scheme, once a defendant is found guilty of capital murder, a separate sentencing hearing is held at which the State is permitted to introduce evidence of aggravating circumstances, and the defendant evidence of mitigating circumstances. Specific aggravating and mitigating circumstances are defined by statute, but the defendant is permitted to put forward any other mitigating circumstance he wishes. The State must prove the existence of the specified aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating factors by a preponderance of the evidence. For any aggravating or mitigating circumstance to be given operative effect, it must be found unanimously by the jury. Absent unanimity, the proponent of the circumstance has failed to meet his burden of persuasion, and the circumstance will be considered not proved. In this case, the jury was given a special verdict form on which it was asked to answer four questions. First, whether it unanimously found beyond a reasonable doubt one or more specified statutory aggravating circumstances. The jury answered "Yes" with respect to two aggravating circumstances. Second, whether it unanimously found by a preponderance *458 of the evidence any statutory or nonstatutory mitigating circumstances. The jury answered "Yes" with respect to one statutory, and one nonstatutory, mitigating circumstance. Third, whether it unanimously found beyond a reasonable doubt that the mitigating circumstances it found were insufficient to outweigh the aggravating circumstances it found. The jury answered "Yes." Fourth, whether it unanimously found beyond a reasonable doubt that the aggravating circumstances it found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances it found. The jury answered "Yes." I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. See On the other hand, by permitting the jury to consider evidence of, and find, any mitigating circumstance offered by the defendant, North Carolina has ensured that the jury will "be able to consider and give effect to that evidence in imposing sentence." By requiring both aggravating circumstances to be found unanimously (beyond a reasonable doubt) and mitigating circumstances to be found unanimously (by only a preponderance of the evidence), North Carolina has "reduc[ed] the likelihood that [the jury] will impose a sentence that fairly can be called capricious or arbitrary." Finally, by requiring the jury unanimously to find beyond a reasonable doubt not only that the aggravating circumstances outweigh the mitigating circumstances, but also that they are sufficiently substantial in light of the mitigating circumstances to justify the death penalty. North Carolina has *459 provided even an extra measure of assurance that death will not be lightly or mechanically imposed. II Before discussing the constitutional issue petitioner raises, I wish to address briefly the Court's assertion that we have already addressed and resolved this very issue in the past — that "our decision [in ] clearly governs this case." Ante, at 439. Although there is language in suggesting that a unanimity requirement would contravene this Court's decisions in and that issue plainly was not presented in and can therefore not have been decided. The Court's opinion in begins by recounting that the Maryland Court of Appeals "did not dispute that if the statute and [verdict] form were read as petitioner suggested [i. e., to require mitigating factors to be found unanimously], jurors would be improperly prevented from giving due consideration to mitigating evidence." The State itself made the same concession in its brief before this Court. ("Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence." Brief for Respondent in O. T. 1987, No. 87-5367, p. 19.)[1]*460 Accordingly, no controversy regarding the question that the Court today holds to have been decided by was even before the Court — for the very simple reason that no statute *461 raising that question was before the Court. The Maryland court had adopted what it regarded as a saving construction of the statute (i. e., permitting a single juror's view to preclude rejection of a mitigating circumstance) and had said that the verdict form should be understood in that fashion. Before this Court, "[t]he critical question," and the only question disputed by the parties, was "whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case." -376.[2] On the answer to that question, the Court was divided. Five Justices found a substantial risk that the jury would have understood its instructions *462 as requiring it to reject all mitigating circumstances that it failed to find unanimously, and (as the State understood would be the necessary consequence of such a finding) vacated the judgment and remanded for further proceedings. The four dissenting Justices thought the risk that a reasonable jury would have misunderstood the instructions was negligible, and thus would have affirmed. The Court's characterization of as "holding that the instructions, if [interpreted to require unanimity], were unconstitutional," ante, at 444, n. 8, and "strik[ing] down the Maryland scheme," ante, at 439, is pure revisionism. No Maryland scheme existed except the one authoritatively described by the Maryland Court of Appeals, see — which did not require a unanimous finding of mitigation for the defendant to receive a life sentence. To be sure, contains language suggesting that a unanimity requirement would contravene and See -375. But, under the circumstances, these suggestions were plainly dicta. Any doubt is resolved by JUSTICE WHITE'S separate concurrence, which states in its entirety: "The issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court's opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court's opinion."[3] *463 Because JUSTICE WHITE provided the fifth vote to remand in it is impossible to regard as resolving an issue he did not believe to have been before the Court. III The constitutional issue conceded in is both presented and contested in the present case. North Carolina's capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors "from giving effect to evidence that they believe calls for a sentence less than death." Ante, at 439 (citing and ) (internal quotations omitted). This is so because each juror's answers to the ultimately dispositive Issues Three and Four can take account of only those mitigating circumstances found by the jury unanimously under Issue Two. Thus, any juror who concludes that the defendant has proved additional mitigating circumstances is precluded by his colleagues' disagreement from giving that conclusion effect. The Court several times refers to the prospect that one " `holdout' juror" will prevent the other 11 from reaching the decision they wish, ante, at 438, but the reader should not be misled: The constitutional principle appealed to is not majority rule but just the opposite. According to the Court, North Carolina's system in which one juror can prevent the others from giving effect to a mitigating circumstance is invalid only because the Constitution requires, in the context *464 of the North Carolina statute, a system in which one juror can prevent the others from denying effect to a mitigating circumstance. The " `holdout' juror" scenario provides attractive atmosphere, but the alleged constitutional principle upon which the decision rests is that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death," ante, at 442 (emphasis added), and "may not be foreclosed by one or more jurors' failure," ante, at 443 (emphasis added), to find that those mitigating facts existed, or that those existing facts were mitigating. Such a scheme, under which (at least where the statute requires the jury's recommendation of death to be unanimous) a single juror's finding regarding the existence of mitigation must control, is asserted to be demanded by "the principle established in that a sentencer may not be precluded from giving effect to all mitigating evidence." Ante, at 438. With respect, "the principle established in " does not remotely support that conclusion. In the Court vacated a death sentence imposed under a statute that limited the sentencing judge's consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (emphasis omitted; footnotes omitted). Similarly, in also relied upon by the Court, we vacated a death sentence because the sentencing judge refused to consider evidence proffered by the defendant of his unhappy upbringing. We reasoned: "Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse *465 to consider, as a matter of law, any relevant mitigating evidence." -114 Accord, (failure to instruct Texas jury that it could consider and give effect to mitigating evidence beyond the scope of three statutory special issues inconsistent with and ); (trial judge's belief that Florida law prohibited consideration of nonstatutory mitigating circumstances and corresponding instruction to the jury contravened ); (trial judge's failure to permit jury to consider evidence of defendant's good behavior in prison inconsistent with and ). The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant mitigating circumstance proffered by the defendant. See at (emphasis added); (internal quotations omitted; citations omitted; emphasis added); (emphasis added); (emphasis added); (emphasis added; footnote omitted). The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances. What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so — *466 viz., only unanimously. As the Court observes today, that is a crucial distinction. "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle v. Parks, post, at 490 (emphasis added). In holding that a rule invalidating an antisympathy instruction would be a new rule under we concluded that and "do not speak directly, if at all, to" "how [the jury] must consider the mitigating evidence," as opposed to "what mitigating evidence the jury must be permitted to consider in making its sentencing decision." Saffle, post, at 490. Accord, Franklin v. ("[W]e have never suggested that jury consideration of mitigating evidence must be undirected or unfocused"). In short, and are quite simply irrelevant to the question before us, and cannot be pressed into service by describing them as establishing that "a sentencer [by which the reader is invited to understand an individual member of the jury] may not be precluded from giving effect to all mitigating evidence." Ante, at 438 (emphasis added). IV Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compelling — for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because *467 two jurors were wearing green shirts, it would be impossible to say anything against the claim except that there is nothing to be said for it — neither in text, tradition, nor jurisprudence. That is the point I have already made here, and that alone suffices. With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court's result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant — for example, as a condition to establishing the defense of self-defense in a capital murder case, see ; 2929.02 ; Ohio Rule Crim. Proc. 31(A), as a condition to establishing the defense of extreme emotional disturbance in a second-degree murder case, see ; N. Y. Crim. Proc. Law 310.80 (McKinney 1971), and as a condition to establishing the defense of insanity in a second-degree murder case, see ; Del. Super. Ct. Crim. Rule 31(a), Del. Code Ann., vol. 17, p. 227[4] *468 Of course the Court's holding today — and its underlying thesis that each individual juror must be empowered to "give effect" to his own view — invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating factor, but a requirement of any number of jurors more than one. Thus it is also in tension with which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See We have, to be sure, found that a criminal verdict by less than all of a six-person jury is unconstitutional — not, however, because of any inherent vice in nonunanimity, but because a 5-to-1 verdict, no less than a 5-to-0 verdict, see "presents a threat to preservation of the substance of the jury trial guarantee." The Court discusses briefly one of the above cases (Patterson), in which we said that if a State "chooses to recognize a factor that mitigates the degree of criminality or punishment,. the State may assure itself that the fact has been established with reasonable certainty," It distinguishes that case, and presumably would distinguish the rest I have cited, as follows: "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." Ante, at 442. But surely the Constitution also requires States to allow consideration of all evidence bearing *469 upon the substantive criminal offense and consideration of all evidence bearing upon affirmative defenses. If, in those contexts, it is not regarded as a "barrier" to such consideration to require unanimity before any single juror's evaluation of the evidence can be "given effect" to the defendant's advantage, I do not understand why a comparable requirement constitutes a "barrier" to consideration of mitigation. Or why, in the latter context, assuring "reasonable certainty" is no longer a legitimate objective. Likewise incompatible with the Court's theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance' and that `make rationally reviewable the process for imposing a sentence of death.' " (footnotes omitted). There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement. Until today, I would have thought that North Carolina's scheme was a model of guided discretion. The requirement that the jury determine four specific issues operates like a special verdict — a device long recognized as enhancing the reliability and rationality of jury determinations. See, e. g., Sunderland, Verdicts, General and Special, 29 Yale L. J. 261 (1920). Moreover, by enabling the reviewing court to examine the specific findings underlying the verdict it facilitates appellate review, which we have described as "an important additional safeguard against arbitrariness and caprice." U. S., at 198 "Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or *470 in a freakish manner." Accord, ; U.S. 242, The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court's own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. Ante, at 439-440. A jury, of course, is not a collection of individuals who are asked separately about their independent views, but a body designed to deliberate and decide collectively. See ; ; (small juries impede group deliberation). But after today's decision, in the hypothetical the Court has posed, it will be quite impossible for North Carolina sentencing juries to "deliberate" on the dispositive questions (Issues Three and Four — whether the aggravating circumstances outweigh the mitigating circumstances, and whether in light of the mitigating circumstances the aggravating circumstances justify death), because no two jurors agree on the identity of the "mitigating circumstances." Each juror must presumably decide in splendid isolation, on the basis of his uniquely determined mitigating circumstance, whether death should be imposed. What was supposed to be jury trial has degenerated into a poll. It seems to me inconceivable that such a system should be — not just tolerated under the Constitution — but constitutionally prescribed.[5] *471 In sum, the constitutional prohibition asserted by the petitioner was not decided in and is not supported by and Since nothing else is adduced to support it, there is no basis for believing that it exists. It is, moreover, contrary to the constitutional principles governing jury trial in other contexts, contrary to the principle of guided discretion that launched our modern incursion into the field of capital sentencing, and destructive of sound jury deliberation. When we abandon text and tradition, and in addition do not restrict prior cases to their holdings, knowing and observing the law of the land becomes impossible. State officials sworn to uphold the Constitution we expound rush to comply with one of our newly designed precepts, only to be told that by complying they have violated another one that points in the opposite direction. Compare Furman v. with U.S. 280 I dissent from today's decision, and from the unpredictable jurisprudence of capital sentencing that it represents.

Justice Breyer

majority

Deck v. Missouri

https://www.courtlistener.com/opinion/142897/deck-v-missouri/

https://www.courtlistener.com/api/rest/v3/clusters/142897/

2004-049

We here consider whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is "justified by an essential state interest" — such as the interest in courtroom security — specific to the defendant on trial. Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986); see also Illinois v. Allen, 397 U.S. 337, 343-344 (1970). I In July 1996, petitioner Carman Deck robbed, shot, and killed an elderly couple. In 1998, the State of Missouri tried Deck for the murders and the robbery. At trial, state authorities required Deck to wear leg braces that apparently were not visible to the jury. App. 5; Tr. of Oral Arg. 21, 25, *625 29. Deck was convicted and sentenced to death. The State Supreme Court upheld Deck's conviction but set aside the sentence. 68 S.W.3d 418, 432 (2002) (en banc). The State then held a new sentencing proceeding. From the first day of the new proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. App. 58. Before the jury voir dire began, Deck's counsel objected to the shackles. The objection was overruled. Ibid.; see also id., at 41-55. During the voir dire, Deck's counsel renewed the objection. The objection was again overruled, the court stating that Deck "has been convicted and will remain in legirons and a belly chain." Id., at 58. After the voir dire, Deck's counsel once again objected, moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is . . . violent today." Id., at 58-59. The objection was again overruled, the court stating that his "being shackled takes any fear out of their minds." Id., at 59. The penalty phase then proceeded with Deck in shackles. Deck was again sentenced to death. 136 S.W.3d 481, 485 (Mo. 2004) (en banc). On appeal, Deck claimed that his shackling violated both Missouri law and the Federal Constitution. The Missouri Supreme Court rejected these claims, writing that there was "no record of the extent of the jury's awareness of the restraints"; there was no "claim that the restraints impeded" Deck "from participating in the proceedings"; and there was "evidence" of "a risk" that Deck "might flee in that he was a repeat offender" who may have "killed his two victims to avoid being returned to custody." Ibid. Thus, there was "sufficient evidence in the record to support the trial court's exercise of its discretion" to require shackles, and in any event Deck "has not demonstrated that the outcome of his trial was prejudiced. . . . Neither being viewed in shackles by the venire panel prior to trial, nor being viewed while restrained throughout the entire trial, alone, is proof of prejudice." *626 Ibid. The court rejected Deck's other claims of error and affirmed the sentence. We granted certiorari to review Deck's claim that his shackling violated the Federal Constitution. II We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need. This rule has deep roots in the common law. In the 18th century, Blackstone wrote that "it is laid down in our antient books, that, though under an indictment of the highest nature," a defendant "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 ("If felons come in judgement to answer, . . . they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"). Blackstone and other English authorities recognized that the rule did not apply at "the time of arraignment," or like proceedings before the judge. Blackstone, supra, at 317; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K. B. 1722). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) ("[B]eing put upon his trial, the Court immediately ordered [the defendant's] fetters to be knocked off"). American courts have traditionally followed Blackstone's "ancient" English rule, while making clear that "in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles *627 may be retained." 1 J. Bishop, New Criminal Procedure § 955, p. 573 (4th ed. 1895); see also id., at 572-573 ("[O]ne at the trial should have the unrestrained use of his reason, and all advantages, to clear his innocence. Our American courts adhere pretty closely to this doctrine" (internal quotation marks omitted)); State v. Roberts, 86 N. J. Super. 159, 163-165, 206 A.2d 200, 203 (App. Div. 1965); French v. State, 377 P.2d 501, 502-504 (Okla.Crim.App. 1962); Eaddy v. People, 115 Colo. 488, 490, 174 P.2d 717, 718 (1946) (en banc); State v. McKay, 63 Nev. 118, 153-158, 165 P.2d 389, 405-406 (1946); Blaine v. United States, 136 F.2d 284, 285 (CADC 1943) (per curiam); Blair v. Commonwealth, 171 Ky. 319, 327-329, 188 S.W. 390, 393 (App. 1916); Hauser v. People, 210 Ill. 253, 264-267, 71 N.E. 416, 421 (1904); Parker v. Territory, 5 Ariz. 283, 287, 52 P. 361, 363 (1898); State v. Williams, 18 Wash. 47, 48-50, 50 P. 580, 581 (1897); Rainey v. State, 20 Tex. App. 455, 472-473 (1886) (opinion of White, P. J.); State v. Smith, 11 Ore. 205, 8 P. 343 (1883); Poe v. State, 78 Tenn. 673, 674-678 (1882); State v. Kring, 64 Mo. 591, 592 (1877); People v. Harrington, 42 Cal. 165, 167 (1871); see also F. Wharton, Criminal Pleading and Practice § 540a, p. 369 (8th ed. 1880); 12 Cyclopedia of Law and Procedure 529 (1904). While these earlier courts disagreed about the degree of discretion to be afforded trial judges, see post, at 643-648 (THOMAS, J., dissenting), they settled virtually without exception on a basic rule embodying notions of fundamental fairness: Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. More recently, this Court has suggested that a version of this rule forms part of the Fifth and Fourteenth Amendments' due process guarantee. Thirty-five years ago, when considering the trial of an unusually obstreperous criminal defendant, the Court held that the Constitution sometimes permitted special measures, including physical restraints. Allen, 397 U. S., at 343-344. The Court wrote that "binding *628 and gagging might possibly be the fairest and most reasonable way to handle" such a defendant. Id., at 344. But the Court immediately added that "even to contemplate such a technique . . . arouses a feeling that no person should be tried while shackled and gagged except as a last resort." Ibid. Sixteen years later, the Court considered a special courtroom security arrangement that involved having uniformed security personnel sit in the first row of the courtroom's spectator section. The Court held that the Constitution allowed the arrangement, stating that the deployment of security personnel during trial is not "the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial." Holbrook, 475 U. S., at 568-569. See also Estelle v. Williams, 425 U.S. 501, 503, 505 (1976) (making a defendant appear in prison garb poses such a threat to the "fairness of the factfinding process" that it must be justified by an "essential state policy"). Lower courts have treated these statements as setting forth a constitutional standard that embodies Blackstone's rule. Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. See, e. g., Dyas v. Poole, 309 F.3d 586, 588-589 (CA9 2002) (per curiam); Harrell v. Israel, 672 F.2d 632, 635 (CA7 1982) (per curiam); State v. Herrick, 324 Mont. 76, 78-82, 101 P.3d 755, 757-759 (2004); Hill v. Commonwealth, 125 S.W.3d 221, 233-234 (Ky. 2004); State v. Turner, 143 Wash. 2d 715, 723-727, 23 P.3d 499, 504-505 (2001) (en banc); Myers v. State, 2000 OK CR 25, ¶ 19, 17 P.3d 1021, 1033; State v. Shoen, 598 N.W.2d 370, 374-377 (Minn. 1999); Lovell v. State, 347 Md. 623, 635-645, *629 702 A.2d 261, 268-272 (1997); People v. Jackson, 14 Cal. App. 4th 1818, 1822-1830, 18 Cal. Rptr. 2d 586, 588-594 (1993); Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992) (en banc); State v. Tweedy, 219 Conn. 489, 504-508, 594 A.2d 906, 914-915 (1991); State v. Crawford, 99 Idaho 87, 93-98, 577 P.2d 1135, 1141-1146 (1978); People v. Brown, 45 Ill. App. 3d 24, 26-28, 358 N.E.2d 1362, 1363-1364 (1977); State v. Tolley, 290 N. C. 349, 362-371, 226 S.E.2d 353, 365-369 (1976); see also 21A Am. Jur. 2d, Criminal Law §§ 1016, 1019 (1998); see generally Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U. L. J. 351 (1970-1971); ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp. 188-191 (3d ed. 1996). Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle. They have emphasized the importance of preserving trial court discretion (reversing only in cases of clear abuse), but they have applied the limits on that discretion described in Holbrook, Allen, and the early English cases. In light of this precedent, and of a lower court consensus disapproving routine shackling dating back to the 19th century, it is clear that this Court's prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements identify a basic element of the "due process of law" protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial. *630 III We here consider shackling not during the guilt phase of an ordinary criminal trial, but during the punishment phase of a capital case. And we must decide whether that change of circumstance makes a constitutional difference. To do so, we examine the reasons that motivate the guilt-phase constitutional rule and determine whether they apply with similar force in this context. A Judicial hostility to shackling may once primarily have reflected concern for the suffering — the "tortures" and "torments"—that "very painful" chains could cause. Krauskopf, supra, at 351, 353 (internal quotation marks omitted); see also Riggins v. Nevada, 504 U.S. 127, 154, n. 4 (1992) (THOMAS, J., dissenting) (citing English cases curbing the use of restraints). More recently, this Court's opinions have not stressed the need to prevent physical suffering (for not all modern physical restraints are painful). Instead they have emphasized the importance of giving effect to three fundamental legal principles. First, the criminal process presumes that the defendant is innocent until proved guilty. Coffin v. United States, 156 U.S. 432, 453 (1895) (presumption of innocence "lies at the foundation of the administration of our criminal law"). Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. Cf. Estelle, supra, at 503. It suggests to the jury that the justice system itself sees a "need to separate a defendant from the community at large." Holbrook, supra, at 569; cf. State v. Roberts, 86 N. J. Super., at 162, 206 A.2d, at 202 ("[A] defendant `ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach . . . unless there be some Danger of a Rescous [rescue] or Escape'" (quoting 2 W. Hawkins, Pleas *631 of the Crown, ch. 28, § 1, p. 308 (1716-1721) (section on arraignments))). Second, the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel. See, e. g., Amdt. 6; Gideon v. Wainwright, 372 U.S. 335, 340-341 (1963). The use of physical restraints diminishes that right. Shackles can interfere with the accused's "ability to communicate" with his lawyer. Allen, 397 U. S., at 344. Indeed, they can interfere with a defendant's ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf. Cf. Cranburne's Case, 13 How. St. Tr. 222 (K. B. 1696) ("Look you, keeper, you should take off the prisoners irons when they are at the bar, for they should stand at their ease when they are tried" (footnote omitted)); People v. Harrington, 42 Cal., at 168 (shackles "impos[e] physical burdens, pains, and restraints . . ., . . . ten[d] to confuse and embarrass" defendants' "mental faculties," and thereby tend "materially to abridge and prejudicially affect his constitutional rights"). Third, judges must seek to maintain a judicial process that is a dignified process. The courtroom's formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual's liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system's power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial "affront[s]" the "dignity and decorum of judicial proceedings that the judge is seeking to uphold." Allen, supra, at 344; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) ("[T]o have a man plead for his life" in shackles before *632 "a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present," undermines the "dignity of the Court"). There will be cases, of course, where these perils of shackling are unavoidable. See Allen, supra, at 344. We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations. We are mindful of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case. B The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the "`severity'" and "`finality'" of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)). Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue. Monge, supra, at 732 (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) *633 (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community — often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Cf. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury's perception of the character of the defendant. See Zant v. Stephens, 462 U.S. 862, 900 (1983) (REHNQUIST, J., concurring in judgment) (character and propensities of the defendant are part of a "unique, individualized judgment regarding the punishment that a particular person deserves"). And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations — considerations that are often unquantifiable and elusive — when it determines whether a defendant deserves death. In these ways, the use of shackles can be a "thumb [on] death's side of the scale." Sochor v. Florida, 504 U.S. 527, 532 (1992) (internal quotation marks omitted); see also Riggins, 504 U. S., at 142 (KENNEDY, J., concurring in judgment) (through control of a defendant's appearance, the State can exert a "powerful influence on the outcome of the trial"). Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial. *634 IV Missouri claims that the decision of its high court meets the Constitution's requirements in this case. It argues that the Missouri Supreme Court properly found: (1) that the record lacks evidence that the jury saw the restraints; (2) that the trial court acted within its discretion; and, in any event, (3) that the defendant suffered no prejudice. We find these arguments unconvincing. The first argument is inconsistent with the record in this case, which makes clear that the jury was aware of the shackles. See App. 58-59 (Deck's attorney stated on the record that "Mr. Deck [was] shackled in front of the jury" (emphasis added)); id., at 59 (trial court responded that "him being shackled takes any fear out of their minds"). The argument also overstates the Missouri Supreme Court's holding. The court said: "Trial counsel made no record of the extent of the jury's awareness of the restraints throughout the penalty phase, and Appellant does not claim that the restraints impeded him from participating in the proceedings." 136 S.W.3d, at 485 (emphasis added). This statement does not suggest that the jury was unaware of the restraints. Rather, it refers to the degree of the jury's awareness, and hence to the kinds of prejudice that might have occurred. The second argument — that the trial court acted within its discretion — founders on the record's failure to indicate that the trial judge saw the matter as one calling for discretion. The record contains no formal or informal findings. Cf. supra, at 632 (requiring a case-by-case determination). The judge did not refer to a risk of escape — a risk the State has raised in this Court, see Tr. of Oral Arg. 36-37 — or a threat to courtroom security. Rather, he gave as his reason for imposing the shackles the fact that Deck already "has been convicted." App. 58. While he also said that the shackles would "tak[e] any fear out of" the juror's "minds," he nowhere explained any special reason for fear. Id., at 59. Nor did he explain why, if shackles were necessary, he chose *635 not to provide for shackles that the jury could not see — apparently the arrangement used at trial. If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one. The third argument fails to take account of this Court's statement in Holbrook that shackling is "inherently prejudicial." 475 U.S., at 568. That statement is rooted in our belief that the practice will often have negative effects, but — like "the consequences of compelling a defendant to wear prison clothing" or of forcing him to stand trial while medicated — those effects "cannot be shown from a trial transcript." Riggins, supra, at 137. Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove "beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967). V For these reasons, the judgment of the Missouri Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

We here consider whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is "justified by an essential state interest" — such as the interest in courtroom security — specific to the defendant on trial. ; see also I In July 1996, petitioner Carman Deck robbed, shot, and killed an elderly couple. In 1998, the State of Missouri tried Deck for the murders and the robbery. At trial, state authorities required Deck to wear leg braces that apparently were not visible to the jury. App. 5; Tr. of Oral Arg. 21, 25, *625 29. Deck was convicted and sentenced to death. The State Supreme Court upheld Deck's conviction but set aside the sentence. The State then held a new sentencing proceeding. From the first day of the new proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. App. 58. Before the jury voir dire began, Deck's counsel objected to the shackles. The objection was overruled. ; see also During the voir dire, Deck's counsel renewed the objection. The objection was again overruled, the court stating that Deck "has been convicted and will remain in legirons and a belly chain." After the voir dire, Deck's counsel once again objected, moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is violent today." -59. The objection was again overruled, the court stating that his "being shackled takes any fear out of their minds." The penalty phase then proceeded with Deck in shackles. Deck was again sentenced to death. On appeal, Deck claimed that his shackling violated both Missouri law and the Federal Constitution. The Missouri Supreme Court rejected these claims, writing that there was "no record of the extent of the jury's awareness of the restraints"; there was no "claim that the restraints impeded" Deck "from participating in the proceedings"; and there was "evidence" of "a risk" that Deck "might flee in that he was a repeat offender" who may have "killed his two victims to avoid being returned to custody." Thus, there was "sufficient evidence in the record to support the trial court's exercise of its discretion" to require shackles, and in any event Deck "has not demonstrated that the outcome of his trial was prejudiced. Neither being viewed in shackles by the venire panel prior to trial, nor being viewed while restrained throughout the entire trial, alone, is proof of prejudice." *626 The court rejected Deck's other claims of error and affirmed the sentence. We granted certiorari to review Deck's claim that his shackling violated the Federal Constitution. II We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need. This rule has deep roots in the common law. In the 18th century, Blackstone wrote that "it is laid down in our antient books, that, though under an indictment of the highest nature," a defendant "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 ("If felons come in judgement to answer, they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"). Blackstone and other English authorities recognized that the rule did not apply at "the time of arraignment," or like proceedings before the judge. Blackstone, ; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K. B. 1). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) ("[B]eing put upon his trial, the Court immediately ordered [the defendant's] fetters to be knocked off"). American courts have traditionally followed Blackstone's "ancient" English rule, while making clear that "in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles *627 may be retained." 1 J. Bishop, New Criminal Procedure 955, p. 573 ; see also ; ; ; ; ; ; ; ; ; ; Rainey v. State, 20 Tex. App. 455, 472-473 (1886) (opinion of White, P. J.); ; ; ; ; see also F. Wharton, Criminal Pleading and Practice 540a, p. 369 (8th ed. 1880); 12 Cyclopedia of Law and Procedure 529 While these earlier courts disagreed about the degree of discretion to be afforded trial judges, see post, at 643-648 they settled virtually without exception on a basic rule embodying notions of fundamental fairness: Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. More recently, this Court has suggested that a version of this rule forms part of the Fifth and Fourteenth Amendments' due process guarantee. Thirty-five years ago, when considering the trial of an unusually obstreperous criminal defendant, the Court held that the Constitution sometimes permitted special measures, including physical restraints. 397 U. S., at The Court wrote that "binding *628 and gagging might possibly be the fairest and most reasonable way to handle" such a defendant. But the Court immediately added that "even to contemplate such a technique arouses a feeling that no person should be tried while shackled and gagged except as a last resort." Sixteen years later, the Court considered a special courtroom security arrangement that involved having uniformed security personnel sit in the first row of the courtroom's spectator section. The Court held that the Constitution allowed the arrangement, stating that the deployment of security personnel during trial is not "the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial." 475 U. S., at See also Lower courts have treated these statements as setting forth a constitutional standard that embodies Blackstone's rule. Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. See, e. g., ; ; ; ; ; ; -645, ; ; ; ; ; 1-1364 ; ; see also 21A Am. Jur. 2d, Criminal Law 1016, 1019 ; see generally Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U. L. J. 351 (1970-1971); ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp. 188-191 (3d ed. 1996). Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle. They have emphasized the importance of preserving trial court discretion (reversing only in cases of clear abuse), but they have applied the limits on that discretion described in and the early English cases. In light of this precedent, and of a lower court consensus disapproving routine shackling dating back to the 19th century, it is clear that this Court's prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements identify a basic element of the "due process of law" protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial. *630 III We here consider shackling not during the guilt phase of an ordinary criminal trial, but during the punishment phase of a capital case. And we must decide whether that change of circumstance makes a constitutional difference. To do so, we examine the reasons that motivate the guilt-phase constitutional rule and determine whether they apply with similar force in this context. A Judicial hostility to shackling may once primarily have reflected concern for the suffering — the "tortures" and "torments"—that "very painful" chains could cause. ; see also (citing English cases curbing the use of restraints). More recently, this Court's opinions have not stressed the need to prevent physical suffering (for not all modern physical restraints are painful). Instead they have emphasized the importance of giving effect to three fundamental legal principles. First, the criminal process presumes that the defendant is innocent until proved guilty. 156 U.S. Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. It suggests to the jury that the justice system itself sees a "need to separate a defendant from the community at large." ; cf. State v. Roberts, 86 N. J. Super., at ("[A] defendant `ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach unless there be some Danger of a Rescous [rescue] or Escape'" (quoting 2 W. Hawkins, Pleas *631 of the Crown, ch. 28, 1, p. 308 (1716-1721) (section on arraignments))). Second, the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel. See, e. g., Amdt. 6; The use of physical restraints diminishes that right. Shackles can interfere with the accused's "ability to communicate" with his lawyer. 397 U. S., Indeed, they can interfere with a defendant's ability to participate in his own defense, say, by freely choosing whether to take the witness stand on his own behalf. Cranburne's Case, 13 How. St. Tr. 222 (K. B. 1696) ("Look you, keeper, you should take off the prisoners irons when they are at the bar, for they should stand at their ease when they are tried" (footnote omitted)); Third, judges must seek to maintain a judicial process that is a dignified process. The courtroom's formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual's liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system's power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial "affront[s]" the "dignity and decorum of judicial proceedings that the judge is seeking to uphold." ; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) ("[T]o have a man plead for his life" in shackles before *632 "a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present," undermines the "dignity of the Court"). There will be cases, of course, where these perils of shackling are unavoidable. See We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations. We are mindful of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case. B The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the "`severity'" and "`finality'" of the sanction, is no less important than the decision about guilt. ). Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue. at *633 (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community — often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury's perception of the character of the defendant. See (character and propensities of the defendant are part of a "unique, individualized judgment regarding the punishment that a particular person deserves"). And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations — considerations that are often unquantifiable and elusive — when it determines whether a defendant deserves death. In these ways, the use of shackles can be a "thumb [on] death's side of the scale." ; see also (through control of a defendant's appearance, the State can exert a "powerful influence on the outcome of the trial"). Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial. *634 IV Missouri claims that the decision of its high court meets the Constitution's requirements in this case. It argues that the Missouri Supreme Court properly found: (1) that the record lacks evidence that the jury saw the restraints; (2) that the trial court acted within its discretion; and, in any event, (3) that the defendant suffered no prejudice. We find these arguments unconvincing. The first argument is inconsistent with the record in this case, which makes clear that the jury was aware of the shackles. See App. 58-59 (Deck's attorney stated on the record that "Mr. Deck [was] shackled in front of the jury" ); The argument also overstates the Missouri Supreme Court's holding. The court said: "Trial counsel made no record of the extent of the jury's awareness of the restraints throughout the penalty phase, and Appellant does not claim that the restraints impeded him from participating in the proceedings." 136 S.W.3d, at This statement does not suggest that the jury was unaware of the restraints. Rather, it refers to the degree of the jury's awareness, and hence to the kinds of prejudice that might have occurred. The second argument — that the trial court acted within its discretion — founders on the record's failure to indicate that the trial judge saw the matter as one calling for discretion. The record contains no formal or informal findings. The judge did not refer to a risk of escape — a risk the State has raised in this Court, see Tr. of Oral Arg. 36-37 — or a threat to courtroom security. Rather, he gave as his reason for imposing the shackles the fact that Deck already "has been convicted." App. 58. While he also said that the shackles would "tak[e] any fear out of" the juror's "minds," he nowhere explained any special reason for fear. Nor did he explain why, if shackles were necessary, he chose * not to provide for shackles that the jury could not see — apparently the arrangement used at trial. If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one. The third argument fails to take account of this Court's statement in that shackling is "inherently prejudicial." That statement is rooted in our belief that the practice will often have negative effects, but — like "the consequences of compelling a defendant to wear prison clothing" or of forcing him to stand trial while medicated — those effects "cannot be shown from a trial transcript." Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove "beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained." V For these reasons, the judgment of the Missouri Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice White

majority

Lego v. Twomey

https://www.courtlistener.com/opinion/108429/lego-v-twomey/

https://www.courtlistener.com/api/rest/v3/clusters/108429/

1971-039

In 1964 this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. Jackson v. Denno, 378 U.S. 368. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, *479 since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions.[1] We granted certiorari in this case to resolve the question. 401 U.S. 992 (1971). *480 Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial Lego sought to have the confession suppressed. He did not deny making it but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner's face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible.[2] At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the *481 police station. The trial judge instructed the jury as to the prosecution's burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence.[3] On direct appeal the Illinois Supreme Court affirmed the conviction. People v. Lego, 32 Ill. 2d 76, 203 N.E.2d 875 (1965). Four years later petitioner challenged his conviction by seeking a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence.[4] In the alternative petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. *482 After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F. Supp. 38 (1970).[5] The Court of Appeals for the Seventh Circuit affirmed.[6] I Petitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt as required by In re Winship, 397 U.S. 358 (1970), because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so we must return to Jackson v. Denno, 378 U.S. 368 (1964). In New York prior to Jackson, juries most often determined the voluntariness of confessions and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination and could exclude a confession, but only if it could not under any circumstances be deemed voluntary.[7] When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession *483 was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence. We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. "It is now axiomatic," we said, "that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401; Stroble v. California, 343 U.S. 181; Payne v. Arkansas, 356 U.S. 560. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession *484 and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra."[8] We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge.[9] Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof,[10] nor has it been since Jackson was decided.[11] We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily. We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability.[12] But our decision was not based in the *485 slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men. Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury's judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U.S. 534, 540-541 (1961).[13] The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has *486 been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness.[14] In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief. Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, 397 U.S. 358 (1970). Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution's burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Winship went no further than to confirm the fundamental right that protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., at 364. A high standard of proof is *487 necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. Id., at 363. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner's rights under Winship have not been violated.[15] II Even conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. Jackson v. Denno, supra, an offspring of Brown v. Mississippi, 297 U.S. 278 (1936), requires judicial rulings on voluntariness prior to admitting confessions. Miranda v. Arizona, 384 *488 U. S. 436 (1966), excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961), make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility. The argument is straightforward and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.[16] Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. Weeks v. United States, supra. The same is true of coerced confessions offered in either federal or state trials. Bram v. United States, 168 U.S. 532 (1897); Brown v. Mississippi, supra. But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence *489 before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence. To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.[17] III We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of Jackson v. Denno; it also ignores *490 that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, Duncan v. Louisiana, 391 U.S. 145 (1968), which made the Sixth Amendment right to trial by jury applicable to the States, did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim. The decision of the Court of Appeals is Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.

In 1964 this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, *479 since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions.[1] We granted certiorari in this case to resolve the question. *480 Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial Lego sought to have the confession suppressed. He did not deny making it but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner's face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible.[2] At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the *481 police station. The trial judge instructed the jury as to the prosecution's burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence.[3] On direct appeal the Illinois Supreme Court affirmed the conviction. Four years later petitioner challenged his conviction by seeking a writ of habeas corpus in the United District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence.[4] In the alternative petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. *482 After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him and denied relief on the merits. United ex rel.[5] The Court of Appeals for the Seventh Circuit affirmed.[6] I Petitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt as required by In re Winship, because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so we must return to In New York prior to Jackson, juries most often determined the voluntariness of confessions and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination and could exclude a confession, but only if it could not under any circumstances be deemed voluntary.[7] When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession *483 was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence. We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. "It is now axiomatic," we said, "that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. ; ; Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession *484 and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. "[8] We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge.[9] Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof,[10] nor has it been since Jackson was decided.[11] We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily. We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability.[12] But our decision was not based in the *485 slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men. Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury's judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles.[13] The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has *486 been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness.[14] In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief. Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution's burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Winship went no further than to confirm the fundamental right that protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." A high standard of proof is *487 necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner's rights under Winship have not been violated.[15] II Even conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. an offspring of requires judicial rulings on voluntariness prior to admitting confessions. excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. and make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility. The argument is straightforward and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt.[16] Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. The same is true of coerced confessions offered in either federal or state trials. Bram v. United ; But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence *489 before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence. To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.[17] III We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of ; it also ignores *490 that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, which made the Sixth Amendment right to trial by jury applicable to the did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim. The decision of the Court of Appeals is Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.

Justice White

majority

Doe v. McMillan

https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/

https://www.courtlistener.com/api/rest/v3/clusters/108802/

1972-129

This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564 (1959); Tenney v. Brandhove, 341 U.S. 367 (1951). By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of . . . the organization, *308 management, operation, and administration" of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to "report to the House as soon as practicable . . . the results of its investigation and study together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S. C. §§ 501 and 701. The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.[1] The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative *309 efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.[2] On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America. Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing *310 the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.[3] The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.[4] A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.[5] We granted certiorari, 408 U.S. 922. *311 I To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, 408 U.S. 606, 617 (1972), Art. I, § 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process." Id., at 616.[6] The Speech or Debate Clause has been read "broadly to effectuate its purposes," United States v. Johnson, 383 U.S. 169, 180 (1966); Gravel v. United States, supra, at 624, and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); United States v. Johnson, supra, at 179; Gravel v. United States, supra, at 624; Powell v. McCormack, 395 U.S. 486, 502 (1969); United States v. Brewster, 408 U.S. 501, 509, 512-513 (1972). Thus "voting by Members and committee reports are protected" and "a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, *312 may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the `sphere of legitimate legislative activity.' " Gravel v. United States, supra, at 624. Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were "legislative acts," Gravel v. United States, supra, at 618, and, as such, were immune from suit.[7] Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the "legislative sphere," Gravel v. United States, supra, at 624-625, even though their conduct, if performed in other than *313 legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id., at 625. As such, the acts were protected by the Speech or Debate Clause. Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. "[T]he Clause has not been extended beyond the legislative sphere," and "[l]egislative acts are not all-encompassing." Id., at 624-625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct "though generally done, is not protected legislative activity." Id., at 625; United States v. Johnson, supra. Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the *314 hearing was unquestionably part of the legislative process. Gravel v. United States, supra. The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect "publications to the public through the facilities of Congress." Public dissemination, it is argued, will serve "the important legislative function of informing the public concerning matters pending before Congress . . . ." Brief for Legislative Respondents 27. We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislative or other matters before the House. Gravel v. United States, supra, at 625. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.[8] The reason is that republishing a libel under such circumstances *315 is not an essential part of the legislative process and is not part of that deliberative process "by which Members participate in committee and House proceedings." Ibid. By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity. Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, Kilbourn v. Thompson, supra, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in Kilbourn v. Thompson when, at the direction of the House, he made an arrest that the courts subsequently found to be "without authority." 103 U.S., at 200.[9] See also Powell v. McCormack, 395 U. S., at 504; cf. Dombrowski v. Eastland, 387 U.S. 82 (1967). The Clause does not protect "criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction." Gravel v. United States, supra, at 622. Neither, we think, does it immunize those who publish and distribute otherwise actionable materials *316 beyond the reasonable requirements of the legislative function.[10] Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause—"to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, supra, at 617; Powell v. McCormack, supra, at 502; United States v. Johnson, 383 U. S., at 181—will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.[11] To hold otherwise *317 would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law. Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the "informing function" of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is "public" in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the "due functioning of the [legislative] process." United States v. Brewster, 408 U. S., at 516. That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report "to be distributed to the public," that "distribution of the report continues to the present," and that, "unless restrained, defendants will continue to distribute and publish" damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did *318 anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination. In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.[12] II The official immunity doctrine, which "has in large part been of judicial making," Barr v. Matteo, 360 U. S., *319 at 569, confers immunity on Government officials of suitable rank for the reason that "officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." Id., at 571.[13] The official-immunity doctrine seeks to reconcile two important considerations— "[O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities." Id., at 565. In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id., at 573; see also Tenney v. Brandhove, 341 U. S., at 378; Dombrowski v. Eastland, 387 U. S., at 85. Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, at 569; Pierson v. Ray, 386 U.S. 547, 553-555 (1967). But policemen and like officials apparently enjoy a more limited privilege. Id., at 555-558. Also, the Court determined in Barr that the scope of immunity from *320 defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, at 573-574; see also the companion case, Howard v. Lyons, 360 U.S. 593, 597-598 (1959). The scope of immunity has always been tied to the "scope of . . . authority." Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963). In the legislative context, for instance, "[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role." Tenney v. Brandhove, supra, at 377. Thus, we have recognized "the immunity of legislators for acts within the legislative role," Pierson v. Ray, supra, at 554, but have carefully confined that immunity to protect only acts within "the sphere of legitimate legislative activity." Tenney v. Brandhove, supra, at 376; cf. Powell v. McCormack, supra. Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no readymade answer as to whether the remaining federal respondents —the Public Printer and the Superintendent of Documents—should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties. *321 The statutes of the United States created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S. C. § 301. "Printing or binding may be done at the Government Printing Office only when authorized by law." § 501. The Public Printer is authorized to do printing for Congress, §§ 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, §§ 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. §§ 1701-1722. Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the "usual number" unless a greater number is ordered. § 701. The "usual number" is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution "to the State libraries and designated depositories." Ibid.[14] There are also statutory provisions for the printing of extra copies, § 702, bills and resolutions, §§ 706-708, public and private laws, postal conventions, and treaties, §§ 709-712, journals, § 713, the Congressional Directory, §§ 721-722, memorial addresses, §§ 723-724, and the Statutes at Large, §§ 728-729. Section 733 provides that "[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress." *322 With respect to printing for the Executive and Judicial Branches, it is provided that "[a] head of an executive department . . . may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business." § 1102 (a). The executive departments and the courts are to requisition printing by certifying that it is "necessary for the public service." § 1103. The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, "which shall be delivered to the departments," and for either House of Congress, "which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service." § 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to "print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents," subject to regulation by the Joint Committee on Printing. § 1705. It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be "within the outer perimeter" of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Mateo, 360 U. S., at 575. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule. The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced *323 elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly fool-proof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the "official duties" of the department. Howard v. Lyons, 360 U. S., at 597. Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of "judicial making." Barr v. Matteo, 360 U. S., at 569. We do, however, write in the *324 shadow of Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), and Wisconsin v. Constantineau, 400 U.S. 433 (1971), where the Court advised caution "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him . . . ." Id., at 437. We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See Dombrowski v. Eastland, 387 U.S. 82 (1967). The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity," Tenney v. Brandhove, 341 U. S., at 376, they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen. Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings.[15] We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, *325 have been exceeded. These matters are for the lower courts in the first instance. Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.[16] The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. So ordered. MR. JUSTICE DOUGLAS, whom MR. JUSTICE BRENNAN and MR.

This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United Constitution, Art. I, 6, cl. 1, as well as the reach of official immunity in the legislative context. See ; By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of the organization, *308 management, operation, and administration" of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to "report to the House as soon as practicable the results of its investigation and study together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S. C. 501 and 701. The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.[1] The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative *309 efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.[2] On January 8, 1971, petitioners, under pseudonyms, brought an action in the United District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United of America. Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing *310 the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.[3] The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.[4] A divided panel of the United Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in barred any liability on the part of the District of Columbia officials as well as the legislative employees.[5] We granted certiorari, *311 I To "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Art. I, 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process."[6] The Speech or Debate Clause has been read "broadly to effectuate its purposes," United ; and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." ; United ; ; ; United v. Thus "voting by Members and committee reports are protected" and "a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, *312 may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the `sphere of legitimate legislative activity.' " Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were "legislative acts," and, as such, were immune from suit.[7] Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the "legislative sphere," -625, even though their conduct, if performed in other than *313 legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." As such, the acts were protected by the Speech or Debate Clause. Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. "[T]he Clause has not been extended beyond the legislative sphere," and "[l]egislative acts are not all-encompassing." -625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct "though generally done, is not protected legislative activity." ; United Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the *314 hearing was unquestionably part of the legislative process. The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect "publications to the public through the facilities of Congress." Public dissemination, it is argued, will serve "the important legislative function of informing the public concerning matters pending before Congress" Brief for Legislative Respondents 27. We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislative or other matters before the House. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.[8] The reason is that republishing a libel under such circumstances *315 is not an essential part of the legislative process and is not part of that deliberative process "by which Members participate in committee and House proceedings." By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity. Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in when, at the direction of the House, he made an arrest that the courts subsequently found to be "without authority."[9] See also ; cf. The Clause does not protect "criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction." Neither, we think, does it immunize those who publish and distribute otherwise actionable materials *316 beyond the reasonable requirements of the legislative function.[10] Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause—"to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," at ; at ; United —will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.[11] To hold otherwise *317 would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law. Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the "informing function" of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is "public" in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the "due functioning of the [legislative] process." United v. That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report "to be distributed to the public," that "distribution of the report continues to the present," and that, "unless restrained, defendants will continue to distribute and publish" damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did *318 anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination. In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.[12] II The official immunity doctrine, which "has in large part been of judicial making," 360 U. S., *319 confers immunity on Government officials of suitable rank for the reason that "officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government."[13] The official-immunity doctrine seeks to reconcile two important considerations— "[O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities." In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. ; see also ; Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. ; But policemen and like officials apparently enjoy a more limited privilege. Also, the Court determined in Barr that the scope of immunity from *320 defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. -574; see also the companion case, The scope of immunity has always been tied to the "scope of authority." In the legislative context, for instance, "[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role." Thus, we have recognized "the immunity of legislators for acts within the legislative role," but have carefully confined that immunity to protect only acts within "the sphere of legitimate legislative activity." ; cf. Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no readymade answer as to whether the remaining federal respondents —the Public Printer and the Superintendent of Documents—should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties. *321 The statutes of the United created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S. C. 301. "Printing or binding may be done at the Government Printing Office only when authorized by law." 501. The Public Printer is authorized to do printing for Congress, 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. 1701-1722. Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the "usual number" unless a greater number is ordered. 701. The "usual number" is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution "to the State libraries and designated depositories." [14] There are also statutory provisions for the printing of extra copies, 702, bills and resolutions, 706-708, public and private laws, postal conventions, and treaties, 709-712, journals, 713, the Congressional Directory, 721-722, memorial addresses, 723-724, and the Statutes at Large, 728-729. Section 733 provides that "[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress." *322 With respect to printing for the Executive and Judicial Branches, it is provided that "[a] head of an executive department may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business." 1102 (a). The executive departments and the courts are to requisition printing by certifying that it is "necessary for the public service." 1103. The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, "which shall be delivered to the departments," and for either House of Congress, "which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service." 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to "print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents," subject to regulation by the Joint Committee on Printing. 1705. It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be "within the outer perimeter" of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule. The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced *323 elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly fool-proof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the "official duties" of the department. Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of "judicial making." 360 U. S., We do, however, write in the *324 shadow of Board of Regents of State and where the Court advised caution "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him" We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity," 341 U. S., they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen. Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings.[15] We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, *325 have been exceeded. These matters are for the lower courts in the first instance. Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.[16] The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. So ordered. MR. JUSTICE DOUGLAS, whom MR. JUSTICE BRENNAN and MR.

Justice Stevens

majority

Associated Gen. Contractors of Cal., Inc. v. Carpenters

https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/

https://www.courtlistener.com/api/rest/v3/clusters/110831/

1982-027

This case arises out of a dispute between parties to a multiemployer collective-bargaining agreement. The plaintiff unions allege that, in violation of the antitrust laws, the multiemployer association and its members coerced certain third parties, as well as some of the association's members, to enter into business relationships with nonunion firms. This coercion, according to the complaint, adversely affected the trade of certain unionized firms and thereby restrained the *521 business activities of the unions. The question presented is whether the complaint sufficiently alleges that the unions have been "injured in [their] business or property by reason of anything forbidden in the antitrust laws" and may therefore recover treble damages under § 4 of the Clayton Act. 38 Stat. 731, 15 U.S. C. § 15. Unlike the majority of the Court of Appeals for the Ninth Circuit, we agree with the District Court's conclusion that the complaint is insufficient. I The two named plaintiffs (the Union) — the California State Council of Carpenters and the Carpenters 46 Northern Counties Conference Board — are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Union represents more than 50,000 individuals employed by the defendants in the carpentry, drywall, piledriving, and related industries throughout the State of California. The Union's complaint is filed as a class action on behalf of numerous affiliated local unions and district councils. The defendants are Associated General Contractors of California, Inc. (Associated), a membership corporation composed of various building and construction contractors, approximately 250 members of Associated who are identified by name in an exhibit attached to the complaint, and 1,000 unidentified co-conspirators. The Union and Associated, and their respective predecessors, have been parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amount to more than $750 million per year. In addition, approximately 3,000 contractors who are not members of Associated have entered into separate "memorandum agreements" with the Union, which bind them to the terms of the master collective-bargaining agreements between the Union and Associated. The amended complaint does not *522 state the number of nonsignatory employers or the number of nonunion employees who are active in the relevant market. In paragraphs 23 and 24 of the amended complaint, the Union alleges the factual basis for five different damages claims.[1] Paragraph 23 alleges generally that the defendants conspired to abrogate and weaken the collective-bargaining relationship between the Union and the signatory employers. In seven subsections, paragraph 24 sets forth activities allegedly committed pursuant to the conspiracy. The most specific allegations relate to the labor relations between the parties.[2] The complaint's description of actions affecting nonparties is both brief and vague. It is alleged that defendants "(3) Advocated, encouraged, induced, and aided non-members of defendant Associated General Contractors of California, Inc. to refuse to enter into collective bargaining relationships with plaintiffs and each of them; "(4) Advocated, encouraged, induced, coerced, aided and encouraged owners of land and other letters of construction contracts to hire contractors and subcontractors who are not signatories to collective bargaining agreements with plaintiffs and each of them; *523 "(5) Advocated, induced, coerced, encouraged, and aided members of Associated General Contractors of California, Inc., non-members of Associated General Contractors of California, Inc., and `memorandum contractors' to enter into subcontracting agreements with subcontractors who are not signatories to any collective bargaining agreements with plaintiffs and each of them"; App. E to Pet. for Cert. 17-19 (emphasis added).[3] Paragraph 25 describes the alleged "purpose and effect" of these activities: first, "to weaken, destroy, and restrain the trade of certain contractors," who were either members of Associated or memorandum contractors who had signed agreements with the Union; and second, to restrain "the free exercise of the business activities of plaintiffs and each of them."[4] Plaintiffs claim that these alleged antitrust violations *524 caused them $25 million in damages.[5] The complaint does not identify any specific component of this damages claim. After hearing "lengthy oral argument" and after receiving two sets of written briefs, one filed before and the second filed after this Court's decision in Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616 (1975), the District Court dismissed the complaint, including the federal antitrust claim. 404 F. Supp. 1067 (ND Cal. 1975).[6] The court observed that the complaint alleged "a rather vague, general conspiracy," and that the allegations "appear typical of disputes a union might have with an employer," which in the normal course are resolved by grievance and arbitration or by the NLRB. Id., at 1069.[7] Without seeking to clarify or further amend the first amended complaint, the Union filed its notice of appeal on October 9, 1975. Over five years later, on November 20, 1980, the Court of Appeals reversed the District Court's dismissal of the Union's federal antitrust claim. 648 F.2d 527.[8] The majority *525 of the Court of Appeals disagreed with the District Court's characterization of the antitrust claim; it adopted a construction of the amended complaint which is somewhat broader than the allegations in the pleading itself.[9] The Court of Appeals held (1) that a Sherman Act violation — a group boycott — had been alleged, id., at 531-532; (2) that the defendants' conduct was not within the antitrust exemption for labor activities, id., at 532-536; and (3) that the plaintiffs had standing to recover damages for the injury to their own business activities occasioned by the defendants' "industry-wide boycott against all subcontractors with whom the Unions had signed agreements . . . ." Id., at 537. In support of the Union's standing, the majority reasoned that the Union was within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to the Union was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants. The court noted that its conclusion was consistent with other cases holding that union organizational *526 and representational activities constitute a form of business protected by the antitrust laws.[10] II As the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.[11] We first note that the Union's most specific claims of injury involve matters that are not subject to review under the antitrust laws. The amended complaint alleges that the defendants have breached their collective-bargaining agreements in various ways, and that they have manipulated their corporate names and corporate status in order to divert business to nonunion divisions or firms that they actually control. Such deceptive diversion of business to the nonunion portion of a so-called "double-breasted" operation might constitute a breach of contract, an unfair labor practice, or perhaps even a *527 common-law fraud or deceit, but in the context of the bargaining relationship between the parties to this litigation, such activities are plainly not subject to review under the federal antitrust laws.[12] Similarly, the charge that the defendants "advocated, encouraged, induced, and aided nonmembers. . . to refuse to enter into collective bargaining relationships" with the Union (¶ 24(3)) does not describe an antitrust violation.[13] The Union's antitrust claims arise from alleged restraints caused by defendants in the market for construction contracting and subcontracting.[14] The complaint alleges that defendants "coerced"[15] two classes of persons: (1) landowners and *528 others who let construction contracts, i. e., the defendants' customers and potential customers; and (2) general contractors, i. e., defendants' competitors and defendants themselves. Coercion against the members of both classes was designed to induce them to give some of their business — but not necessarily all of it — to nonunion firms.[16] Although the pleading does not allege that the coercive conduct increased the aggregate share of nonunion firms in the market, it does allege that defendants' activities weakened and restrained the trade "of certain contractors." See n. 4, supra. Thus, particular victims of coercion may have diverted particular contracts to nonunion firms and thereby caused certain unionized subcontractors to lose some business. We think the Court of Appeals properly assumed that such coercion might violate the antitrust laws.[17] An agreement to restrain trade may be unlawful even though it does not entirely exclude its victims from the market. See Associated Press v. United States, 326 U.S. 1, 17 (1945). Coercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions and may be condemned even without proof of its actual market effect. Cf. Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 210-214 (1959).[18] *529 Even though coercion directed by defendants at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not, of course, necessarily follow that still another party — the Union — is a person injured by reason of a violation of the antitrust laws within the meaning of § 4 of the Clayton Act. III We first consider the language in the controlling statute. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The class of persons who may maintain a private damages action under the antitrust laws is broadly defined in § 4 of the Clayton Act. 15 U.S. C. § 15. That section provides: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." A literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation. Some of our prior cases have paraphrased the statute in an equally expansive way.[19] But before we hold that the statute is as broad as its *530 words suggest, we must consider whether Congress intended such an open-ended meaning. The critical statutory language was originally enacted in 1890 as § 7 of the Sherman Act. 26 Stat. 210. The legislative history of the section shows that Congress was primarily interested in creating an effective remedy for consumers who were forced to pay excessive prices by the giant trusts and combinations that dominated certain interstate markets.[20] That history supports a broad construction of this remedial provision. A proper interpretation of the section cannot, however, ignore the larger context in which the entire statute was debated. *531 The repeated references to the common law in the debates that preceded the enactment of the Sherman Act make it clear that Congress intended the Act to be construed in the light of its common-law background.[21] Senator Sherman stated that the bill "does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government."[22] Thus our comments on the need for judicial interpretation of § 1 are equally applicable to § 7: "One problem presented by the language of § 1 of the Sherman Act is that it cannot mean what it says. The statute says that `every' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, § 1 would outlaw the entire body of private contract law. . . . "Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Society of *532 Professional Engineers v. United States, 435 U.S. 679, 687-688 (1978) (footnotes omitted). Just as the substantive content of the Sherman Act draws meaning from its common-law antecedents, so must we consider the contemporary legal context in which Congress acted when we try to ascertain the intended scope of the private remedy created by § 7. In 1890, notwithstanding general language in many state constitutions providing in substance that "every wrong shall have a remedy,"[23] a number of judge-made rules circumscribed the availability of damages recoveries in both tort and contract litigation — doctrines such as foreseeability and proximate cause,[24] directness of injury,[25] certainty of damages,[26]*533 and privity of contract.[27] Although particular common-law limitations were not debated in Congress, the frequent references to common-law principles imply that Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common-law rules applied in comparable litigation.[28] The federal judges who first confronted the task of giving meaning to § 7 so understood the congressional intent. Thus in 1910 the Court of Appeals for the Third Circuit held as a matter of law that neither a creditor nor a stockholder of a corporation that was injured by a violation of the antitrust laws could recover treble damages under § 7. Loeb v. Eastman *534 Kodak Co., 183 F. 704. The court explained that the plaintiff's injury as a stockholder was "indirect, remote, and consequential." Id., at 709.[29] This holding was consistent with Justice Holmes' explanation of a similar construction of the remedial provision of the Interstate Commerce Act a few years later: "The general tendency of the law, in regard to damages at least, is not to go beyond the first step." Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533 (1918).[30] When Congress enacted § 4 of the Clayton Act in 1914, and when it reenacted that section in 1955, 69 Stat. 282, it adopted the language of § 7 and presumably also the judicial gloss that avoided a simple literal interpretation. As this Court has observed, the lower federal courts have been "virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." Hawaii v. Standard Oil Co., 405 U.S. 251, 263, n. 14 (1972). Just last Term we stated: "An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but `despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable.' [Illinois *535 Brick Co. v. Illinois, 431 U. S.], at 760 (BRENNAN, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property." Blue Shield of Virginia v. McCready, 457 U.S. 465, 476-477 (1982). It is plain, therefore, that the question whether the Union may recover for the injury it allegedly suffered by reason of the defendants' coercion against certain third parties cannot be answered simply by reference to the broad language of § 4. Instead, as was required in common-law damages litigation in 1890, the question requires us to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them.[31] IV There is a similarity between the struggle of common-law judges to articulate a precise definition of the concept of "proximate cause,"[32] and the struggle of federal judges to *536 articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages.[33] It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrong-doing. In both situations the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.[34] Instead, *537 previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances. The factors that favor judicial recognition of the Union's antitrust claim are easily stated. The complaint does allege a causal connection between an antitrust violation and harm to the Union and further alleges that the defendants intended to cause that harm. As we have indicated, however, the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry. We are also satisfied that an allegation of improper motive, although it may support a plaintiff's damages claim under § 4,[35] is not a panacea that will enable any complaint to withstand a motion to dismiss.[36] Indeed, in McCready, we specifically held: "The availability of the § 4 remedy to some person who claims its benefit is not a question of the specific intent of the conspirators." 457 U.S., at 479.[37] *538 A number of other factors may be controlling. In this case it is appropriate to focus on the nature of the plaintiff's alleged injury. As the legislative history shows, the Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market.[38] Last Term in Blue Shield of Virginia v. McCready, supra, we identified the relevance of this central policy to a determination of the plaintiff's right to maintain an action under § 4. McCready alleged that she was a consumer of psychotherapeutic services and that she had been injured by the defendants' conspiracy to restrain competition in the market for such services.[39] The Court stressed the fact that "McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." 457 U.S., at 483, citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 487-489 (1977). After noting that her injury "was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market," 457 U.S., at 484, the Court concluded that such an injury "falls squarely within the area of congressional concern." Ibid. *539 In this case, however, the Union was neither a consumer nor a competitor in the market in which trade was restrained.[40] It is not clear whether the Union's interests would be served or disserved by enhanced competition in the market. As a general matter, a union's primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals.[41] At common law — as well as in the early days of administration of the federal antitrust laws — the collective activities of labor unions were regarded as a form of conspiracy in restraint of trade.[42] Federal policy has since developed not only a broad labor exemption from the antitrust laws,[43] but also a separate body of *540 labor law specifically designed to protect and encourage the organizational and representational activities of labor unions. Set against this background, a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains. In each case its alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, at 487-488. In this case, particularly in light of the longstanding collective-bargaining relationship between the parties, the Union's labor-market interests seem to predominate, and the Brunswick test is not satisfied. An additional factor is the directness or indirectness of the asserted injury. In this case, the chain of causation between the Union's injury and the alleged restraint in the market for construction subcontracts contains several somewhat vaguely defined links. According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors.[44] As a result, *541 the Union's complaint alleges, the Union suffered unspecified injuries in its "business activities."[45] It is obvious that any such injuries were only an indirect result of whatever harm may have been suffered by "certain" construction contractors and subcontractors.[46] If either these firms, or the immediate victims of coercion by defendants, have been injured by an antitrust violation, their injuries would be direct and, as we held in McCready, they would have a right to maintain their own treble-damages actions against the defendants. An action on their behalf would encounter none of the conceptual difficulties that *542 encumber the Union's claim.[47] The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general.[48] Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied. Partly because it is indirect, and partly because the alleged effects on the Union may have been produced by independent factors, the Union's damages claim is also highly speculative. There is, for example, no allegation that any collective-bargaining agreement was terminated as a result of the coercion, no allegation that the aggregate share of the contracting market controlled by union firms has diminished, no allegation that the number of employed union members has declined, and no allegation that the Union's revenues in the form of dues or initiation fees have decreased. Moreover, although coercion against certain firms is alleged, there is no assertion that any such firm was prevented from doing business with any union firms or that any firm or group of firms was subjected to a complete boycott. See nn. 9, 15, and 16, supra. *543 Other than the alleged injuries flowing from breaches of the collective-bargaining agreements — injuries that would be remediable under other laws — nothing but speculation informs the Union's claim of injury by reason of the alleged unlawful coercion. Yet, as we have recently reiterated, it is appropriate for § 4 purposes "to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm." Blue Shield of Virginia v. McCready, 457 U. S., at 475, n. 11, citing Hawaii v. Standard Oil Co., 405 U. S., at 262-263, n. 14.[49] The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits.[50] These cases have stressed the importance of avoiding *544 either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968), we refused to allow the defendants to discount the plaintiffs' damages claim to the extent that overcharges had been passed on to the plaintiffs' customers. We noted that any attempt to ascertain damages with such precision "would often require additional long and complicated proceedings involving massive evidence and complicated theories." Id., at 493. In Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), we held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. We observed that potential plaintiffs at each level in the distribution chain would be in a position to assert conflicting claims to a common fund, the amount of the alleged overcharge, thereby creating the danger of multiple liability for the fund and prejudice to absent plaintiffs. "Permitting the use of pass-on theories under § 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge — from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness." Id., at 737-738. The same concerns should guide us in determining whether the Union is a proper plaintiff under § 4 of the Clayton Act.[51]*545 As the Court wrote in Illinois Brick, massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble-damages suits. Id., at 745. In this case, if the Union's complaint asserts a claim for damages under § 4, the District Court would face problems of identifying damages and apportioning them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the work force or cutting hours or wages. In turn it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues.[52] We conclude, therefore, that the Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors — the nature of the Union's injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union's alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy — weigh heavily against judicial enforcement of the Union's antitrust claim. Accordingly, we hold that, based on the allegations of this complaint, the District *546A Court was correct in concluding that the Union is not a person injured by reason of a violation of the antitrust laws within the meaning of § 4 of the Clayton Act. The judgment of the Court of Appeals is reversed. It is so ordered.

This case arises out of a dispute between parties to a multiemployer collective-bargaining agreement. The plaintiff unions allege that, in violation of the antitrust laws, the multiemployer association and its members coerced certain third parties, as well as some of the association's members, to enter into business relationships with nonunion firms. This coercion, according to the complaint, adversely affected the trade of certain unionized firms and thereby restrained the *521 business activities of the unions. The question presented is whether the complaint sufficiently alleges that the unions have been "injured in [their] business or property by reason of anything forbidden in the antitrust laws" and may therefore recover treble damages under of the Clayton Act. 15 U.S. C. 15. Unlike the majority of the Court of Appeals for the Ninth Circuit, we agree with the District Court's conclusion that the complaint is insufficient. I The two named plaintiffs (the Union) — the California State Council of Carpenters and the Carpenters 6 Northern Counties Conference Board — are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Union represents more than 50,000 individuals employed by the defendants in the carpentry, drywall, piledriving, and related industries throughout the State of California. The Union's complaint is filed as a class action on behalf of numerous affiliated local unions and district councils. The defendants are Associated General Contractors of California, (Associated), a membership corporation composed of various building and construction contractors, approximately 250 members of Associated who are identified by name in an exhibit attached to the complaint, and 1,000 unidentified co-conspirators. The Union and Associated, and their respective predecessors, have been parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amount to more than $750 million per year. In addition, approximately 3,000 contractors who are not members of Associated have entered into separate "memorandum agreements" with the Union, which bind them to the terms of the master collective-bargaining agreements between the Union and Associated. The amended complaint does not *522 state the number of nonsignatory employers or the number of nonunion employees who are active in the relevant market. In paragraphs 23 and 2 of the amended complaint, the Union alleges the factual basis for five different damages claims.[1] Paragraph 23 alleges generally that the defendants conspired to abrogate and weaken the collective-bargaining relationship between the Union and the signatory employers. In seven subsections, paragraph 2 sets forth activities allegedly committed pursuant to the conspiracy. The most specific allegations relate to the labor relations between the parties.[2] The complaint's description of actions affecting nonparties is both brief and vague. It is alleged that defendants "(3) Advocated, encouraged, induced, and aided non-members of defendant Associated General Contractors of California, to refuse to enter into collective bargaining relationships with plaintiffs and each of them; "() Advocated, encouraged, induced, coerced, aided and encouraged owners of land and other letters of construction contracts to hire contractors and subcontractors who are not signatories to collective bargaining agreements with plaintiffs and each of them; *523 "(5) Advocated, induced, coerced, encouraged, and aided members of Associated General Contractors of California, non-members of Associated General Contractors of California, and `memorandum contractors' to enter into subcontracting agreements with subcontractors who are not signatories to any collective bargaining agreements with plaintiffs and each of them"; App. E to Pet. for Cert. -19 (emphasis added).[3] Paragraph 25 describes the alleged "purpose and effect" of these activities: first, "to weaken, destroy, and restrain the trade of certain contractors," who were either members of Associated or memorandum contractors who had signed agreements with the Union; and second, to restrain "the free exercise of the business activities of plaintiffs and each of them."[] Plaintiffs claim that these alleged antitrust violations *52 caused them $25 million in damages.[5] The complaint does not identify any specific component of this damages claim. After hearing "lengthy oral argument" and after receiving two sets of written briefs, one filed before and the second filed after this Court's decision in Connell Construction the District Court dismissed the complaint, including the federal antitrust claim.[6] The court observed that the complaint alleged "a rather vague, general conspiracy," and that the allegations "appear typical of disputes a union might have with an employer," which in the normal course are resolved by grievance and arbitration or by the NLRB.[7] Without seeking to clarify or further amend the first amended complaint, the Union filed its notice of appeal on October 9, Over five years later, on November 20, 1980, the Court of Appeals reversed the District Court's dismissal of the Union's federal antitrust claim.[8] The majority *525 of the Court of Appeals disagreed with the District Court's characterization of the antitrust claim; it adopted a construction of the amended complaint which is somewhat broader than the allegations in the pleading itself.[9] The Court of Appeals held (1) that a Sherman Act violation — a group boycott — had been alleged, ; (2) that the defendants' conduct was not within the antitrust exemption for labor activities, ; and (3) that the plaintiffs had standing to recover damages for the injury to their own business activities occasioned by the defendants' "industry-wide boycott against all subcontractors with whom the Unions had signed agreements" In support of the Union's standing, the majority reasoned that the Union was within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to the Union was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants. The court noted that its conclusion was consistent with other cases holding that union organizational *526 and representational activities constitute a form of business protected by the antitrust laws.[10] II As the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.[11] We first note that the Union's most specific claims of injury involve matters that are not subject to review under the antitrust laws. The amended complaint alleges that the defendants have breached their collective-bargaining agreements in various ways, and that they have manipulated their corporate names and corporate status in order to divert business to nonunion divisions or firms that they actually control. Such deceptive diversion of business to the nonunion portion of a so-called "double-breasted" operation might constitute a breach of contract, an unfair labor practice, or perhaps even a *527 common-law fraud or deceit, but in the context of the bargaining relationship between the parties to this litigation, such activities are plainly not subject to review under the federal antitrust laws.[12] Similarly, the charge that the defendants "advocated, encouraged, induced, and aided nonmembers. to refuse to enter into collective bargaining relationships" with the Union (¶ 2(3)) does not describe an antitrust violation.[13] The Union's antitrust claims arise from alleged restraints caused by defendants in the market for construction contracting and subcontracting.[1] The complaint alleges that defendants "coerced"[15] two classes of persons: (1) landowners and *528 others who let construction contracts, i. e., the defendants' customers and potential customers; and (2) general contractors, i. e., defendants' competitors and defendants themselves. Coercion against the members of both classes was designed to induce them to give some of their business — but not necessarily all of it — to nonunion firms.[] Although the pleading does not allege that the coercive conduct increased the aggregate share of nonunion firms in the market, it does allege that defendants' activities weakened and restrained the trade "of certain contractors." See n. Thus, particular victims of coercion may have diverted particular contracts to nonunion firms and thereby caused certain unionized subcontractors to lose some business. We think the Court of Appeals properly assumed that such coercion might violate the antitrust laws.[] An agreement to restrain trade may be unlawful even though it does not entirely exclude its victims from the market. See Associated (195). Coercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions and may be condemned even without proof of its actual market effect. Cf. Klors, 210-21[18] *529 Even though coercion directed by defendants at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not, of course, necessarily follow that still another party — the Union — is a person injured by reason of a violation of the antitrust laws within the meaning of of the Clayton Act. III We first consider the language in the controlling statute. See Consumer Product Safety 7 U.S. 102, The class of persons who may maintain a private damages action under the antitrust laws is broadly defined in of the Clayton Act. 15 U.S. C. 15. That section provides: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." A literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation. Some of our prior cases have paraphrased the statute in an equally expansive way.[19] But before we hold that the statute is as broad as its *530 words suggest, we must consider whether Congress intended such an open-ended meaning. The critical statutory language was originally enacted in 1890 as 7 of the Sherman Act. The legislative history of the section shows that Congress was primarily interested in creating an effective remedy for consumers who were forced to pay excessive prices by the giant trusts and combinations that dominated certain interstate markets.[20] That history supports a broad construction of this remedial provision. A proper interpretation of the section cannot, however, ignore the larger context in which the entire statute was debated. *531 The repeated references to the common law in the debates that preceded the enactment of the Sherman Act make it clear that Congress intended the Act to be construed in the light of its common-law background.[21] Senator Sherman stated that the bill "does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government."[22] Thus our comments on the need for judicial interpretation of 1 are equally applicable to 7: "One problem presented by the language of 1 of the Sherman Act is that it cannot mean what it says. The statute says that `every' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, 1 would outlaw the entire body of private contract law. "Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Society of *532 Professional 35 U.S. 679, Just as the substantive content of the Sherman Act draws meaning from its common-law antecedents, so must we consider the contemporary legal context in which Congress acted when we try to ascertain the intended scope of the private remedy created by 7. In 1890, notwithstanding general language in many state constitutions providing in substance that "every wrong shall have a remedy,"[23] a number of judge-made rules circumscribed the availability of damages recoveries in both tort and contract litigation — doctrines such as foreseeability and proximate cause,[2] directness of injury,[25] certainty of damages,[26]* and privity of contract.[27] Although particular common-law limitations were not debated in Congress, the frequent references to common-law principles imply that Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common-law rules applied in comparable litigation.[28] The federal judges who first confronted the task of giving meaning to 7 so understood the congressional intent. Thus in 1910 the Court of Appeals for the Third Circuit held as a matter of law that neither a creditor nor a stockholder of a corporation that was injured by a violation of the antitrust laws could recover treble damages under 7. Loeb v. Eastman *53 Kodak 183 F. 70. The court explained that the plaintiff's injury as a stockholder was "indirect, remote, and consequential."[29] This holding was consistent with Justice Holmes' explanation of a similar construction of the remedial provision of the Interstate Commerce Act a few years later: "The general tendency of the law, in regard to damages at least, is not to go beyond the first step." Southern Pacific 25 U.S. 531,[30] When Congress enacted of the Clayton Act in 191, and when it reenacted that section in 1955, it adopted the language of 7 and presumably also the judicial gloss that avoided a simple literal interpretation. As this Court has observed, the lower federal courts have been "virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." 05 U.S. 251, 263, n. 1 Just last Term we stated: "An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but `despite the broad wording of there is a point beyond which the wrongdoer should not be held liable.' [Illinois *535 Brick v. Illinois, 31 U. S.], at 760 (BRENNAN, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property." Blue Shield of 57 U.S. 65, 76-77 It is plain, therefore, that the question whether the Union may recover for the injury it allegedly suffered by reason of the defendants' coercion against certain third parties cannot be answered simply by reference to the broad language of Instead, as was required in common-law damages litigation in 1890, the question requires us to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them.[31] IV There is a similarity between the struggle of common-law judges to articulate a precise definition of the concept of "proximate cause,"[32] and the struggle of federal judges to *536 articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages.[33] It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrong-doing. In both situations the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.[3] Instead, *537 previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances. The factors that favor judicial recognition of the Union's antitrust claim are easily stated. The complaint does allege a causal connection between an antitrust violation and harm to the Union and further alleges that the defendants intended to cause that harm. As we have indicated, however, the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry. We are also satisfied that an allegation of improper motive, although it may support a plaintiff's damages claim under[35] is not a panacea that will enable any complaint to withstand a motion to dismiss.[36] Indeed, in we specifically held: "The availability of the remedy to some person who claims its benefit is not a question of the specific intent of the conspirators." 57 U.S., at 79.[37] *538 A number of other factors may be controlling. In this case it is appropriate to focus on the nature of the plaintiff's alleged injury. As the legislative history shows, the Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market.[38] Last Term in Blue Shield of we identified the relevance of this central policy to a determination of the plaintiff's right to maintain an action under alleged that she was a consumer of psychotherapeutic services and that she had been injured by the defendants' conspiracy to restrain competition in the market for such services.[39] The Court stressed the fact that "'s injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." 57 U.S., at 83, citing Brunswick 29 U.S. 77, 87-89 After noting that her injury "was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market," 57 U.S., at 8, the Court concluded that such an injury "falls squarely within the area of congressional concern." *539 In this case, however, the Union was neither a consumer nor a competitor in the market in which trade was restrained.[0] It is not clear whether the Union's interests would be served or disserved by enhanced competition in the market. As a general matter, a union's primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals.[1] At common law — as well as in the early days of administration of the federal antitrust laws — the collective activities of labor unions were regarded as a form of conspiracy in restraint of trade.[2] Federal policy has since developed not only a broad labor exemption from the antitrust laws,[3] but also a separate body of *50 labor law specifically designed to protect and encourage the organizational and representational activities of labor unions. Set against this background, a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains. In each case its alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall. See Brunswick at 87-88. In this case, particularly in light of the longstanding collective-bargaining relationship between the parties, the Union's labor-market interests seem to predominate, and the Brunswick test is not satisfied. An additional factor is the directness or indirectness of the asserted injury. In this case, the chain of causation between the Union's injury and the alleged restraint in the market for construction subcontracts contains several somewhat vaguely defined links. According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors.[] As a result, *51 the Union's complaint alleges, the Union suffered unspecified injuries in its "business activities."[5] It is obvious that any such injuries were only an indirect result of whatever harm may have been suffered by "certain" construction contractors and subcontractors.[6] If either these firms, or the immediate victims of coercion by defendants, have been injured by an antitrust violation, their injuries would be direct and, as we held in they would have a right to maintain their own treble-damages actions against the defendants. An action on their behalf would encounter none of the conceptual difficulties that *52 encumber the Union's claim.[7] The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general.[8] Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied. Partly because it is indirect, and partly because the alleged effects on the Union may have been produced by independent factors, the Union's damages claim is also highly speculative. There is, for example, no allegation that any collective-bargaining agreement was terminated as a result of the coercion, no allegation that the aggregate share of the contracting market controlled by union firms has diminished, no allegation that the number of employed union members has declined, and no allegation that the Union's revenues in the form of dues or initiation fees have decreased. Moreover, although coercion against certain firms is alleged, there is no assertion that any such firm was prevented from doing business with any union firms or that any firm or group of firms was subjected to a complete boycott. See nn. 9, 15, and *53 Other than the alleged injuries flowing from breaches of the collective-bargaining agreements — injuries that would be remediable under other laws — nothing but speculation informs the Union's claim of injury by reason of the alleged unlawful coercion. Yet, as we have recently reiterated, it is appropriate for purposes "to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm." Blue Shield of 57 U. S., at 75, n. 11, citing 05 U. S., at 262-263, n. 1.[9] The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits.[50] These cases have stressed the importance of avoiding *5 either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, v. United Shoe Machinery Corp., 392 U.S. 81 we refused to allow the defendants to discount the plaintiffs' damages claim to the extent that overcharges had been passed on to the plaintiffs' customers. We noted that any attempt to ascertain damages with such precision "would often require additional long and complicated proceedings involving massive evidence and complicated theories." at 93. In Illinois Brick v. Illinois, 31 U.S. 720 we held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. We observed that potential plaintiffs at each level in the distribution chain would be in a position to assert conflicting claims to a common fund, the amount of the alleged overcharge, thereby creating the danger of multiple liability for the fund and prejudice to absent plaintiffs. "Permitting the use of pass-on theories under essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge — from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness." The same concerns should guide us in determining whether the Union is a proper plaintiff under of the Clayton Act.[51]*55 As the Court wrote in Illinois Brick, massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble-damages suits. at 75. In this case, if the Union's complaint asserts a claim for damages under the District Court would face problems of identifying damages and apportioning them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the work force or cutting hours or wages. In turn it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues.[52] We conclude, therefore, that the Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors — the nature of the Union's injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union's alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy — weigh heavily against judicial enforcement of the Union's antitrust claim. Accordingly, we hold that, based on the allegations of this complaint, the District *56A Court was correct in concluding that the Union is not a person injured by reason of a violation of the antitrust laws within the meaning of of the Clayton Act. The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Kennedy

concurring

Wisconsin Dept. of Corrections v. Schacht

https://www.courtlistener.com/opinion/118236/wisconsin-dept-of-corrections-v-schacht/

https://www.courtlistener.com/api/rest/v3/clusters/118236/

1997-093

In joining the opinion of the Court, I write to observe we have neither reached nor considered the argument that, by giving its express consent to removal of the case from state court, Wisconsin waived its Eleventh Amendment immunity. Insofar as the record shows, this issue was not raised in the proceedings below; and it was not part of the briefs filed here or the arguments made to the Court. The question should be considered, however, in some later case. Removal requires the consent of all of the defendants. See, e. g., Chicago, R. I. & P. R. Co. v. Martin, 178 U.S. 245, 248 (1900); 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3731, p. 504 (2d ed. 1985). Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity. Given the latitude accorded the States in raising the immunity at a late stage, however, a rule of waiver may not be all that obvious. The Court has said the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the merits. *394 See Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 683, n. 18 (1982) (plurality opinion); see also Calderon v. Ashmus, 523 U.S. 740, 745, n. 2 (1998); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, n. 8 (1984); Edelman v. Jordan, 415 U.S. 651, 678 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 467 (1945). I have my doubts about the propriety of this rule. In permitting the belated assertion of the Eleventh Amendment bar, we allow States to proceed to judgment without facing any real risk of adverse consequences. Should the State prevail, the plaintiff would be bound by principles of res judicata. If the State were to lose, however, it could void the entire judgment simply by asserting its immunity on appeal. This departure from the usual rules of waiver stems from the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment. In certain respects, the immunity bears substantial similarity to personal jurisdiction requirements, since it can be waived and courts need not raise the issue sua sponte. See Patsy v. Board of Regents of Fla., 457 U.S. 496, 516, n. 19 (1982). Permitting the immunity to be raised at any stage of the proceedings, in contrast, is more consistent with regarding the Eleventh Amendment as a limit on the federal courts' subject-matter jurisdiction. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-704 (1982) (comparing personal jurisdiction with subject-matter jurisdiction). We have noted the inconsistency. Although the text is framed in terms of the extent of the "Judicial power of the United States," U. S. Const., Amdt. 11, our precedents have treated the Eleventh Amendment as "enact[ing] a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction." Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that allowing waiver of the immunity "seems *395 inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). The Court could eliminate the unfairness by modifying our Eleventh Amendment jurisprudence to make it more consistent with our practice regarding personal jurisdiction. Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage. See Fed. Rule Civ. Proc. 12(h)(1). We would not need to make this substantial revision to find waiver in the circumstances here, however. Even if appearing in federal court and defending on the merits is not sufficient to constitute a waiver, a different case may be presented when a State under no compulsion to appear in federal court voluntarily invokes its jurisdiction. As the Court recognized in Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906), "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." An early decision of this Court applied this principle in holding that a State's voluntary intervention in a federalcourt action to assert its own claim constituted a waiver of the Eleventh Amendment. Clark v. Barnard, 108 U.S. 436, 447-448 (1883); see also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 294, n. 10 (1973) (Marshall, J., concurring in result) (citing Clark v. Barnard with approval); Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959) (same); Missouri v. Fiske, 290 U.S. 18, 24-25 (1933) (same). The Court also found a waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund. Gardner v. New Jersey, 329 U.S. 565, 574 (1947). Since a State which is made a defendant to a state-court action is under no compulsion *396 to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in Clark and Gardner. Some Courts of Appeals, following this reasoning, have recognized that consent to removal may constitute a waiver. Newfield House, Inc. v. Massachusetts Dept. of Pub. Welfare, 651 F.2d 32, 36, n. 3 (CA1), cert. denied, 454 U.S. 1114 (1981); see also Estate of Porter v. Illinois, 36 F.3d 684, 691 (CA7 1994); Silver v. Baggiano, 804 F.2d 1211, 1214 (CA11 1986); Gwinn Area Community Schools v. Michigan, 741 F.2d 840, 847 (CA6 1984). These cases have first inquired, however, whether state law authorized the attorneys representing the State to waive the Eleventh Amendment on its behalf. Petitioners cited this qualification when we raised the issue at oral argument in the instant case. This was also the Court's apparent concern in Ford Motor Co., in which it held: "It is conceded by the respondents that if it is within the power of the administrative and executive officers of Indiana to waive the state's immunity, they have done so in this proceeding. The issue thus becomes one of their power under state law to do so. As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions. Article 4, § 24 of the Indiana Constitution provides: "`Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.' "We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in *397 the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. . . . It would seem, therefore, that no properly authorized executive or administrative officer of the state has waived the state's immunity to suit in the federal courts." 323 U.S., at 467-469 (footnotes omitted). See also Sosna v. Iowa, 419 U.S. 393, 396, n. 2 (1975). Notwithstanding the quoted language from Ford Motor Co., the absence of specific authorization, it seems to me, is not an insuperable obstacle to adopting a rule of waiver in every case where the State, through its attorneys, consents to removal from the state court to the federal court. If the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal. It is true as well that the Court's recent cases have disfavored constructive waivers of the Eleventh Amendment and have required the State's consent to suit be unequivocal. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-247 (1985); Edelman v. Jordan, 415 U. S., at 673. The conduct which may give rise to the waiver in the instance of removal is far less equivocal than the conduct at issue in those cases, however. Here the State's consent amounted to a direct invocation of the jurisdiction of the federal courts, an act considerably more specific than the general participation in a federal program found insufficient in Atascadero and Edelman. These questions should be explored. If it were demonstrated that a federal rule finding waiver of the Eleventh *398 Amendment when the State consents to removal would put States at some unfair tactical disadvantage, perhaps the waiver rule ought not to be embraced. I tend to doubt such consequences, however. Since the issue was not addressed either by the parties or the Court of Appeals, the proper course is for us to defer addressing the question until it is presented for our consideration, supported by full briefing and argument, in some later case.

In joining the opinion of the Court, I write to observe we have neither reached nor considered the argument that, by giving its express consent to removal of the case from state court, Wisconsin waived its Eleventh Amendment immunity. Insofar as the record shows, this issue was not raised in the proceedings below; and it was not part of the briefs filed here or the arguments made to the Court. The question should be considered, however, in some later case. Removal requires the consent of all of the defendants. See, e. g., Chicago, R. I. & P. R. ; 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3731, p. 504 Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity. Given the latitude accorded the States in raising the immunity at a late stage, however, a rule of waiver may not be all that obvious. The Court has said the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the merits. *394 See Florida Dept. of ; see also ; Pennhurst State School and ; ; Ford Motor I have my doubts about the propriety of this rule. In permitting the belated assertion of the Eleventh Amendment bar, we allow States to proceed to judgment without facing any real risk of adverse consequences. Should the State prevail, the plaintiff would be bound by principles of res judicata. If the State were to lose, however, it could void the entire judgment simply by asserting its immunity on appeal. This departure from the usual rules of waiver stems from the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment. In certain respects, the immunity bears substantial similarity to personal jurisdiction requirements, since it can be waived and courts need not raise the issue sua sponte. See Permitting the immunity to be raised at any stage of the proceedings, in contrast, is more consistent with regarding the Eleventh Amendment as a limit on the federal courts' subject-matter jurisdiction. See Insurance Corp. of We have noted the inconsistency. Although the text is framed in terms of the extent of the "Judicial power of the United States," U. S. Const., Amdt. 11, our precedents have treated the Eleventh Amendment as "enact[ing] a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction." ; see also E. Chemerinsky, Federal Jurisdiction 7.6, p. 405 (noting that allowing waiver of the immunity "seems *395 inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). The Court could eliminate the unfairness by modifying our Eleventh Amendment jurisprudence to make it more consistent with our practice regarding personal jurisdiction. Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage. See Fed. Rule Civ. Proc. 12(h)(1). We would not need to make this substantial revision to find waiver in the circumstances here, however. Even if appearing in federal court and defending on the merits is not sufficient to constitute a waiver, a different case may be presented when a State under no compulsion to appear in federal court voluntarily invokes its jurisdiction. As the Court recognized in "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." An early decision of this Court applied this principle in holding that a State's voluntary intervention in a federalcourt action to assert its own claim constituted a waiver of the Eleventh Amendment. ; see also Employees of Dept. of Public Health and Welfare of (citing with approval); ; The Court also found a waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund. Since a State which is made a defendant to a state-court action is under no compulsion *396 to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in Clark and Gardner. Some Courts of Appeals, following this reasoning, have recognized that consent to removal may constitute a waiver. Newfield House, (CA1), cert. denied, ; see also Estate of ; ; Gwinn Area Community These cases have first inquired, however, whether state law authorized the attorneys representing the State to waive the Eleventh Amendment on its behalf. Petitioners cited this qualification when we raised the issue at oral argument in the instant case. This was also the Court's apparent concern in Ford Motor Co., in which it held: "It is conceded by the respondents that if it is within the power of the administrative and executive officers of Indiana to waive the state's immunity, they have done so in this proceeding. The issue thus becomes one of their power under state law to do so. As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions. Article 4, 24 of the Indiana Constitution provides: "`Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.' "We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in *397 the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. It would seem, therefore, that no properly authorized executive or administrative officer of the state has waived the state's immunity to suit in the federal courts." 323 U.S., at -469 See also Notwithstanding the quoted language from Ford Motor Co., the absence of specific authorization, it seems to me, is not an insuperable obstacle to adopting a rule of waiver in every case where the State, through its attorneys, consents to removal from the state court to the federal court. If the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal. It is true as well that the Court's recent cases have disfavored constructive waivers of the Eleventh Amendment and have required the State's consent to suit be unequivocal. Atascadero State ; The conduct which may give rise to the waiver in the instance of removal is far less equivocal than the conduct at issue in those cases, however. Here the State's consent amounted to a direct invocation of the jurisdiction of the federal courts, an act considerably more specific than the general participation in a federal program found insufficient in Atascadero and Edelman. These questions should be explored. If it were demonstrated that a federal rule finding waiver of the Eleventh *398 Amendment when the State consents to removal would put States at some unfair tactical disadvantage, perhaps the waiver rule ought not to be embraced. I tend to doubt such consequences, however. Since the issue was not addressed either by the parties or the Court of Appeals, the proper course is for us to defer addressing the question until it is presented for our consideration, supported by full briefing and argument, in some later case.

Justice Alito

majority

Burwell v. Hobby Lobby Stores, Inc.

https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2681317/

2013-070

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the 2 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Federal Government from taking any action that substan- tially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compel- ling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for- feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie- torships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not dis- criminate in this way against men and women who wish to run their businesses as for-profit corporations in the man- ner required by their religious beliefs. Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also consti- tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra- ceptives at issue here and, indeed, to all FDA-approved contraceptives. Cite as: 573 U. S. ____ (2014) 3 Opinion of the Court In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa- nies whose owners have no religious objections to provid- ing such coverage. The employees of these religious non- profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep- tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to reli- gious nonprofits that have religious objections to the con- traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corpo- ration’s religious beliefs no matter the impact that ac- commodation may have on . . . thousands of women em- 4 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. I A Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ­ ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U.S. 398 (1963), and Wiscon­ sin v. Yoder, 406 U.S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the chal- lenged action imposed a substantial burden on the prac- tice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U.S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U.S., at 210–211, 234–236. In Smith, however, the Court rejected “the balancing —————— 1 See also post, at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”) Cite as: 573 U. S. ____ (2014) 5 Opinion of the Court test set forth in Sherbert.” 494 U.S., at 883. Smith con- cerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consump- tion of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U.S., at 875. This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U.S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental inter- est.” City of Boerne v. Flores, 521 U.S. 507, 514 (1997). Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Govern- ment substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that appli- cation of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern- —————— 2 The Act defines “government” to include any “department” or “agency” of the United States. §2000bb–2(1). 6 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court mental interest.” §2000bb–1(b).3 As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional author- ity invoked for regulating federal and state agencies dif- fered. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agen- cy’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U.S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of uncon- stitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532. Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U.S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition —————— 3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the pre- Smith jurisprudence RFRA purported to codify.” Id., at 509. On this understanding of our pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4 See, e.g., Hankins v. Lyght, 441 F.3d 96, 108 (CA2 2006); Guam v. Guerrero, 290 F.3d 1210, 1220 (CA9 2002). Cite as: 573 U. S. ____ (2014) 7 Opinion of the Court made reference to the First Amendment. See §2000bb– 2(4) (1994 ed.) (defining “exercise of religion” as “the exer- cise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of reli- gion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this con- cept “be construed in favor of a broad protection of reli- gious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g).5 B At issue in these cases are HHS regulations promul- gated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U.S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substan- tial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ- —————— 5 The principal dissent appears to contend that this rule of construc- tion should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U.S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA. 8 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full- time employees. §§4980H(a), (c)(1). Unless an exception applies, ACA requires an employ- er’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U.S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012). In August 2011, based on the Institute’s recommenda- tions, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonex- empt employers are generally required to provide “cover- age, without cost sharing” for “[a]ll Food and Drug Ad- ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and coun- seling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertiliza- tion of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS Cite as: 573 U. S. ____ (2014) 9 Opinion of the Court in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medi- cines to Help You.7 HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associ- ations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U.S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines. In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contracep- tive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organi- zation” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan —————— 6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments. 7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm313215.htm. The owners of the companies in- volved in these cases and others who believe that life begins at concep- tion regard these four methods as causing abortions, but federal regula- tions, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them. 10 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8 Al- though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9 In addition to these exemptions for religious organiza- tions, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfa- thered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s re- quirements, including the contraceptive mandate. 42 U.S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance —————— 8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organi- zation’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiar- ies. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations establish a mechanism for these third- party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882. 9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014). Cite as: 573 U. S. ____ (2014) 11 Opinion of the Court at all. 26 U.S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F.3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grand- fathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foun- dation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to pro- vide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Busi- nesses 1.11 II A Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”12 Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania —————— 10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out. 11 Online at http : / / www . whitehouse . gov / files / documents / health _ reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-and- resolutions/statement-on-abortion/. 12 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO. The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vi- sion and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint). As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F.3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the group- health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifa- cients. Id., at 382. The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin applica- tion of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA- approved contraceptives that may operate after the fertili- zation of an egg.13 These include two forms of emergency —————— 13 The Hahns and Conestoga also claimed that the contraceptive Cite as: 573 U. S. ____ (2014) 13 Opinion of the Court contraception commonly called “morning after” pills and two types of intrauterine devices.14 In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a prelimi- nary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for- profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F.3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389. B David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and- crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F.3d, at 1122. Hobby Lobby is organized as a for-profit corpora- tion under Oklahoma law. One of David’s sons started an affiliated business, Mar- del, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the —————— mandate violates the Fifth Amendment and the Administrative Proce- dure Act, 5 U.S. C. §553, but those claims are not before us. 14 See, e.g., WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 20100813/new-morning-after-pill-ella-wins-fda-approval. 14 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.15 Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operat- ing the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the busi- nesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F.3d, at 1122. In accordance with those commit- ments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in prof- itable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted). Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facili- tate access to contraceptive drugs or devices that operate after that point. 723 F.3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan pre- dates the enactment of ACA, it is not a grandfathered plan —————— 15 TheGreens operate Hobby Lobby and Mardel through a manage- ment trust, of which each member of the family serves as trustee. 723 F.3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid. Cite as: 573 U. S. ____ (2014) 15 Opinion of the Court because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124. The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the con- traceptive mandate under RFRA and the Free Exercise Clause.16 The District Court denied a preliminary injunc- tion, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc considera- tion. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law. The court then held that the corporations had estab- lished a likelihood of success on their RFRA claim. 723 F.3d, at 1140–1147. The court concluded that the contra- ceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annu- ally if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141. The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the —————— 16 They also raised a claim under the Administrative Procedure Act, 5 U.S. C. §553. 16 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court court reversed and remanded for the District Court to consider the remaining factors of the preliminary- injunction test. Id., at 1147.17 We granted certiorari. 571 U. S. ___ (2013). III A RFRA prohibits the “Government [from] substantially burden[ing] 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 governmental interest; and (2) is the least restrictive means of furthering that compelling governmental inter- est.” 42 U.S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel. HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal mat- ter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences. Consider this Court’s decision in Braunfeld v. Brown, —————— 17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F.3d, at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, J., concurring). Cite as: 573 U. S. ____ (2014) 17 Opinion of the Court 366 U.S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail busi- nesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still sub- ject to the Act (for example, the District of Columbia, see 42 U.S. C. §2000bb–2(2)), the merchants would be enti- tled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with- out in any way changing the size or nature of their busi- nesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations. As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug- gests? An examination of RFRA’s text, to which we turn —————— 18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was re- quired by our pre-Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situa- tions that fall squarely within the holdings of pre-Smith cases. See infra, at 25–28. 18 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court in the next part of this opinion, reveals that Congress did no such thing. As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An estab- lished body of law specifies the rights and obligations of the people (including shareholders, officers, and employ- ees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu- tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei- zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. In holding that Conestoga, as a “secular, for-profit cor- poration,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F.3d, at 385 (emphasis added). All of this is true—but quite beside the point. Corpora- Cite as: 573 U. S. ____ (2014) 19 Opinion of the Court tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. B 1 As we noted above, RFRA applies to “a person’s” exer- cise of religion, 42 U.S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n deter- mining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U.S. C. §1. Under the Dictionary Act, “the wor[d] ‘person’ . . . in- clude[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard. We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U.S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the mean- ing of RFRA. See Brief for HHS in No. 13–354, at 17; 20 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Reply Brief in No. 13–354, at 7–8.19 This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. Clark v. Martinez, 543 U.S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”). 2 The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise reli- gion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can —————— 19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesi- astical corporation”). 20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40. Cite as: 573 U. S. ____ (2014) 21 Opinion of the Court be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli- gious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their re- ligious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con- estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21 If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U.S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profes- sion but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U.S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comforta- bly within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expen- sive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U.S. 252, 257 (1982) (recognizing that “compulsory participation in the social security sys- tem interferes with [Amish employers’] free exercise —————— 21 Although the principal dissent seems to think that Justice Bren- nan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, 642 (1961) (dissenting opinion); infra, at 26– 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rights”). If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same? Some lower court judges have suggested that RFRA does not protect for-profit corporations because the pur- pose of such corporations is simply to make money.23 This —————— 22 It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’ claims. See post, at 19 (dismissing the relevance of Braunfeld in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”). 23 See, e.g., 724 F.3d, at 385 (“We do not see how a for-profit, ‘artifi- cial being,’ . . . that was created to make money” could exercise reli- gion); Grote v. Sebelius, 708 F.3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius, 730 F.3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F.3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”). The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; for- profit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356, p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to . . . Honoring the Lord in all we do by Cite as: 573 U. S. ____ (2014) 23 Opinion of the Court argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implica- tion authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for- profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitar- ian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy- conservation measures that go beyond what the law re- quires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corpo- —————— operating . . . in a manner consistent with Biblical principles.” App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Black- stone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows for- profit corporations to “perpetuat[e] religious values.” 24 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave un- protected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candi- dates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between estab- lishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corpora- tion,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25 In any event, the objectives that may properly be pur- —————— 24 See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organ- izations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philan- thropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3). 25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corpora- tion shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful busi- ness].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educa- tional purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar). Cite as: 573 U. S. ____ (2014) 25 Opinion of the Court sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in con- formity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354. 3 HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws. First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of reli- gion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U.S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiter- rorism and Effective Death Penalty Act of 1996, 28 26 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amend- ment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U.S. C. §2000bb–2(4) (2000 ed.) (in- corporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “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). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions. Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961), the Massachusetts Sunday closing law was chal- lenged by a kosher market that was organized as a for- profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that —————— 26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”). Cite as: 573 U. S. ____ (2014) 27 Opinion of the Court argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U.S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Bren- nan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U.S. 420, 578–579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Fi- nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U.S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it nec- essary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim. Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protec- tive reach simply because the Court never addressed their rights before Smith? Presumably in recognition of the weakness of this ar- 28 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applica- ble laws. By contrast, HHS contends, statutes like Title VII, 42 U.S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U.S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations. —————— 27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for- profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” Ibid. This argument fails to recognize that the protection provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimina- tion under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest. In addition, the dissent’s argument proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits. Cite as: 573 U. S. ____ (2014) 29 Opinion of the Court 4 Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the reli- gious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30. These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corpo- rate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occur- ring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s ap- plicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28 HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted reli- gious belief moved Congress to exclude for-profit corpora- tions from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category —————— 28 To qualify for RFRA’s protection, an asserted belief must be “sin- cere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F.3d 717, 718–719 (CA10 2010). 30 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Con- gress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Con- gress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits? HHS and the principal dissent express concern about the possibility of disputes among the owners of corpora- tions, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation —————— 29 See, e.g., Ochs v. Thalacker, 90 F.3d 293, 296 (CA8 1996); Green v. White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N.W.2d 819– 820 (Iowa 1996). Cite as: 573 U. S. ____ (2014) 31 Opinion of the Court may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes. For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.30 IV Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U.S. C. §2000bb– 1(a). We have little trouble concluding that it does. —————— 30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amend- ment—or even the most likely. For one thing, the text of the amend- ment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how nar- rowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other con- texts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U.S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies. 32 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court A As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They there- fore object on religious grounds to providing health insur- ance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U.S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial. It is true that the plaintiffs could avoid these assess- ments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a sub- sidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. B Although these totals are high, amici supporting HHS Cite as: 573 U. S. ____ (2014) 33 Opinion of the Court have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily elimi- nate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981); Bell v. Wolfish, 441 U.S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U.S. 361, 370 (1960), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insur- ance plans altogether. Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they never- theless did so—in part, no doubt, for conventional business —————— 31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added). 34 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139. Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that em- ployees value. If the companies simply eliminated that benefit and forced employees to purchase their own insur- ance on the exchanges, without offering additional com- pensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153. The companies could attempt to make up for the elimi- nation of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U.S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro- vided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.32 —————— 32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full Cite as: 573 U. S. ____ (2014) 35 Opinion of the Court In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substan- tial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin- cerely held religious beliefs or making all of their employ- ees lose their existing healthcare plans. C In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four meth- ods at issue.33 Ibid. —————— compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer- provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. 33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same reli- gious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required 36 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi- —————— to do if not exempted (provide insurance coverage for particular contra- ceptives) and the ultimate event that they find morally wrong (destruc- tion of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemp- tion from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contracep- tive coverage. 78 Fed. Reg. 39871. When this was done, the Govern- ment made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid. Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”). Cite as: 573 U. S. ____ (2014) 37 Opinion of the Court pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U.S., at 887 (“Re- peatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausi- bility of a religious claim”); Hernandez v. Commissioner, 490 U.S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450 (1969). Moreover, in Thomas v. Review Bd. of Indiana Employ­ ment Security Div., 450 U.S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em- ployee, the state court had difficulty with the line that the employee drew between work that he found to be con- sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.35 Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the in- surance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to —————— 35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas. 38 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does. HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U.S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secu- lar issue, namely, proper church-state relations, the chal- lengers never articulated a religious objection to the sub- sidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U.S., at 689 (plurality opin- ion); see Allen, supra, at 249 (“[A]ppellants have not con- tended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Be- cause the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on provid- ing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs. V Since the HHS contraceptive mandate imposes a sub- stantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of further- ing that compelling governmental interest.” 42 U.S. C. Cite as: 573 U. S. ____ (2014) 39 Opinion of the Court §2000bb–1(b). A HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demon- strate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U.S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scru- tiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have ac- cess to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted). The objecting parties contend that HHS has not shown that the mandate serves a compelling government inter- est, and it is arguable that there are features of ACA that support that view. As we have noted, many employees— 40 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all. HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be out- weighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfa- thered plans, is simply the interest of employers in avoid- ing the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly signifi- cant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid. We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to con- sider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling govern- mental interest.” §2000bb–1(b)(2). B The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U.S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the ob- jecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that applica- tion of [a substantial] burden to the person . . . is the least Cite as: 573 U. S. ____ (2014) 41 Opinion of the Court restrictive means of furthering [a] compelling governmen- tal interest” (emphasis added)). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contracep- tives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance- coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Cover- age Provisions of the Affordable Care Act, April 2014, p. 2.36 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this —————— 36 Online at http://cbo.gov/publication/45231. 42 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court important goal. HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may —————— 37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasona- bly be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitle- ments to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections. Cite as: 573 U. S. ____ (2014) 43 Opinion of the Court be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own opera- tions to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its dis- posal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self- certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligi- ble organization, the group health plan, or plan partici- pants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38 —————— 38 HHS has concluded that insurers that insure eligible employers 44 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plain- tiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40 The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved con- traceptives, and they would continue to “face minimal —————— opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mecha- nism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3). 39 See n. 9, supra. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less re- strictive approach we describe accommodates the religious beliefs as- serted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 30. n. 27, but the Government itself apparently believes that when it “provides an excep- tion to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 13–6827, p. 10, now pending before the Court. Cite as: 573 U. S. ____ (2014) 45 Opinion of the Court logistical and administrative obstacles,” post, at 28 (inter- nal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of bene- fits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop health- insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress con- templated.” Ibid. C HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to sub- stantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employ- ers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate. It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all —————— 42 Cf. 42 U.S. C. §1396s (Federal “program for distribution of pediat- ric vaccines” for some uninsured and underinsured children). 46 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in- stance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance- coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage require- ments, such as immunizations, may be supported by dif- ferent interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. The principal dissent raises the possibility that discrim- ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti- cal goal. HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to for- profit employers with sincere religious objections is essen- tial to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive man- date to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems Cite as: 573 U. S. ____ (2014) 47 Opinion of the Court associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U.S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as de- voted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious be- lief.” Ibid.; see O Centro, 546 U.S., at 435. Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of govern- ment expenditures funded by tax dollars, allowing tax- payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very differ- ent. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Ra- ther, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contri- butions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii). 48 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.43 In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forc- ing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U.S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this —————— 43 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U.S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obliga- tions that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met. Cite as: 573 U. S. ____ (2014) 49 Opinion of the Court matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. * * * The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statu- tory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceed- ings consistent with this opinion. It is so ordered. Cite as: 573 U. S. ____ (2014) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–354 and 13–356 _________________ SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

We must decide in these cases whether the Religious Freedom Restoration Act of 1 (RFRA), 42 U.S. C. et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the 2 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Federal Government from taking any action that substan- tially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compel- ling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for- feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie- torships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not dis- criminate in this way against men and women who wish to run their businesses as for-profit corporations in the man- ner required by their religious beliefs. Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1. million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must consti- tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra- ceptives at issue here and, indeed, to all FDA-approved contraceptives. Cite as: 57 U. S. (2014) Opinion of the Court In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa- nies whose owners have no religious objections to provid- ing such coverage. The employees of these religious non- profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep- tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to reli- gious nonprofits that have religious objections to the con- traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corpo- ration’s religious beliefs no matter the impact that ac- commodation may have on thousands of women em- 4 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. I A Congress enacted RFRA in 1 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ­ ment Div., Dept. of Human Resources of Ore. v. 44 U.S. 872 (10), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like and Wiscon­ In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the chal- lenged action imposed a substantial burden on the prac- tice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment –40. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U.S., at 210–211, 24–26. In however, the Court rejected “the balancing —————— 1 See post, at 8 (“The exemption sought by Hobby Lobby and Conestoga would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”) Cite as: 57 U. S. (2014) 5 Opinion of the Court test set forth in Sherbert.” con- cerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consump- tion of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental inter- est.” City of Congress responded to by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S. C. (a)(2); see (a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” –1(a).2 If the Govern- ment substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that appli- cation of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern- —————— 2 The Act defines “government” to include any “department” or “agency” of the United States. –2(1). 6 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court mental interest.” –1(b). As enacted in 1, RFRA applied to both the Federal Government and the States, but the constitutional author- ity invoked for regulating federal and state agencies dif- fered. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agen- cy’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First –517. In City of however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of uncon- stitutional conduct under the Free Exercise Clause as interpreted in” at 5–54. See at 52. Following our decision in City of Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See 544 U.S. 70, 715–716 And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See –2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition —————— In City of we wrote that RFRA’s “least restrictive means requirement was not used in the pre- jurisprudence RFRA purported to codify.” On this understanding of our pre- cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4 See, ; Guam v. Guerrero, Cite as: 57 U. S. (2014) 7 Opinion of the Court made reference to the First See – 2(4) (14 ed.) (defining “exercise of religion” as “the exer- cise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of reli- gion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” –5(7)(A). And Congress mandated that this con- cept “be construed in favor of a broad protection of reli- gious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” – (g).5 B At issue in these cases are HHS regulations promul- gated under the Patient Protection and Affordable Care Act of (ACA), ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U.S. C. (c)(2). Any covered employer that does not provide such coverage must pay a substan- tial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ- —————— 5 The principal dissent appears to contend that this rule of construc- tion should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U.S. C. –2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA. 8 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ual.” And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full- time employees. (c)(1). Unless an exception applies, ACA requires an employ- er’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U.S. C. Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See –8726 In August 2011, based on the Institute’s recommenda- tions, the HRSA promulgated the Women’s Preventive Services Guidelines. See at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonex- empt employers are generally required to provide “cover- age, without cost sharing” for “[a]ll Food and Drug Ad- ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and coun- seling.” (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertiliza- tion of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS Cite as: 57 U. S. (2014) Opinion of the Court in No. 1–54, pp. –10, n. 4;6 FDA, Birth Control: Medi- cines to Help You.7 HHS authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” (a). That category encompasses “churches, their integrated auxiliaries, and conventions or associ- ations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U.S. C. (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines. In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contracep- tive mandate. See (b); 78 Fed. Reg. 874 An “eligible organization” means a nonprofit organization that “holds itself out as a religious organi- zation” and “opposes providing coverage for some or all of any contraceptive services required to be covered on account of religious objections.” (b). To qualify for this accommodation, an employer must certify that it is such an organization. When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan —————— 6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 1–54 and the Brief for Respondents in No. 1–56. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments. 7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm1215.htm. The owners of the companies in- volved in these cases and others who believe that life begins at concep- tion regard these four methods as causing abortions, but federal regula- tions, which define pregnancy as beginning at implantation, see, 62 Fed. Reg. 8611 ; (f) do not so classify them. 10 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. Al- though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. In addition to these exemptions for religious organiza- tions, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfa- thered health plans”—those that existed prior to March 2, and that have not made specified changes after that date—need not comply with many of the Act’s re- quirements, including the contraceptive mandate. 42 U.S. C. (e). And employers with fewer than 50 employees are not required to provide health insurance —————— 8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organi- zation’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiar- ies. (to be codified in – 271A(b)(2)). The regulations establish a mechanism for these third- party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See (to be codified in 26 CFR (b)()). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. (2014). Cite as: 57 U. S. (2014) 11 Opinion of the Court at all. 26 U.S. C. All told, the contraceptive mandate “presently does not apply to tens of millions of people.” This is attributable, in large part, to grand- fathered health plans: Over one-third of the 14 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in Brief for HHS in No. 1–54, at 5; Kaiser Family Foun- dation & Health Research & Educational Trust, Employer Health Benefits, Annual Survey 4, 221.10 The count for employees working for firms that do not have to pro- vide insurance at all because they employ fewer than 50 employees is 4 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Busi- nesses 1.11 II A Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages shares humanity with those who conceived it.”12 Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 50 employees. Conestoga is organized under Pennsylvania —————— 10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out. 11 Online at http : / / www whitehouse gov / files / documents / health _ reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-and- resolutions/statement-on-abortion/. 12 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO. The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” The company’s “Vi- sion and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 1–56, p. 4 (complaint). As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” and n. 5 It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” The Hahns have accordingly excluded from the group- health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifa- cients. at The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin applica- tion of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA- approved contraceptives that may operate after the fertili- zation of an egg.1 These include two forms of emergency —————— 1 The Hahns and Conestoga claimed that the contraceptive Cite as: 57 U. S. (2014) 1 Opinion of the Court contraception commonly called “morning after” pills and two types of intrauterine devices.14 In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” The District Court denied a prelimi- nary injunction, see and the Third Circuit affirmed in a divided opinion, holding that “for- profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First The Third Circuit rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. B David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and- crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 1,000 employees. 72 F.d, Hobby Lobby is organized as a for-profit corpora- tion under Oklahoma law. One of David’s sons started an affiliated business, Mar- del, which operates 5 Christian bookstores and employs close to 400 people. Mardel is organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the —————— mandate violates the Fifth Amendment and the Administrative Proce- dure Act, 5 U.S. C. but those claims are not before us. 14 See, WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 081/new-morning-after-pill-ella-wins-fda-approval. 14 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 1–54, p. 8.15 Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operat- ing the company in a manner consistent with Biblical principles.” App. in No. 1–54, pp. 14–15 (complaint). Each family member has signed a pledge to run the busi- nesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. In accordance with those commit- ments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. ; App. in No. 1– 54, at 16–17. The businesses refuse to engage in prof- itable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facili- tate access to contraceptive drugs or devices that operate after that They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. at 1125. Although their group-health-insurance plan pre- dates the enactment of ACA, it is not a grandfathered plan —————— 15 TheGreens operate Hobby Lobby and Mardel through a manage- ment trust, of which each member of the family serves as trustee. 72 F.d 1114, 1122 The family provided that the trust would be governed according to their religious principles. Cite as: 57 U. S. (2014) 15 Opinion of the Court because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the con- traceptive mandate under RFRA and the Free Exercise 16 The District Court denied a preliminary injunc- tion, see and the plaintiffs appealed, moving for initial en banc considera- tion. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law. The court then held that the corporations had estab- lished a likelihood of success on their RFRA claim. 72 F.d, at 1140–1147. The court concluded that the contra- ceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annu- ally if they “drop[ped] health-insurance benefits for all employees.” The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. at –1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the —————— 16 They raised a claim under the Administrative Procedure Act, 5 U.S. C. 16 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court court reversed and remanded for the District Court to consider the remaining factors of the preliminary- injunction test.17 We granted certiorari. 571 U. S. III A RFRA prohibits the “Government [from] substantially burden[ing] 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 governmental interest; and (2) is the least restrictive means of furthering that compelling governmental inter- est.” 42 U.S. C. §–1(a), (b) The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel. HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal mat- ter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences. Consider this Court’s decision in v. Brown, —————— 17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 72 F.d, (Gorsuch, J., concurring); (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see (Gorsuch, J., concurring). Cite as: 57 U. S. (2014) 17 Opinion of the Court In that case, five Orthodox Jewish merchants who ran small retail busi- nesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still sub- ject to the Act (for example, the District of Columbia, see 42 U.S. C. –2(2)), the merchants would be enti- tled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with- out in any way changing the size or nature of their busi- nesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations. As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug- gests? An examination of RFRA’s text, to which we turn —————— 18 As discussed, n. in City of we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was re- quired by our pre- decisions. Although the author of the principal dissent joined the Court’s opinion in City of she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situa- tions that fall squarely within the holdings of pre- cases. See infra, at 25–28. 18 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court in the next part of this opinion, reveals that Congress did no such thing. As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An estab- lished body of law specifies the rights and obligations of the people (including shareholders, officers, and employ- ees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu- tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei- zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. In holding that Conestoga, as a “secular, for-profit cor- poration,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F.d, at 85 All of this is true—but quite beside the Corpora- Cite as: 57 U. S. (2014) 1 Opinion of the Court tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. B 1 As we noted above, RFRA applies to “a person’s” exer- cise of religion, 42 U.S. C. §–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n deter- mining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U.S. C. Under the Dictionary Act, “the wor[d] ‘person’ in- clude[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” ; see FCC v. AT&T Inc., 562 U. S. (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard. We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the mean- ing of RFRA. See Brief for HHS in No. 1–54, at 17; 20 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Reply Brief in No. 1–54, at 7–8.1 This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. 54 U.S. 71, 78 (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”). 2 The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise reli- gion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can —————— 1 Cf. Brief for Federal Petitioners in O O. T. 2004, No. 04– 4, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–55, p. (stating that the petitioner was an “ecclesi- astical corporation”). 20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 1–54, at 28, 40. Cite as: 57 U. S. (2014) 21 Opinion of the Court be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli- gious “autonomy often furthers individual religious freedom as well.” Post, at 15 (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their re- ligious freedom “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con- estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21 If the corporate form is not enough, what about the profit-making objective? In we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profes- sion but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Business practices that are compelled or limited by the tenets of a religious doctrine fall comforta- bly within that definition. Thus, a law that “operates so as to make the practice of religious beliefs more expen- sive” in the context of business activities imposes a burden on the exercise of religion. ; see United ; infra, at 26– 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rights”). If, as recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same? Some lower court judges have suggested that RFRA does not protect for-profit corporations because the pur- pose of such corporations is simply to make money.2 This —————— 22 It is revealing that the principal dissent cannot even bring itself to acknowledge that was correct in entertaining the merchants’ claims. See post, at 1 (dismissing the relevance of in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”). 2 See, 724 F.d, at 85 (“We do not see how a for-profit, ‘artifi- cial being,’ that was created to make money” could exercise reli- gion); 708 F.d 850, (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam 70 F.d 618, (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see 72 F.d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”). The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–1 (internal quotation marks omitted). The first half of this statement is a tautology; for- profit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 1–56, p. 4. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to Honoring the Lord in all we do by Cite as: 57 U. S. (2014) 2 Opinion of the Court argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implica- tion authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations p. 224 ; see 1A W. Fletcher, Cyclopedia of the Law of Corporations While it is certainly true that a central objective of for- profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitar- ian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy- conservation measures that go beyond what the law re- quires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corpo- —————— operating in a manner consistent with Biblical principles.” App. in No. 1–54, p. 15. The dissent believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Black- stone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–45 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows for- profit corporations to “perpetuat[e] religious values.” 24 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave un- protected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candi- dates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between estab- lishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corpora- tion,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25 In any event, the objectives that may properly be pur- —————— 24 See, M. Sanders, Joint Ventures Involving Tax-Exempt Organ- izations 555 (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philan- thropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR 501(c)()–1(c)(). 25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; Va. Code Ann. §1–787, 1.1–, 1.1–782 (Lexis 2011) (“A benefit corpora- tion shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. This purpose is in addition to [the purpose of engaging in any lawful busi- ness].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educa- tional purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation”); S. C. Code Ann. §§–8–00 ( Cum. Supp.), ––101 –8–10 ( Cum. Supp.) (similar). Cite as: 57 U. S. (2014) 25 Opinion of the Court sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in con- formity with the owners’ religious principles. 15 Pa. Cons. Stat. §101 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, 1005 (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized to conduct or promote any lawful business or purposes”); see §1006(A)(); Brief for State of Oklahoma as Amicus Curiae in No. 1–54. HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre- Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws. First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre- interpretation of that When first enacted, RFRA defined the “exercise of reli- gion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U.S. C. –2(4) (14 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, Antiter- rorism and Effective Death Penalty Act of 28 26 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court U. S. C. (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amend- ment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U.S. C. –2(4) (2000 ed.) (in- corporating –5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre- free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “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.” – (g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre- decisions. Third, the one pre- case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 66 U.S. 617 the Massachusetts Sunday closing law was chal- lenged by a kosher market that was organized as a for- profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that —————— 26 See Brief for Appellants in Gallagher, O. T. 1 No. 11, pp. 16, 28– 1 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”). Cite as: 57 U. S. (2014) 27 Opinion of the Court argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in and reserved decision on the question whether the corporation had “standing” to raise the claim. See 66 U.S., at 61. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See at (Bren- nan, J., joined by Stewart, J., dissenting); v. Maryland, 66 U.S. 420, (Douglas, J., dissenting as to related cases including Gallagher). Fi- nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See 66 U.S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre- case in which the issue was raised—a majority of the Justices did not find it nec- essary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim. Finally, the results would be absurd if RFRA merely restored this Court’s pre- decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before For example, we are not aware of any pre- case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons beyond RFRA’s protec- tive reach simply because the Court never addressed their rights before ? Presumably in recognition of the weakness of this ar- 28 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applica- ble laws. By contrast, HHS contends, statutes like Title VII, 42 U.S. C. expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 1–56, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, 42 U.S. C. §00a–7(b)(2); §28n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations. —————— 27 The principal dissent points out that “the exemption codified in §28n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for- profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” This argument fails to recognize that the protection provided by §28n(a) differs significantly from the protection provided by RFRA. Section 28n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimina- tion under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest. In addition, the dissent’s argument proves too much. Section 28n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §28n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits. Cite as: 57 U. S. (2014) 2 Opinion of the Court 4 Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the reli- gious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 1–56, at 0. These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corpo- rate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occur- ring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s ap- plicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28 HHS has provided no evidence that the purported problem of determining the sincerity of an asserted reli- gious belief moved Congress to exclude for-profit corpora- tions from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category —————— 28 To qualify for RFRA’s protection, an asserted belief must be “sin- cere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., United 8 F.d 717, 0 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.2 Nevertheless, after our decision in City of Con- gress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Con- gress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 1–54, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits? HHS and the principal dissent express concern about the possibility of disputes among the owners of corpora- tions, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, ibid; §:2; Del. Code Ann., Tit. 8, §51 (2011) ; Green v. White, 8–84 ; Abate v. Walton, WL 520, *5 ; – 820 Cite as: 57 U. S. (2014) 1 Opinion of the Court may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes. For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.0 IV Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U.S. C. – 1(a). We have little trouble concluding that it does. —————— 0 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amend- ment—or even the most likely. For one thing, the text of the amend- ment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but the government’s interest and how nar- rowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other con- texts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U.S. C. –(b) It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies. 2 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court A As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They there- fore object on religious grounds to providing health insur- ance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 1–54, at n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U.S. C. For Hobby Lobby, the bill could amount to $1. million per day or about $475 million per year; for Conestoga, the assessment could be $0,000 per day or $ million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial. It is true that the plaintiffs could avoid these assess- ments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a sub- sidy on one of the government-run exchanges, this course would entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. B Although these totals are high, amici supporting HHS Cite as: 57 U. S. (2014) Opinion of the Court have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily elimi- nate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, n. 2 ; 52, n. 1 (17); 64 U.S. 61, 70 (1), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.1 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insur- ance plans altogether. Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they never- theless did so—in part, no doubt, for conventional business —————— 1 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 4 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court reasons, but in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 1–56, p. 11g; App. in No. 1–54, at 1. Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that em- ployees value. If the companies simply eliminated that benefit and forced employees to purchase their own insur- ance on the exchanges, without offering additional com- pensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 1–54, at 15. The companies could attempt to make up for the elimi- nation of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U.S. C. Likewise, employers can deduct the cost of providing health insurance, see but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro- vided; that difference must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.2 —————— 2 Attempting to compensate for dropped insurance by raising wages would present administrative difficulties. In order to provide full Cite as: 57 U. S. (2014) 5 Opinion of the Court In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substan- tial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin- cerely held religious beliefs or making all of their employ- ees lose their existing healthcare plans. C In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 1–54, pp. 1–4; post, at 22–2. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four meth- ods at issue. —————— compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer- provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same reli- gious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required 6 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.4 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi- —————— to do if not exempted (provide insurance coverage for particular contra- ceptives) and the ultimate event that they find morally wrong (destruc- tion of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemp- tion from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contracep- tive coverage. 78 Fed. Reg. 871. When this was done, the Govern- ment made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 4 See, Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 20–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 5, 55 (14) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 41 (15) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”). Cite as: 57 U. S. (2014) 7 Opinion of the Court pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, (“Re- peatedly and in many different contexts, we have warned that courts must not presume to determine the plausi- bility of a religious claim”); ; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, U.S. 440, Moreover, in U.S. 707 we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em- ployee, the state court had difficulty with the line that the employee drew between work that he found to be con- sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.”5 Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the in- surance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function in this context is to —————— 5 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas. 8 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does. HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise See Tilton v. Richardson, 40 U.S. 672, ; Board of Ed. of Central School Dist. No. 2 U.S. 26, 248–24 (168). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secu- lar issue, namely, proper church-state relations, the chal- lengers never articulated a religious objection to the sub- sidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 40 U.S., at (plurality opin- ion); see (“[A]ppellants have not con- tended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Be- cause the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on provid- ing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs. V Since the HHS contraceptive mandate imposes a sub- stantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of further- ing that compelling governmental interest.” 42 U.S. C. Cite as: 57 U. S. (2014) Opinion of the Court –1(b). A HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 1– 54, at 46, 4. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demon- strate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’, 546 U.S., at 40–41 (quoting –1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scru- tiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O at 41. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have ac- cess to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 1–54, at 14–15, 4; see Brief for HHS in No. 1–56, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 81 U.S. 47, 485–486 (165), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 1–54, at 50 (internal quotation marks omitted). The objecting parties contend that HHS has not shown that the mandate serves a compelling government inter- est, and it is arguable that there are features of ACA that support that view. As we have noted, many employees— 40 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all. HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be out- weighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfa- thered plans, is simply the interest of employers in avoid- ing the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly signifi- cant protections.” 75 Fed. Reg. 4540 But the contraceptive mandate is expressly excluded from this subset. We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to con- sider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling govern- mental interest.” –1(b)(2). B The least-restrictive-means standard is exceptionally demanding, see City of 521 U.S., at 52, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the ob- jecting parties in these cases. See §–1(a), (b) (requiring the Government to “demonstrat[e] that applica- tion of [a substantial] burden to the person is the least Cite as: 57 U. S. (2014) 41 Opinion of the Court restrictive means of furthering [a] compelling governmen- tal interest” ). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see –1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm1215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contracep- tives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance- coverage provisions will cost the Federal Government more than $1. trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Cover- age Provisions of the Affordable Care Act, April 2014, p. 2.6 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this —————— 6 Online at http://cbo.gov/publication/4521. 42 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court important goal. HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 1–54, at 15.7 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may —————— 7 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasona- bly be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitle- ments to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 4–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections. Cite as: 57 U. S. (2014) 4 Opinion of the Court be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. –(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own opera- tions to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its dis- posal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See at –10, and nn. 8–. Under that accommodation, the organization can self- certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.11(b)(4), (c)(1); 26 CFR §(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements on the eligi- ble organization, the group health plan, or plan partici- pants or beneficiaries.” (c)(2); 26 CFR (c)(2).8 —————— 8 HHS has concluded that insurers that insure eligible employers 44 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plain- tiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40 The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved con- traceptives, and they would continue to “face minimal —————— opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” With respect to self-insured plans, the regulations establish a mecha- nism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” at 882; see 26 CFR (b)(). See n. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 0. The less re- strictive approach we describe accommodates the religious beliefs as- serted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 0. n. 27, but the Government itself apparently believes that when it “provides an excep- tion to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 1–6827, p. 10, now pending before the Court. Cite as: 57 U. S. (2014) 45 Opinion of the Court logistical and administrative obstacles,” post, at 28 (inter- nal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, 45 CFR §§147.11(c)–(d); cf. 26 CFR §(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of bene- fits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop health- insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress con- templated.” C HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to sub- stantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employ- ers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate. It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all —————— 42 Cf. 42 U.S. C. §16s (Federal “program for distribution of pediat- ric vaccines” for some uninsured and underinsured children). 46 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in- stance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance- coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage require- ments, such as immunizations, may be supported by dif- ferent interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. The principal dissent raises the possibility that discrim- ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 2–. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti- cal goal. HHS raises for the first time in this Court the argument that applying the contraceptive mandate to for- profit employers with sincere religious objections is essen- tial to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive man- date to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems Cite as: 57 U. S. (2014) 47 Opinion of the Court associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U.S., at 2. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as de- voted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious be- lief.” ; see O 546 U.S., at 45. Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of govern- ment expenditures funded by tax dollars, allowing tax- payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very differ- ent. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Ra- ther, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contri- butions do not necessarily funnel into “undifferentiated funds.” Post, at 2. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” (c)(2)(ii). 48 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.4 In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forc- ing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 2–5. In making this plea, the dissent reiterates a point made forcefully by the Court in – 88 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S. C. (a)(5). The wisdom of Congress’s judgment on this —————— 4 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obliga- tions that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met. Cite as: 57 U. S. (2014) 4 Opinion of the Court matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. * * * The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statu- tory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 1–54 is affirmed; the judgment of the Third Circuit in No. 1–56 is reversed, and that case is remanded for further proceed- ings consistent with this opinion. It is so ordered. Cite as: 57 U. S. (2014) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES Nos. 1–54 and 1–56 SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 1–54 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 1–56 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

Justice Powell

majority

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY

https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/

https://www.courtlistener.com/api/rest/v3/clusters/110312/

1979-127

The case presents the question whether a regulation of the Public Service Commission of the state of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility. I In December 1973, the Commission, appeals here, ordered electric utilities in New York State to cease all advertising that "promot[es] the use of electricity." App. to Juris. *559 Statement 31a. The order was based on the Commission's finding that "the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter." Id., at 26a. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses "into two broad categories: promotional—advertising intended to stimulate the purchase of utility services—and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales."[1] App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commissioner's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in "off-peak" consumption, the ban limits the "beneficial side effects" of such growth in terms of more efficient use of existing powerplants. Id., at 37a. And since oil dealers are not under the Commissioner's jurisdiction and *560 thus remain free to advertise, it was recognized that the ban can achieve only "piecemeal conservationism." Still, the Commission adopted the restriction because it was deemed likely to "result in some dampening of unnecessary growth" in energy consumption. Ibid. The Commission's order explicitly permitted "informational" advertising designed to encourage "shifts of consumption" from peak demand times to periods of low electricity demand. Ibid. (emphasis in orginal). Information advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review "specific proposals by the companies for specifically described [advertising] programs that meet these criteria." Id., at 38a. When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost,[2] the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. Id., at 57a-58a. The state agency also thought that promotional advertising would give "misleading signals" to the public by appearing to encourage energy consumption at a time when conservation is needed. Id., at 59a. Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments.[3] The Commission's *561 order was upheld by the trial court and at the intermediate appellate level.[4] The New York Court of Appeals affirmed. It found little value to advertising in "the noncompetitive market in which electric corporations operate." Consolidated Edison Co. v. Public Service Comm'n, 47 N.Y. 2d 94, 110, 390 N.E.2d 749, 757 (1979). Since consumers "have no choice regarding the source of their electric power," the court denied that "promotional advertising of electricity might contribute to society's interest in `informed and reliable' economic decisionmaking." Ibid. The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. Id., at 110, 390 N.E.2d, at 758. The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, 444 U.S. 962 (1979), and now reverse. II The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976); Bates v. State Bar of Arizona 433 U.S. 350, 363-364 (1977); Friedman v. Rogers, 440 U.S. 1, 11 (1979). The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U. S., at 761-762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible *562 dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interest if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . ." Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374. Nevertheless, our decisions have recognized "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456 (1978); see Bates v. State Bar of Arizona, supra, at 381; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 38-39 (1979).[5] The *563 Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456, 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 464-465, or *564 commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973).[6] If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy Board that "[t]he advertising ban does not directly affect professional standards one way or the other." 425 U.S., at 769. In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. *565 "Restraints on advertising . . . are an ineffective way of deterring shoddy work." 433 U.S., at 378.[7] The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus, 436 U.S. 412, 438 (1978).[8] The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra, at 794-795, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like might be required" in promotional materials. 433 U.S., at 384. See Virginia Pharmacy Board, supra, at 773. And in Carey v. Population Services International, 431 U.S. 678, 701-702 (1977), we held that the State's "arguments . . . do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that *566 the State could implement more carefully drawn restrictions. See id., at 712 (POWELL,J., concurring in part and in judgment); id., at 716-717 (STEVENS, J., concurring in part and in judgment).[9] In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. III We now apply this four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising. A The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York court of Appeals questioned whether Central Hudson's advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission's order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market" *567 could not improve the decisionmaking of consumers. 47 N.Y. 2d, at 110, 390 N.E.2d, at 757. The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information. The reasoning falls short of establishing that apellant's advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil land natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Co. v. Public Utilities Comm'n, 294 U.S. 63, 72 (1935). Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms.[10] Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court's argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses— even regulated monopolies—are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly services at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we *568 may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.[11] Since no such extraordinary conditions have been identified in this case, appellant's monopoly position does not alter the First Amendment's protection for its commercial speech. B The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity— during peak or off-peak periods—means greater consumption of energy. The Commission argues, and the New York court agreed, that the State's interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country's dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial. The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities' rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would *569 be borne by all consumers through higher overall rates. Without promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness.[12] The State's concern that rates be fair and efficient represents a clear and substantial governmental interest. C Next, we focus on the relationship between the State's interests and the advertising ban. Under this criterion, the Commission's laudable concern over the equity and efficiency of appellant's rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant's rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant's rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant's rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant's promotional advertising. In contrast, the State's interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order. D We come finally to the critical inquiry in this case: whether the Commission's complete suppression of speech ordinarily protected by the First Amendment is no more extensive than *570 necessary to further the State's interest in energy conservation. The Commission's order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests. Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the "heat pump," which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a "backup" to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission's Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances. The Commission's order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility's advertising endanger conservation or mislead the public. To the extent that the Commission's order suppresses speech that in no way impairs the State's interest in energy conservation, the Commission's order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial expression. To further *571 its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. Banzhaf v. FCC, 132 U. S. App. D. C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969).[13] In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising.[14] IV Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority—and indeed the duty—to take appropriate action to further this goal. When, however, such action involves *572A the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.[15] Accordingly, the judgment of the New York Court of Appeals is Reversed. *572B MR. JUSTICE BRENNAN, concurring in the judgment.

The case presents the question whether a regulation of the Public Service Commission of the state of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility. I In December 1973, the Commission, appeals here, ordered electric utilities in New York State to cease all advertising that "promot[es] the use of electricity." App. to Juris. *559 Statement 31a. The order was based on the Commission's finding that "the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter." at 26a. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses "into two broad categories: promotional—advertising intended to stimulate the purchase of utility services—and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales."[1] App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commissioner's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in "off-peak" consumption, the ban limits the "beneficial side effects" of such growth in terms of more efficient use of existing powerplants. at 37a. And since oil dealers are not under the Commissioner's jurisdiction and *560 thus remain free to advertise, it was recognized that the ban can achieve only "piecemeal conservationism." Still, the Commission adopted the restriction because it was deemed likely to "result in some dampening of unnecessary growth" in energy consumption. The Commission's order explicitly permitted "informational" advertising designed to encourage "shifts of consumption" from peak demand times to periods of low electricity demand. Information advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review "specific proposals by the companies for specifically described [advertising] programs that meet these criteria." at 38a. When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost,[2] the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. at 57a-58a. The state agency also thought that promotional advertising would give "misleading signals" to the public by appearing to encourage energy consumption at a time when conservation is needed. at 59a. Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments.[3] The Commission's *561 order was upheld by the trial court and at the intermediate appellate level.[4] The New York Court of Appeals affirmed. It found little value to advertising in "the noncompetitive market in which electric corporations operate." Consolidated Edison Since consumers "have no choice regarding the source of their electric power," the court denied that "promotional advertising of electricity might contribute to society's interest in `informed and reliable' economic decisionmaking." The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. at The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, and now reverse. II The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy ; ; The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy -. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible *562 dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interest if only they are well enough informed, and the best means to that end is to open the channels of communication, rather than to close them." ; see Linmark Associates, Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Nevertheless, our decisions have recognized "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." ; see ; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment,[5] The *563 Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, ; or *564 commercial speech related to illegal activity, Pittsburgh Press[6] If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy that "[t]he advertising ban does not directly affect professional standards one way or the other." In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. *565 "Restraints on advertising are an ineffective way of deterring shoddy work."[7] The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus,[8] The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like might be required" in promotional materials. See Virginia Pharmacy And in we held that the State's "arguments do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that *566 the State could implement more carefully drawn restrictions. See ;[9] In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. III We now apply this four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising. A The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York court of Appeals questioned whether Central Hudson's advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission's order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market" *567 could not improve the decisionmaking of consumers. 47 N.Y. 2d, at 390 N.E.2d, at The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information. The reasoning falls short of establishing that apellant's advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil land natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms.[10] Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court's argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses— even regulated monopolies—are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly services at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we *568 may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.[] Since no such extraordinary conditions have been identified in this case, appellant's monopoly position does not alter the First Amendment's protection for its commercial speech. B The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity— during peak or off-peak periods—means greater consumption of energy. The Commission argues, and the New York court agreed, that the State's interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country's dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial. The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities' rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would *569 be borne by all consumers through higher overall rates. Without promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness.[12] The State's concern that rates be fair and efficient represents a clear and substantial governmental interest. C Next, we focus on the relationship between the State's interests and the advertising ban. Under this criterion, the Commission's laudable concern over the equity and efficiency of appellant's rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant's rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant's rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant's rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant's promotional advertising. In contrast, the State's interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order. D We come finally to the critical inquiry in this case: whether the Commission's complete suppression of speech ordinarily protected by the First Amendment is no more extensive than *570 necessary to further the State's interest in energy conservation. The Commission's order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests. Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the "heat pump," which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a "backup" to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission's Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances. The Commission's order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility's advertising endanger conservation or mislead the public. To the extent that the Commission's order suppresses speech that in no way impairs the State's interest in energy conservation, the Commission's order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial To further *571 its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. cert. denied sub nom. Tobacco Institute,[13] In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising.[14] IV Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority—and indeed the duty—to take appropriate action to further this goal. When, however, such action involves *5A the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.[15] Accordingly, the judgment of the New York Court of Appeals is Reversed. *5B MR. JUSTICE BRENNAN, concurring in the judgment.

per_curiam

per_curiam

Durham v. United States

https://www.courtlistener.com/opinion/108288/durham-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108288/

1970-059

Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction he filed this petition for a writ of certiorari. We are now advised that petitioner has died. It is true that the petition for certiorari is out of time under our Rule 22 (2), though timeliness under our rules, of course, presents no jurisdictional question. Subsequent to the affirmance of his conviction below, petitioner filed a timely petition for rehearing. Upon his inquiry to the Court of Appeals he was informed that he would be notified as to the disposition of his petition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the *482 order dated March 5, 1970, denying his petition for rehearing. Within three weeks from receipt of the denial from the Court of Appeals his petition for a writ of certiorari was docketed in this Court. On these facts waiver of our Rule 22 is proper. Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent mandamus action the petitioner died and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. Fletcher v. Bryan, 361 U.S. 126. In a state habeas corpus case we granted certiorari and vacated the judgment so that the state court could take whatever action it deemed proper. Garvin v. Cochran, 371 U.S. 27. Our practice in cases on direct review from state convictions has been to dismiss the proceedings. See Gersewitz v. New York, 326 U.S. 687. In an earlier case the Court announced the appeal had abated, Johnson v. Tennessee, 214 U.S. 485, while in another the Court stated the cause had abated. List v. Pennsylvania, 131 U.S. 396. In federal criminal cases we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. Singer v. United States, 323 U.S. 338, 346; American Tobacco Co. v. United States, 328 U.S. 781, 815 n. 11; United States v. Johnson, 319 U.S. 503, 520 n. 1. We have cited United States v. Pomeroy, 152 F. 279, rev'd sub nom. United States v. New York Central & H. R. R. Co., 164 F. 324, and United States v. Dunne, 173 F. 254, in suggesting such disposition on remand "as law and justice require," but beyond this we have basically allowed the scope of the abatement to be determined by the lower federal courts. The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F.2d 318. In reviewing the cases that court concluded *483 that the lower federal courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.[*]Id., at 320. As stated in List v. Pennsylvania, supra, on death of the convicted petitioner the "cause has abated." The unanimity of the lower federal courts which have worked with this problem over the years from Pomeroy to Crooker is impressive. We believe they have adopted the correct rule. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment below is vacated and the case is remanded to the District Court with directions to dismiss the indictment. It is so ordered. MR. JUSTICE MARSHALL, whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, believes that the case should be disposed of as follows: The petitioner having died while his petition for certiorari was pending before this Court, we dismiss the petition as moot and direct the Court of Appeals to note this action on its records. MR.

Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction he filed this petition for a writ of certiorari. We are now advised that petitioner has died. It is true that the petition for certiorari is out of time under our Rule 22 (2), though timeliness under our rules, of course, presents no jurisdictional question. Subsequent to the affirmance of his conviction below, petitioner filed a timely petition for rehearing. Upon his inquiry to the Court of Appeals he was informed that he would be notified as to the disposition of his petition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the *482 order dated March 5, 1970, denying his petition for rehearing. Within three weeks from receipt of the denial from the Court of Appeals his petition for a writ of certiorari was docketed in this Court. On these facts waiver of our Rule 22 is proper. Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent mandamus action the petitioner died and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. In a state habeas corpus case we granted certiorari and vacated the judgment so that the state court could take whatever action it deemed proper. Our practice in cases on direct review from state convictions has been to dismiss the proceedings. See In an earlier case the Court announced the appeal had abated, while in another the Court stated the cause had abated. In federal criminal cases we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. ; American Tobacco 815 n. 11; United 520 n. 1. We have cited United rev'd sub nom. United and United in suggesting such disposition on remand "as law and justice require," but beyond this we have basically allowed the scope of the abatement to be determined by the lower federal courts. The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in In reviewing the cases that court concluded *483 that the lower federal courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.[*]Id., at 320. As stated in on death of the convicted petitioner the "cause has abated." The unanimity of the lower federal courts which have worked with this problem over the years from Pomeroy to Crooker is impressive. We believe they have adopted the correct rule. Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment below is vacated and the case is remanded to the District Court with directions to dismiss the indictment. It is so ordered. MR. JUSTICE MARSHALL, whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, believes that the case should be disposed of as follows: The petitioner having died while his petition for certiorari was pending before this Court, we dismiss the petition as moot and direct the Court of Appeals to note this action on its records. MR.

Justice Stevens

majority

Forest Grove School Dist. v. T. A.

https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/

https://www.courtlistener.com/api/rest/v3/clusters/145855/

2008-076

The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U.S. C. §1400 et seq., requires States receiving federal funding to make a “free appropriate public education” (FAPE) available to all children with disabilities residing in the State, §1412(a)(1)(A). We have previously held that when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the dis trict to reimburse the parents for the cost of the private education. See School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S. 359, 370 (1985). The question presented in this case is whether the IDEA Amendments of 1997 (Amendments), 111 Stat. 37, categorically prohibit reimbursement for private-education costs if a child has not “previously received special education and related services under the authority of a public agency.” §1412(a)(10)(C)(ii). We hold that the Amendments impose no such categorical bar. 2 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court I Respondent T. A. attended public schools in the Forest Grove School District (School District or District) from the time he was in kindergarten through the winter of his junior year of high school. From kindergarten through eighth grade, respondent’s teachers observed that he had trouble paying attention in class and completing his as signments. When respondent entered high school, his difficulties increased. In December 2000, during respondent’s freshman year, his mother contacted the school counselor to discuss re spondent’s problems with his schoolwork. At the end of the school year, respondent was evaluated by a school psychologist. After interviewing him, examining his school records, and administering cognitive ability tests, the psychologist concluded that respondent did not need further testing for any learning disabilities or other health impairments, including attention deficit hyperactivity disorder (ADHD). The psychologist and two other school officials discussed the evaluation results with respondent’s mother in June 2001, and all agreed that respondent did not qualify for special-education services. Respondent’s parents did not seek review of that decision, although the hearing examiner later found that the School District’s evaluation was legally inadequate because it failed to address all areas of suspected disability, including ADHD. With extensive help from his family, respondent com pleted his sophomore year at Forest Grove High School, but his problems worsened during his junior year. In February 2003, respondent’s parents discussed with the School District the possibility of respondent completing high school through a partnership program with the local community college. They also sought private professional advice, and in March 2003 respondent was diagnosed with ADHD and a number of disabilities related to learning and memory. Advised by the private specialist that respon Cite as: 557 U. S. ____ (2009) 3 Opinion of the Court dent would do best in a structured, residential learning environment, respondent’s parents enrolled him at a private academy that focuses on educating children with special needs. Four days after enrolling him in private school, respon dent’s parents hired a lawyer to ascertain their rights and to give the School District written notice of respondent’s private placement. A few weeks later, in April 2003, respondent’s parents requested an administrative due process hearing regarding respondent’s eligibility for special-education services. In June 2003, the District engaged a school psychologist to assist in determining whether respondent had a disability that significantly interfered with his educational performance. Respon dent’s parents cooperated with the District during the evaluation process. In July 2003, a multidisciplinary team met to discuss whether respondent satisfied IDEA’s dis ability criteria and concluded that he did not because his ADHD did not have a sufficiently significant adverse impact on his educational performance. Because the School District maintained that respondent was not eligi ble for special-education services and therefore declined to provide an individualized education program (IEP),1 re spondent’s parents left him enrolled at the private acad emy for his senior year. The administrative review process resumed in Septem ber 2003. After considering the parties’ evidence, includ ing the testimony of numerous experts, the hearing officer issued a decision in January 2004 finding that respon dent’s ADHD adversely affected his educational perform ance and that the School District failed to meet its obliga —————— 1 An IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services. See 20 U.S. C. §§1412(a)(4), 1414(d). 4 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court tions under IDEA in not identifying respondent as a stu dent eligible for special-education services. Because the District did not offer respondent a FAPE and his private school placement was appropriate under IDEA, the hear ing officer ordered the District to reimburse respondent’s parents for the cost of the private-school tuition.2 The School District sought judicial review pursuant to §1415(i)(2), arguing that the hearing officer erred in grant ing reimbursement. The District Court accepted the hearing officer’s findings of fact but set aside the reim bursement award after finding that the 1997 Amendments categorically bar reimbursement of private-school tuition for students who have not “previously received special education and related services under the authority of a public agency.” §612(a)(10)(C)(ii), 111 Stat. 63, 20 U.S. C. §1412(a)(10)(C)(ii). The District Court further held that, “[e]ven assuming that tuition reimbursement may be ordered in an extreme case for a student not receiving special education services, under general principles of equity where the need for special education was obvious to school authorities,” the facts of this case do not support equitable relief. App. to Pet. for Cert. 53a. The Court of Appeals for the Ninth Circuit reversed and remanded for further proceedings. The court first noted that, prior to the 1997 Amendments, “IDEA was silent on the subject of private school reimbursement, but courts had granted such reimbursement as ‘appropriate’ relief under principles of equity pursuant to 20 U.S. C. §1415(i)(2)(C).” 523 F.3d 1078, 1085 (2008) (citing Bur lington, 471 U. S., at 370). It then held that the Amend ments do not impose a categorical bar to reimbursement —————— 2 Althoughit was respondent’s parents who initially sought reim bursement, when respondent reached the age of majority in 2003 his parents’ rights under IDEA transferred to him pursuant to Ore. Admin. Rule 581–015–2325(1) (2008). Cite as: 557 U. S. ____ (2009) 5 Opinion of the Court when a parent unilaterally places in private school a child who has not previously received special-education services through the public school. Rather, such students “are eligible for reimbursement, to the same extent as before the 1997 amendments, as ‘appropriate’ relief pursuant to §1415(i)(2)(C).” 523 F. 3d, at 1087–1088. The Court of Appeals also rejected the District Court’s analysis of the equities as resting on two legal errors. First, because it found that §1412(a)(10)(C)(ii) generally bars relief in these circumstances, the District Court wrongly stated that relief was appropriate only if the equities were sufficient to “ ‘override’ ” that statutory limi tation. The District Court also erred in asserting that reimbursement is limited to “ ‘extreme’ ” cases. Id., at 1088 (emphasis deleted). The Court of Appeals therefore re manded with instructions to reexamine the equities, in cluding the failure of respondent’s parents to notify the School District before removing respondent from public school. In dissent, Judge Rymer stated her view that reimbursement is not available as an equitable remedy in this case because respondent’s parents did not request an IEP before removing him from public school and respon dent’s right to a FAPE was therefore not at issue. Because the Courts of Appeals that have considered this question have reached inconsistent results,3 we granted certiorari to determine whether §1412(a)(10)(C) estab lishes a categorical bar to tuition reimbursement for stu dents who have not previously received special-education services under the authority of a public education agency. —————— 3 Compare Frank G. v. Board of Ed. of Hyde Park, 459 F.3d 356, 376 (CA2 2006) (holding that §1412(a)(10)(C)(ii) does not bar reimburse ment for students who have not previously received public special education services), and M. M. v. School Bd. of Miami-Dade Cty., Fla., 437 F.3d 1085, 1099 (CA11 2006) (per curiam) (same), with Greenland School Dist. v. Amy N., 358 F.3d 150, 159–160 (CA1 2004) (finding reimbursement barred in those circumstances). 6 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court 555 U. S. ___ (2009).4 II Justice Rehnquist’s opinion for a unanimous Court in Burlington provides the pertinent background for our analysis of the question presented. In that case, respon dent challenged the appropriateness of the IEP developed for his child by public-school officials. The child had pre viously received special-education services through the public school. While administrative review was pending, private specialists advised respondent that the child would do best in a specialized private educational setting, and respondent enrolled the child in private school without the school district’s consent. The hearing officer concluded that the IEP was not adequate to meet the child’s educa tional needs and that the school district therefore failed to provide the child a FAPE. Finding also that the private school placement was appropriate under IDEA, the hear ing officer ordered the school district to reimburse respon dent for the cost of the private-school tuition. We granted certiorari in Burlington to determine whether IDEA authorizes reimbursement for the cost of private education when a parent or guardian unilaterally enrolls a child in private school because the public school has proposed an inadequate IEP and thus failed to provide a FAPE. The Act at that time made no express reference to the possibility of reimbursement, but it authorized a court to “grant such relief as the court determines is ap propriate.” §1415(i)(2)(C)(iii).5 In determining the scope —————— 4 We previously granted certiorari to address this question in Board of Ed. of City School Dist. of New York v. Tom F., 552 U.S. 1 (2007), in which we affirmed without opinion the judgment of the Court of Ap peals for the Second Circuit by an equally divided vote. 5 At the time we decided Burlington, that provision was codified at §1415(e)(2). The 1997 Amendments renumbered the provision but did not alter its text. For ease of reference, we refer to the provision by its current section number, §1415(i)(2)(C)(iii). Cite as: 557 U. S. ____ (2009) 7 Opinion of the Court of the relief authorized, we noted that “the ordinary mean ing of these words confers broad discretion on the court” and that, absent any indication to the contrary, what relief is “appropriate” must be determined in light of the Act’s broad purpose of providing children with disabilities a FAPE, including through publicly funded private-school placements when necessary. 471 U. S., at 369. Accord ingly, we held that the provision’s grant of authority in cludes “the power to order school authorities to reimburse parents for their expenditures on private special-education services if the court ultimately determines that such place ment, rather than a proposed IEP, is proper under the Act.” Ibid. Our decision rested in part on the fact that administra tive and judicial review of a parent’s complaint often takes years. We concluded that, having mandated that partici pating States provide a FAPE for every student, Congress could not have intended to require parents to either accept an inadequate public-school education pending adjudica tion of their claim or bear the cost of a private education if the court ultimately determined that the private place ment was proper under the Act. Id., at 370. Eight years later, we unanimously reaffirmed the availability of reim bursement in Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993) (holding that reimbursement may be appropriate even when a child is placed in a private school that has not been approved by the State). The dispute giving rise to the present litigation differs from those in Burlington and Carter in that it concerns not the adequacy of a proposed IEP but the School District’s failure to provide an IEP at all. And, unlike respondent, the children in those cases had previously received public special-education services. These differences are insignifi cant, however, because our analysis in the earlier cases depended on the language and purpose of the Act and not the particular facts involved. Moreover, when a child 8 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. It is thus clear that the reasoning of Burlington and Carter applies equally to this case. The only question is whether the 1997 Amendments require a different result. III Congress enacted IDEA in 19706 to ensure that all children with disabilities are provided “ ‘a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their par ents or guardians are protected.’ ” Burlington, 471 U. S., at 367 (quoting 20 U.S. C. §1400(c) (1982 ed.), now codi fied as amended at §§1400(d)(1)(A), (B)). After examining the States’ progress under IDEA, Congress found in 1997 that substantial gains had been made in the area of spe cial education but that more needed to be done to guaran tee children with disabilities adequate access to appropri ate services. See S. Rep. No. 105–17, p. 5 (1997). The 1997 Amendments were intended “to place greater em phasis on improving student performance and ensuring that children with disabilities receive a quality public education.” Id., at 3. Consistent with that goal, the Amendments preserved the Act’s purpose of providing a FAPE to all children with disabilities. And they did not change the text of the provi sion we considered in Burlington, §1415(i)(2)(C)(iii), which gives courts broad authority to grant “appropriate” relief, including reimbursement for the cost of private special —————— 6 Thelegislation was enacted as the Education of the Handicapped Act, title VI of Pub. L. 91–230, 84 Stat. 175, and was renamed the Individuals with Disabilities Education Act in 1990, see §901(a)(3), Pub. L. 101–476, 104 Stat. 1142. Cite as: 557 U. S. ____ (2009) 9 Opinion of the Court education when a school district fails to provide a FAPE. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that inter pretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). Accordingly, absent a clear expression elsewhere in the Amendments of Congress’ intent to repeal some portion of that provision or to abrogate our decisions in Burlington and Carter, we will continue to read §1415(i)(2)(C)(iii) to authorize the relief respondent seeks. The School District and the dissent argue that one of the provisions enacted by the Amendments, §1412(a)(10)(C), effects such a repeal. Section 1412(a)(10)(C) is entitled “Payment for education of children enrolled in private schools without consent of or referral by the public agency,” and it sets forth a number of principles applicable to public reimbursement for the costs of unilateral private school placements. Section 1412(a)(10)(C)(i) states that IDEA “does not require a local educational agency to pay for the cost of education . . . of a child with a disability at a private school or facility if that agency made a free appro priate public education available to the child” and his parents nevertheless elected to place him in a private school. Section 1412(a)(10)(C)(ii) then provides that a “court or hearing officer may require [a public] agency to reimburse the parents for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available” and the child has “previously received special education and related services under the authority of [the] agency.” Finally, §1412(a)(10)(C)(iii) discusses circum stances under which the “cost of reimbursement described in clause (ii) may be reduced or denied,” as when a parent fails to give 10 days’ notice before removing a child from public school or refuses to make a child available for evaluation, and §1412(a)(10)(C)(iv) lists circumstances in 10 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court which a parent’s failure to give notice may or must be excused.7 Looking primarily to clauses (i) and (ii), the School District argues that Congress intended §1412(a)(10)(C) to provide the exclusive source of authority for courts to order reimbursement when parents unilaterally enroll a child in private school. According to the District, clause (i) provides a safe harbor for school districts that provide a FAPE by foreclosing reimbursement in those circum stances. Clause (ii) then sets forth the circumstance in which reimbursement is appropriate—namely, when a school district fails to provide a FAPE to a child who has previously received special-education services through the public school. The District contends that because §1412(a)(10)(C) only discusses reimbursement for children who have previously received special-education services through the public school, IDEA only authorizes reim bursement in that circumstance. The dissent agrees. For several reasons, we find this argument unpersua sive. First, the School District’s reading of the Act is not supported by its text and context, as the 1997 Amend ments do not expressly prohibit reimbursement under the circumstances of this case, and the District offers no evi dence that Congress intended to supersede our decisions in Burlington and Carter. Clause (i)’s safe harbor explic itly bars reimbursement only when a school district makes a FAPE available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child’s needs. The clause says nothing about the availabil ity of reimbursement when a school district fails to provide a FAPE. Indeed, its statement that reimbursement is not authorized when a school district provides a FAPE could be read to indicate that reimbursement is authorized —————— 7 The full text of §1412(a)(10)(C) is set forth in the Appendix, infra, at 18. Cite as: 557 U. S. ____ (2009) 11 Opinion of the Court when a school district does not fulfill that obligation. Clause (ii) likewise does not support the District’s posi tion. Because that clause is phrased permissively, stating only that courts “may require” reimbursement in those circumstances, it does not foreclose reimbursement awards in other circumstances. Together with clauses (iii) and (iv), clause (ii) is best read as elaborating on the gen eral rule that courts may order reimbursement when a school district fails to provide a FAPE by listing factors that may affect a reimbursement award in the common situation in which a school district has provided a child with some special-education services and the child’s par ents believe those services are inadequate. Referring as they do to students who have previously received special education services through a public school, clauses (ii) through (iv) are premised on a history of cooperation and together encourage school districts and parents to con tinue to cooperate in developing and implementing an appropriate IEP before resorting to a unilateral private placement.8 The clauses of §1412(a)(10)(C) are thus best read as elucidative rather than exhaustive. Cf. United —————— 8 The dissent asserts that, under this reading of the Act, “Congress has called for reducing reimbursement only for the most deserving . . . but provided no mechanism to reduce reimbursement to the least deserving.” Post, at 6 (opinion of SOUTER, J.). In addition to making unsubstantiated generalizations about the desert of parents whose children have been denied public special-education services, the dissent grossly mischaracterizes our view of §1412(a)(10)(C). The fact that clause (iii) permits a court to reduce a reimbursement award when a parent whose child has previously received special-education services fails to give the school adequate notice of an intended private place ment does not mean that it prohibits courts from similarly reducing the amount of reimbursement when a parent whose child has not previ ously received services fails to give such notice. Like clause (ii), clause (iii) provides guidance regarding the appropriateness of relief in a common factual scenario, and its instructions should not be understood to preclude courts and hearing officers from considering similar factors in other scenarios. 12 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court States v. Atlantic Research Corp., 551 U.S. 128, 137 (2007) (noting that statutory language may “perfor[m] a significant function simply by clarifying” a provision’s meaning).9 This reading of §1412(a)(10)(C) is necessary to avoid the conclusion that Congress abrogated sub silentio our deci sions in Burlington and Carter. In those cases, we con strued §1415(i)(2)(C)(iii) to authorize reimbursement when a school district fails to provide a FAPE and a child’s private-school placement is appropriate, without regard to the child’s prior receipt of services.10 It would take more than Congress’ failure to comment on the category of cases in which a child has not previously received special education services for us to conclude that the Amendments substantially superseded our decisions and in large part —————— 9 In arguing that §1412(a)(10)(C) is the exclusive source of authority for granting reimbursement awards to parents who unilaterally place a child in private school, the dissent neglects to explain that provision’s failure to limit the type of private-school placements for which parents may be reimbursed. School Comm. of Burlington v. Department of Ed. of Mass. held that courts may grant reimbursement under §1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate. See 471 U.S. 359, 369 (1985); see Florence County School Dist. Four v. Carter, 510 U.S. 7, 12–13 (1993). The latter requirement is essential to ensuring that reimbursement awards are granted only when such relief furthers the purposes of the Act. See Burlington, 471 U. S., at 369. That §1412(a)(10)(C) did not codify that requirement further indicates that Congress did not intend that provision to supplant §1415(i)(2)(C)(iii) as the sole authority on reimbursement awards but rather meant to augment the latter provision and our decisions construing it. 10 As discussed above, although the children in Burlington and Carter had previously received special-education services in public school, our decisions in no way depended on their prior receipt of services. Those holdings rested instead on the breadth of the authority conferred by §1415(i)(2)(C)(iii), the interest in providing relief consistent with the Act’s purpose, and the injustice that a contrary reading would produce, see Burlington, 471 U. S., at 369–370; see also Carter, 510 U. S., at 12– 14—considerations that were not altered by the 1997 Amendments. Cite as: 557 U. S. ____ (2009) 13 Opinion of the Court repealed §1415(i)(2)(C)(iii). See Branch v. Smith, 538 U.S. 254, 273 (2003) (“[A]bsent a clearly expressed con gressional intention, repeals by implication are not fa vored” (internal quotation marks and citation omitted)).11 We accordingly adopt the reading of §1412(a)(10)(C) that is consistent with those decisions.12 The School District’s reading of §1412(a)(10)(C) is also at odds with the general remedial purpose underlying IDEA and the 1997 Amendments. The express purpose of the Act is to “ensure that all children with disabilities have available to them a free appropriate public education —————— 11 For the same reason, we reject the District’s argument that because §1412(a)(10)(C)(ii) authorizes “a court or a hearing officer” to award reimbursement for private-school tuition, whereas §1415(i)(2)(C)(iii) only provides a general grant of remedial authority to “court[s],” the latter section cannot be read to authorize hearing officers to award reimbursement. That argument ignores our decision in Burlington, 471 U. S., at 363, 370, which interpreted §1415(i)(2)(C)(iii) to authorize hearing officers as well as courts to award reimbursement notwith standing the provision’s silence with regard to hearing officers. When Congress amended IDEA without altering the text of §1415(i)(2)(C)(iii), it implicitly adopted that construction of the statute. See Lorillard v. Pons, 434 U.S. 575, 580–581 (1978). 12 Looking to the Amendments’ legislative history for support, the School District cites two House and Senate Reports that essentially restate the text of §1412(a)(10)(C)(ii), H. R. Rep. No. 105–95, pp. 92–93 (1997); S. Rep. No. 105–17, p. 13 (1997), and a floor statement by Representative Mike Castle, 143 Cong. Rec. 8013 (1997) (stating that the “bill makes it harder for parents to unilaterally place a child in elite private schools at public taxpayer expense, lowering costs to local school districts”). Those ambiguous references do not undermine the meaning that we discern from the statute’s language and context. Notably, the agency charged with implementing IDEA has adopted respondent’s reading of the statute. In commentary to regulations implementing the 1997 Amendments, the Department of Education stated that “hearing officers and courts retain their authority, recog nized in Burlington . . . to award ‘appropriate’ relief if a public agency has failed to provide FAPE, including reimbursement . . . in instances in which the child has not yet received special education and related services.” 64 Fed. Reg. 12602 (1999); see 71 Fed. Reg. 46599 (2006). 14 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court that emphasizes special education and related services designed to meet their unique needs,” §1400(d)(1)(A)—a factor we took into account in construing the scope of §1415(i)(2)(C)(iii), see Burlington, 471 U. S., at 369. With out the remedy respondent seeks, a “child’s right to a free appropriate education . . . would be less than complete.” Id., at 370. The District’s position similarly conflicts with IDEA’s “child find” requirement, pursuant to which States are obligated to “identif[y], locat[e], and evaluat[e]” “[a]ll children with disabilities residing in the State” to ensure that they receive needed special-education services. §1412(a)(3)(A); see §1412(a)(10)(A)(ii). A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowl edgment of the paramount importance of properly identi fying each child eligible for services. Indeed, by immunizing a school district’s refusal to find a child eligible for special-education services no matter how compelling the child’s need, the School District’s interpretation of §1412(a)(10)(C) would produce a rule bordering on the irrational. It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether. That IDEA affords parents substantial proce dural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief, see post, at 11, is no answer. We roundly rejected that argument in Burlington, observing that the “review process is ponderous” and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s edu cation. 471 U. S., at 370. Like Burlington, see ibid., this Cite as: 557 U. S. ____ (2009) 15 Opinion of the Court case vividly demonstrates the problem of delay, as respon dent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school. The dissent all but ignores these shortcom ings of IDEA’s procedural safeguards. IV The School District advances two additional arguments for reading the Act to foreclose reimbursement in this case. First, the District contends that because IDEA was an exercise of Congress’ authority under the Spending Clause, U. S. Const., Art. I, §8, cl. 1, any conditions at tached to a State’s acceptance of funds must be stated unambiguously. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). Applying that prin ciple, we held in Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 304 (2006), that IDEA’s fee shifting provision, §1415(i)(3)(B), does not authorize courts to award expert-services fees to prevailing parents in IDEA actions because the Act does not put States on notice of the possibility of such awards. But Arlington is readily distinguishable from this case. In accepting IDEA funding, States expressly agree to provide a FAPE to all children with disabilities. See §1412(a)(1)(A). An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.” Burlington, 471 U. S., at 370–371. And States have in any event been on notice at least since our decision in Burlington that IDEA authorizes courts to order reimbursement of the costs of private special education services in appropriate circumstances. Penn hurst’s notice requirement is thus clearly satisfied. Finally, the District urges that respondent’s reading of the Act will impose a substantial financial burden on 16 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court public school districts and encourage parents to immedi ately enroll their children in private school without first endeavoring to cooperate with the school district. The dissent echoes this concern. See post, at 10. For several reasons, those fears are unfounded. Parents “are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.” Carter, 510 U. S., at 15. And even then courts retain discretion to reduce the amount of a reimbursement award if the equi ties so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school offi cials are properly performing their obligations under IDEA. See Schaffer v. Weast, 546 U.S. 49, 62–63 (2005) (STEVENS, J., concurring). As a result of these criteria and the fact that parents who “ ‘unilaterally change their child’s placement during the pendency of review proceed ings, without the consent of state or local school officials, do so at their own financial risk,’ ” Carter, 510 U. S., at 15 (quoting Burlington, 471 U. S., at 373–374), the incidence of private-school placement at public expense is quite small, see Brief for National Disability Rights Network et al. as Amici Curiae 13–14. V The IDEA Amendments of 1997 did not modify the text of §1415(i)(2)(C)(iii), and we do not read §1412(a)(10)(C) to alter that provision’s meaning. Consistent with our deci sions in Burlington and Carter, we conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school. Cite as: 557 U. S. ____ (2009) 17 Opinion of the Court When a court or hearing officer concludes that a school district failed to provide a FAPE and the private place ment was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted. As the Court of Appeals noted, the District Court did not properly consider the equities in this case and will need to under take that analysis on remand. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. 18 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court Appendix to opinion of the Court APPENDIX Title 20 U.S. C. §1412(a)(10)(C) provides: “(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency “(i) In general “Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. “(ii) Reimbursement for private school placement “If the parents of a child with a disability, who previ ously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school with out the consent of or referral by the public agency, a court or a hearing officer may require the agency to re imburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. “(iii) Limitation on reimbursement “The cost of reimbursement described in clause (ii) may be reduced or denied— “(I) if— “(aa) at the most recent IEP meeting that the par ents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement pro posed by the public agency to provide a free appro priate public education to their child, including stat ing their concerns and their intent to enroll their Cite as: 557 U. S. ____ (2009) 19 Opinion of the Court Appendix to opinion of the Court child in a private school at public expense; or “(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the in formation described in item (aa); “(II) if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or “(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.” Cite as: 557 U. S. ____ (2009) 1 SOUTER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–305 _________________ FOREST GROVE SCHOOL DISTRICT, PETITIONER v. T. A.

The Individuals with Disabilities Education Act (IDEA or Act), as amended, 20 U.S. C. et seq., requires States receiving federal funding to make a “free appropriate public education” (FAPE) available to all children with disabilities residing in the State, We have previously held that when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the dis trict to reimburse the parents for the cost of the private edu See School Comm. of The question presented in this case is whether the IDEA Amendments of 1997 (Amendments), categorically prohibit reimbursement for private-education costs if a child has not “previously received special education and related services under the authority of a public agency.” We hold that the Amendments impose no such categorical bar. 2 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court I Respondent T. A. attended public schools in the Forest Grove School District (School District or District) from the time he was in kindergarten through the winter of his junior year of high school. From kindergarten through eighth grade, respondent’s teachers observed that he had trouble paying attention in class and completing his as signments. When respondent entered high school, his difficulties increased. In December 2000, during respondent’s freshman year, his mother contacted the school counselor to discuss re spondent’s problems with his schoolwork. At the end of the school year, respondent was evaluated by a school psychologist. After interviewing him, examining his school records, and administering cognitive ability tests, the psychologist concluded that respondent did not need further testing for any learning disabilities or other health impairments, including attention deficit hyperactivity disorder (ADHD). The psychologist and two other school officials discussed the evaluation results with respondent’s mother in June 2001, and all agreed that respondent did not qualify for special-education services. Respondent’s parents did not seek review of that decision, although the hearing examiner later found that the School District’s evaluation was legally inadequate because it failed to address all areas of suspected disability, including ADHD. With extensive help from his family, respondent com pleted his sophomore year at Forest Grove High School, but his problems worsened during his junior year. In February 2003, respondent’s parents discussed with the School District the possibility of respondent completing high school through a partnership program with the local community college. They also sought private professional advice, and in March 2003 respondent was diagnosed with ADHD and a number of disabilities related to learning and memory. Advised by the private specialist that respon Cite as: 557 U. S. (2009) 3 Opinion of the Court dent would do best in a structured, residential learning environment, respondent’s parents enrolled him at a private academy that focuses on educating children with special needs. Four days after enrolling him in private school, respon dent’s parents hired a lawyer to ascertain their rights and to give the School District written notice of respondent’s private placement. A few weeks later, in April 2003, respondent’s parents requested an administrative due process hearing regarding respondent’s eligibility for special-education services. In June 2003, the District engaged a school psychologist to assist in determining whether respondent had a disability that significantly interfered with his educational performance. Respon dent’s parents cooperated with the District during the evaluation process. In July 2003, a multidisciplinary team met to discuss whether respondent satisfied IDEA’s dis ability criteria and concluded that he did not because his ADHD did not have a sufficiently significant adverse impact on his educational performance. Because the School District maintained that respondent was not eligi ble for special-education services and therefore declined to provide an individualized education program (IEP),1 re spondent’s parents left him enrolled at the private acad emy for his senior year. The administrative review process resumed in Septem ber 2003. After considering the parties’ evidence, includ ing the testimony of numerous experts, the hearing officer issued a decision in January finding that respon dent’s ADHD adversely affected his educational perform ance and that the School District failed to meet its obliga —————— 1 An IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services. See 20 U.S. C. 1414(d). 4 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court tions under IDEA in not identifying respondent as a stu dent eligible for special-education services. Because the District did not offer respondent a FAPE and his private school placement was appropriate under IDEA, the hear ing officer ordered the District to reimburse respondent’s parents for the cost of the private-school tuition.2 The School District sought judicial review pursuant to arguing that the hearing officer erred in grant ing reimbursement. The District Court accepted the hearing officer’s findings of fact but set aside the reim bursement award after finding that the 1997 Amendments categorically bar reimbursement of private-school tuition for students who have not “previously received special education and related services under the authority of a public agency.” 20 U.S. C. The District Court further held that, “[e]ven assuming that tuition reimbursement may be ordered in an extreme case for a student not receiving special education services, under general principles of equity where the need for special education was obvious to school authorities,” the facts of this case do not support equitable relief. App. to Pet. for Cert. 53a. The Court of Appeals for the Ninth Circuit reversed and remanded for further proceedings. The court first noted that, prior to the 1997 Amendments, “IDEA was silent on the subject of private school reimbursement, but courts had granted such reimbursement as ‘appropriate’ relief under principles of equity pursuant to 20 U.S. C. (citing Bur 471 U. S., at ). It then held that the Amend ments do not impose a categorical bar to reimbursement —————— 2 Althoughit was respondent’s parents who initially sought reim bursement, when respondent reached the age of majority in 2003 his parents’ rights under IDEA transferred to him pursuant to Ore. Admin. Rule 581–015–2325(1) Cite as: 557 U. S. (2009) 5 Opinion of the Court when a parent unilaterally places in private school a child who has not previously received special-education services through the public school. Rather, such students “are eligible for reimbursement, to the same extent as before the 1997 amendments, as ‘appropriate’ relief pursuant to –1088. The Court of Appeals also rejected the District Court’s analysis of the equities as resting on two legal errors. First, because it found that generally bars relief in these circumstances, the District Court wrongly stated that relief was appropriate only if the equities were sufficient to “ ‘override’ ” that statutory limi tation. The District Court also erred in asserting that reimbursement is limited to “ ‘extreme’ ” cases. (emphasis deleted). The Court of Appeals therefore re manded with instructions to reexamine the equities, in cluding the failure of respondent’s parents to notify the School District before removing respondent from public school. In dissent, Judge Rymer stated her view that reimbursement is not available as an equitable remedy in this case because respondent’s parents did not request an IEP before removing him from public school and respon dent’s right to a FAPE was therefore not at issue. Because the Courts of Appeals that have considered this question have reached inconsistent results,3 we granted certiorari to determine whether estab lishes a categorical bar to tuition reimbursement for stu dents who have not previously received special-education services under the authority of a public education agency. —————— 3 Compare Frank (holding that does not bar reimburse ment for students who have not previously received public special education services), and M. 437 F.3d (same), with Greenland School (finding reimbursement barred in those circumstances). 6 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court 555 U. S. (2009).4 II Justice Rehnquist’s opinion for a unanimous Court in Bur provides the pertinent background for our analysis of the question presented. In that case, respon dent challenged the appropriateness of the IEP developed for his child by public-school officials. The child had pre viously received special-education services through the public school. While administrative review was pending, private specialists advised respondent that the child would do best in a specialized private educational setting, and respondent enrolled the child in private school without the school district’s consent. The hearing officer concluded that the IEP was not adequate to meet the child’s educa tional needs and that the school district therefore failed to provide the child a FAPE. Finding also that the private school placement was appropriate under IDEA, the hear ing officer ordered the school district to reimburse respon dent for the cost of the private-school tuition. We granted certiorari in Bur to determine whether IDEA authorizes reimbursement for the cost of private education when a parent or guardian unilaterally enrolls a child in private school because the public school has proposed an inadequate IEP and thus failed to provide a FAPE. The Act at that time made no express reference to the possibility of reimbursement, but it authorized a court to “grant such relief as the court determines is ap propriate.” In determining the scope —————— 4 We previously granted certiorari to address this question in Board of Ed. of City School Dist. of New in which we affirmed without opinion the judgment of the Court of Ap peals for the Second Circuit by an equally divided vote. 5 At the time we decided Bur, that provision was codified at The 1997 Amendments renumbered the provision but did not alter its text. For ease of reference, we refer to the provision by its current section number, Cite as: 557 U. S. (2009) 7 Opinion of the Court of the relief authorized, we noted that “the ordinary mean ing of these words confers broad discretion on the court” and that, absent any indication to the contrary, what relief is “appropriate” must be determined in light of the Act’s broad purpose of providing children with disabilities a FAPE, including through publicly funded private-school placements when Accord ingly, we held that the provision’s grant of authority in cludes “the power to order school authorities to reimburse parents for their expenditures on private special-education services if the court ultimately determines that such place ment, rather than a proposed IEP, is proper under the Act.” Our decision rested in part on the fact that administra tive and judicial review of a parent’s complaint often takes years. We concluded that, having mandated that partici pating States provide a FAPE for every student, Congress could not have intended to require parents to either accept an inadequate public-school education pending adjudica tion of their claim or bear the cost of a private education if the court ultimately determined that the private place ment was proper under the Act. at Eight years later, we unanimously reaffirmed the availability of reim bursement in Florence County School Dist. (holding that reimbursement may be appropriate even when a child is placed in a private school that has not been approved by the State). The dispute giving rise to the present litigation differs from those in Bur and in that it concerns not the adequacy of a proposed IEP but the School District’s failure to provide an IEP at all. And, unlike respondent, the children in those cases had previously received public special-education services. These differences are insignifi cant, however, because our analysis in the earlier cases depended on the language and purpose of the Act and not the particular facts involved. Moreover, when a child 8 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. It is thus clear that the reasoning of Bur and applies equally to this case. The only question is whether the 1997 Amendments require a different result. III Congress enacted IDEA in 19706 to ensure that all children with disabilities are provided “ ‘a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their par ents or guardians are protected.’ ” Bur, 471 U. S., 67 (quoting 20 U.S. C. (c) (1982 ed.), now codi fied as amended at §(d)(1)(A), (B)). After examining the States’ progress under IDEA, Congress found in 1997 that substantial gains had been made in the area of spe cial education but that more needed to be done to guaran tee children with disabilities adequate access to appropri ate services. See S. Rep. No. 105–, p. 5 (1997). The 1997 Amendments were intended “to place greater em phasis on improving student performance and ensuring that children with disabilities receive a quality public edu” Consistent with that goal, the Amendments preserved the Act’s purpose of providing a FAPE to all children with disabilities. And they did not change the text of the provi sion we considered in Bur, which gives courts broad authority to grant “appropriate” relief, including reimbursement for the cost of private special —————— 6 Thelegislation was enacted as the Education of the Handicapped Act, title VI of Pub. L. 91–230, and was renamed the Individuals with Disabilities Education Act in 1990, see Pub. L. 101–476, Cite as: 557 U. S. (2009) 9 Opinion of the Court education when a school district fails to provide a FAPE. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that inter pretation when it re-enacts a statute without change.” Accordingly, absent a clear expression elsewhere in the Amendments of Congress’ intent to repeal some portion of that provision or to abrogate our decisions in Bur and we will continue to read to authorize the relief respondent seeks. The School District and the dissent argue that one of the provisions enacted by the Amendments, effects such a repeal. Section 1412(a)(10)(C) is entitled “Payment for education of children enrolled in private schools without consent of or referral by the public agency,” and it sets forth a number of principles applicable to public reimbursement for the costs of unilateral private school placements. Section 1412(a)(10)(C)(i) states that IDEA “does not require a local educational agency to pay for the cost of education of a child with a disability at a private school or facility if that agency made a free appro priate public education available to the child” and his parents nevertheless elected to place him in a private school. Section 1412(a)(10)(C)(ii) then provides that a “court or hearing officer may require [a public] agency to reimburse the parents for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available” and the child has “previously received special education and related services under the authority of [the] agency.” Finally, (iii) discusses circum stances under which the “cost of reimbursement described in clause (ii) may be reduced or denied,” as when a parent fails to give 10 days’ notice before removing a child from public school or refuses to make a child available for evaluation, and (iv) lists circumstances in 10 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court which a parent’s failure to give notice may or must be excused.7 Looking primarily to clauses (i) and (ii), the School District argues that Congress intended to provide the exclusive source of authority for courts to order reimbursement when parents unilaterally enroll a child in private school. According to the District, clause (i) provides a safe harbor for school districts that provide a FAPE by foreclosing reimbursement in those circum stances. Clause (ii) then sets forth the circumstance in which reimbursement is appropriate—namely, when a school district fails to provide a FAPE to a child who has previously received special-education services through the public school. The District contends that because only discusses reimbursement for children who have previously received special-education services through the public school, IDEA only authorizes reim bursement in that circumstance. The dissent agrees. For several reasons, we find this argument unpersua sive. First, the School District’s reading of the Act is not supported by its text and context, as the 1997 Amend ments do not expressly prohibit reimbursement under the circumstances of this case, and the District offers no evi dence that Congress intended to supersede our decisions in Bur and Clause (i)’s safe harbor explic itly bars reimbursement only when a school district makes a FAPE available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child’s needs. The clause says nothing about the availabil ity of reimbursement when a school district fails to provide a FAPE. Indeed, its statement that reimbursement is not authorized when a school district provides a FAPE could be read to indicate that reimbursement is authorized —————— 7 The full text of is set forth in the Appendix, infra, at 18. Cite as: 557 U. S. (2009) 11 Opinion of the Court when a school district does not fulfill that obligation. Clause (ii) likewise does not support the District’s posi tion. Because that clause is phrased permissively, stating only that courts “may require” reimbursement in those circumstances, it does not foreclose reimbursement awards in other circumstances. Together with clauses (iii) and (iv), clause (ii) is best read as elaborating on the gen eral rule that courts may order reimbursement when a school district fails to provide a FAPE by listing factors that may affect a reimbursement award in the common situation in which a school district has provided a child with some special-education services and the child’s par ents believe those services are inadequate. Referring as they do to students who have previously received special education services through a public school, clauses (ii) through (iv) are premised on a history of cooperation and together encourage school districts and parents to con tinue to cooperate in developing and implementing an appropriate IEP before resorting to a unilateral private placement.8 The clauses of are thus best read as elucidative rather than exhaustive. Cf. United —————— 8 The dissent asserts that, under this reading of the Act, “Congress has called for reducing reimbursement only for the most deserving but provided no mechanism to reduce reimbursement to the least deserving.” Post, at 6 (opinion of SOUTER, J.). In addition to making unsubstantiated generalizations about the desert of parents whose children have been denied public special-education services, the dissent grossly mischaracterizes our view of The fact that clause (iii) permits a court to reduce a reimbursement award when a parent whose child has previously received special-education services fails to give the school adequate notice of an intended private place ment does not mean that it prohibits courts from similarly reducing the amount of reimbursement when a parent whose child has not previ ously received services fails to give such notice. Like clause (ii), clause (iii) provides guidance regarding the appropriateness of relief in a common factual scenario, and its instructions should not be understood to preclude courts and hearing officers from considering similar factors in other scenarios. 12 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court (noting that statutory language may “perfor[m] a significant function simply by clarifying” a provision’s meaning).9 This reading of is necessary to avoid the conclusion that Congress abrogated sub silentio our deci sions in Bur and In those cases, we con strued to authorize reimbursement when a school district fails to provide a FAPE and a child’s private-school placement is appropriate, without regard to the child’s prior receipt of services.10 It would take more than Congress’ failure to comment on the category of cases in which a child has not previously received special education services for us to conclude that the Amendments substantially superseded our decisions and in large part —————— 9 In arguing that is the exclusive source of authority for granting reimbursement awards to parents who unilaterally place a child in private school, the dissent neglects to explain that provision’s failure to limit the type of private-school placements for which parents may be reimbursed. School Comm. of Bur v. Department of Ed. of Mass. held that courts may grant reimbursement under only when a school district fails to provide a FAPE and the private-school placement is appropriate. See 369 ; see Florence County School Dist. 12–13 The latter requirement is essential to ensuring that reimbursement awards are granted only when such relief furthers the purposes of the Act. See Bur, That did not codify that requirement further indicates that Congress did not intend that provision to supplant as the sole authority on reimbursement awards but rather meant to augment the latter provision and our decisions construing it. 10 As discussed above, although the children in Bur and had previously received special-education services in public school, our decisions in no way depended on their prior receipt of services. Those holdings rested instead on the breadth of the authority conferred by the interest in providing relief consistent with the Act’s purpose, and the injustice that a contrary reading would produce, see Bur, –; see also – 14—considerations that were not altered by the 1997 Amendments. Cite as: 557 U. S. (2009) 13 Opinion of the Court repealed See Branch v. Smith, 538 U.S. 254, 273 (2003) (“[A]bsent a clearly expressed con gressional intention, repeals by implication are not fa vored” (internal quotation marks and citation omitted)).11 We accordingly adopt the reading of that is consistent with those decisions.12 The School District’s reading of is also at odds with the general remedial purpose underlying IDEA and the 1997 Amendments. The express purpose of the Act is to “ensure that all children with disabilities have available to them a free appropriate public education —————— 11 For the same reason, we reject the District’s argument that because authorizes “a court or a hearing officer” to award reimbursement for private-school tuition, whereas only provides a general grant of remedial authority to “court[s],” the latter section cannot be read to authorize hearing officers to award reimbursement. That argument ignores our decision in Bur, 471 U. S., 63, which interpreted to authorize hearing officers as well as courts to award reimbursement notwith standing the provision’s silence with regard to hearing officers. When Congress amended IDEA without altering the text of it implicitly adopted that construction of the statute. See Lorillard v. Pons, –581 12 Looking to the Amendments’ legislative history for support, the School District cites two House and Senate Reports that essentially restate the text of H. R. Rep. No. 105–95, pp. 92–93 (1997); S. Rep. No. 105–, p. 13 (1997), and a floor statement by Representative Mike Castle, 143 Cong. Rec. 8013 (1997) (stating that the “bill makes it harder for parents to unilaterally place a child in elite private schools at public taxpayer expense, lowering costs to local school districts”). Those ambiguous references do not undermine the meaning that we discern from the statute’s language and context. Notably, the agency charged with implementing IDEA has adopted respondent’s reading of the statute. In commentary to regulations implementing the 1997 Amendments, the Department of Education stated that “hearing officers and courts retain their authority, recog nized in Bur to award ‘appropriate’ relief if a public agency has failed to provide FAPE, including reimbursement in instances in which the child has not yet received special education and related services.” (1999); see 14 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court that emphasizes special education and related services designed to meet their unique needs,” (d)(1)(A)—a factor we took into account in construing the scope of see Bur, With out the remedy respondent seeks, a “child’s right to a free appropriate education would be less than complete.” at The District’s position similarly conflicts with IDEA’s “child find” requirement, pursuant to which States are obligated to “identif[y], locat[e], and evaluat[e]” “[a]ll children with disabilities residing in the State” to ensure that they receive needed special-education services. see A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowl edgment of the paramount importance of properly identi fying each child eligible for services. Indeed, by immunizing a school district’s refusal to find a child eligible for special-education services no matter how compelling the child’s need, the School District’s interpretation of would produce a rule bordering on the irrational. It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether. That IDEA affords parents substantial proce dural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief, see post, at 11, is no answer. We roundly rejected that argument in Bur, observing that the “review process is ponderous” and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s edu 471 U. S., at Like Bur, see ibid., this Cite as: 557 U. S. (2009) 15 Opinion of the Court case vividly demonstrates the problem of delay, as respon dent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school. The dissent all but ignores these shortcom ings of IDEA’s procedural safeguards. IV The School District advances two additional arguments for reading the Act to foreclose reimbursement in this case. First, the District contends that because IDEA was an exercise of Congress’ authority under the Spending Clause, U. S. Const., Art. I, cl. 1, any conditions at tached to a State’s acceptance of funds must be stated unambiguously. See Pennhurst State School and Hospital v. Halderman, Applying that prin ciple, we held in Ar Central School Dist. Bd. of Ed. v. Murphy, that IDEA’s fee shifting provision, does not authorize courts to award expert-services fees to prevailing parents in IDEA actions because the Act does not put States on notice of the possibility of such awards. But Ar is readily distinguishable from this case. In accepting IDEA funding, States expressly agree to provide a FAPE to all children with disabilities. See An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.” Bur, 471 U. S., at –371. And States have in any event been on notice at least since our decision in Bur that IDEA authorizes courts to order reimbursement of the costs of private special education services in appropriate circumstances. Penn hurst’s notice requirement is thus clearly satisfied. Finally, the District urges that respondent’s reading of the Act will impose a substantial financial burden on 16 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court public school districts and encourage parents to immedi ately enroll their children in private school without first endeavoring to cooperate with the school district. The dissent echoes this concern. See post, at 10. For several reasons, those fears are unfounded. Parents “are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.” 510 U. S., at 15. And even then courts retain discretion to reduce the amount of a reimbursement award if the equi ties so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school offi cials are properly performing their obligations under IDEA. See (STEVENS, J., concurring). As a result of these criteria and the fact that parents who “ ‘unilaterally change their child’s placement during the pendency of review proceed ings, without the consent of state or local school officials, do so at their own financial risk,’ ” (quoting Bur, 471 U. S., 73–374), the incidence of private-school placement at public expense is quite small, see Brief for National Disability Rights Network et al. as Amici Curiae 13–14. V The IDEA Amendments of 1997 did not modify the text of and we do not read to alter that provision’s meaning. Consistent with our deci sions in Bur and we conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school. Cite as: 557 U. S. (2009) Opinion of the Court When a court or hearing officer concludes that a school district failed to provide a FAPE and the private place ment was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted. As the Court of Appeals noted, the District Court did not properly consider the equities in this case and will need to under take that analysis on remand. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. 18 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court Appendix to opinion of the Court APPENDIX Title 20 U.S. C. provides: “(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency “(i) In general “Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. “(ii) Reimbursement for private school placement “If the parents of a child with a disability, who previ ously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school with out the consent of or referral by the public agency, a court or a hearing officer may require the agency to re imburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. “(iii) Limitation on reimbursement “The cost of reimbursement described in clause (ii) may be reduced or denied— “(I) if— “(aa) at the most recent IEP meeting that the par ents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement pro posed by the public agency to provide a free appro priate public education to their child, including stat ing their concerns and their intent to enroll their Cite as: 557 U. S. (2009) 19 Opinion of the Court Appendix to opinion of the Court child in a private school at public expense; or “(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the in formation described in item (aa); “(II) if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or “(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.” Cite as: 557 U. S. (2009) 1 SOUTER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–305 FOREST GROVE SCHOOL DISTRICT, PETITIONER v. T. A.

Justice Brennan

majority

Frontiero v. Richardson

https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/

https://www.courtlistener.com/api/rest/v3/clusters/108781/

1972-113

The question before us concerns the right of a female member of the uniformed services[1] to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S. C. §§ 401, 403, and 10 U.S. C. §§ 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support. 37 U.S. C. § 401 (1); 10 U.S. C. § 1072 (2) (A). A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his support. *679 37 U.S. C. § 401; 10 U.S. C. § 1072 (2) (C).[2] Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F. Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840 (1972). We reverse. I In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S. C. § 401 et seq., and 10 U.S. C. § 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.[3] Thus, under 37 U.S. C. § 403, a member of the uniformed services with dependents is entitled to an *680 increased "basic allowance for quarters" and, under 10 U.S. C. § 1076, a member's dependents are provided comprehensive medical and dental care. Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.[4] Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.[5] In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction *681 against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,[6] a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "bread-winner" in the family—and the wife typically the "dependent" partner—"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." 341 F. Supp., at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District *682 Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." Ibid. II At the outset, appellants contend that classifications based upon sex, like classifications based upon race,[7] alienage,[8] and national origin,[9] are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71 (1971). In Reed, the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment. The Court noted that the Idaho statute "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject *683 to scrutiny under the Equal Protection Clause." 404 U.S., at 75. Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest. See Jefferson v. Hackney, 406 U.S. 535, 546 (1972); Richardson v. Belcher, 404 U. S. 78,81 (1971); Flemming v. Nestor, 363 U.S. 603, 611 (1960); McGowan v. Maryland, 366 U. S. 420,426 (1961); Dandridge v. Williams, 397 U.S. 471, 485 (1970). In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since "men [are] as a rule more conversant with business affairs than . . . women."[10] Indeed, appellee maintained that "it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are."[11] And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded that in general men are better qualified to act as an administrator than are women."[12] Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are . . . similarly situated." 404 U. S., *684 at 77. The Court therefore held that, even though the State's interest in achieving administrative efficiency "is not without some legitimacy," "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] . . . ." Id., at 76. This departure from "traditional" rational-basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.[13] Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and *685 independent career from that of her husband. . . . ". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring). As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself "preservative of other basic civil and political rights"[14]—until adoption of the Nineteenth Amendment half a century later. It is true, of course, that the position of women in America has improved markedly in recent decades.[15]*686 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,[16] women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.[17] See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1970). Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . ." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972). And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.[18] As a result, statutory distinctions *687 between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race, color, religion, sex, or national origin."[19] Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act "shall discriminate . . . between employees on the basis of sex."[20] And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."[21] Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal *688 branch of Government is not without significance to the question presently under consideration. Cf. Oregon v. Mitchell, 400 U.S. 112, 240, 248-249 (1970) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.); Katzenbach v. Morgan, 384 U.S. 641, 648-649 (1966). With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. III The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S. C. §§ 401, 403, and 10 U.S. C. §§ 1072, 1076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are . . . similarly situated." Reed v. Reed, 404 U. S., at 77. Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands *689 rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.[22] The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits.[23] And in light of the fact that the *690 dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process,[24] the Government's explanation of the statutory scheme is, to say the least, questionable. In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656 (1972). And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U.S. 618 (1969); Carrington v. Rash, 380 U.S. 89 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are . . . similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution]. . . ." Reed v. Reed, 404 U. S., at 77, 76. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative *691 convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.[25] Reversed. MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71. MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F. Supp. 201 (1972). MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the judgment.

The question before us concerns the right of a female member of the uniformed services[1] to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S. C. 401, 403, and 10 U.S. C. 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support. 37 U.S. C. 401 (1); 10 U.S. C. 1072 (2) (A). A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his support. *679 37 U.S. C. 401; 10 U.S. C. 1072 (2) (C).[2] Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. We noted probable jurisdiction. We reverse. I In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S. C. 401 et seq., and 10 U.S. C. 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.[3] Thus, under 37 U.S. C. 403, a member of the uniformed services with dependents is entitled to an *680 increased "basic allowance for quarters" and, under 10 U.S. C. 1076, a member's dependents are provided comprehensive medical and dental care. Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.[4] Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.[5] In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction *6 against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,[6] a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "bread-winner" in the family—and the wife typically the "dependent" partner—"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District *682 Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." II At the outset, appellants contend that classifications based upon sex, like classifications based upon race,[7] alienage,[8] and national origin,[9] are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in In the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment. The Court noted that the Idaho statute "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject *683 to scrutiny under the Equal Protection Clause." Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest. See ; ; ; ; In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since "men [are] as a rule more conversant with business affairs than women."[10] Indeed, appellee maintained that "it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are."[11] And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded that in general men are better qualified to act as an administrator than are women."[12] Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are similarly situated." 404 U. S., *684 at 77. The Court therefore held that, even though the State's interest in achieving administrative efficiency "is not without some legitimacy," "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution]" This departure from "traditional" rational-basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.[13] Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and *685 independent career from that of her husband. ". The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 ; G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself "preservative of other basic civil and political rights"[14]—until adoption of the Nineteenth Amendment half a century later. It is true, of course, that the position of women in America has improved markedly in recent decades.[15]*686 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,[16] women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.[17] See generally K. Amundsen, The Silenced Majority: Women and American Democracy ; The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility" And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.[18] As a result, statutory distinctions *687 between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race, color, religion, sex, or national origin."[19] Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act "shall discriminate between employees on the basis of sex."[20] And 1 of the Equal Rights Amendment, passed by Congress on March 22, and submitted to the legislatures of the States for ratification, declares that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."[21] Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal *688 branch of Government is not without significance to the question presently under consideration. Cf. ; With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. III The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S. C. 401, 403, and 10 U.S. C. 1072, 1076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are similarly situated." Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands *689 rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.[22] The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits.[23] And in light of the fact that the *690 dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process,[24] the Government's explanation of the statutory scheme is, to say the least, questionable. In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See ; On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution]." 76. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative *691 convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.[25] Reversed. MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the judgment.

Justice Rehnquist

dissenting

Taylor v. Louisiana

https://www.courtlistener.com/opinion/109133/taylor-v-louisiana/

https://www.courtlistener.com/api/rest/v3/clusters/109133/

1974-025

The Court's opinion reverses a conviction without a suggestion, much less a showing, that the appellant has been unfairly treated or prejudiced in any way by the *539 manner in which his jury was selected. In so doing, the Court invalidates a jury-selection system which it approved by a substantial majority only 13 years ago. I disagree with the Court and would affirm the judgment of the Supreme Court of Louisiana. The majority opinion canvasses various of our jury trial cases, beginning with Smith v. Texas, 311 U.S. 128 (1940). Relying on carefully chosen quotations, it concludes that the "unmistakable import" of our cases is that the fair-cross-section requirement "is an essential component of the Sixth Amendment right to a jury trial." I disagree. Fairly read, the only "unmistakable import" of those cases is that due process and equal protection prohibit jury-selection systems which are likely to result in biased or partial juries. Smith v. Texas, supra, concerned the equal protection claim of a Negro who was indicted by a grand jury from which Negroes had been systematically excluded. Glasser v. United States, 315 U.S. 60 (1942), dealt with allegations that the only women selected for jury service were members of a private organization which had conducted pro-prosecution classes for prospective jurors. Brown v. Allen, 344 U.S. 443 (1953), rejected the equal protection and due process contentions of several black defendants that members of their race had been discriminatorily excluded from their juries. Carter v. Jury Comm'n, 396 U.S. 320 (1970), similarly dealt with equal protection challenges to a jury-selection system, but the persons claiming such rights were blacks who had sought to serve as jurors. In Hoyt v. Florida, 368 U.S. 57 (1961), this Court gave plenary consideration to contentions that a system such as Louisiana's deprived a defendant of equal protection and due process. These contentions were rejected, despite circumstances which were much more suggestive of possible bias and prejudice than are those here—the defendant *540 in Hoyt was a woman whose defense to charges of murdering her husband was that she had been driven temporarily insane by his suspected infidelity and by his rejection of her efforts at reconciliation. Id., at 58-59. The complete swing of the judicial pendulum 13 years later must depend for its validity on the proposition that during those years things have changed in constitutionally significant ways. I am not persuaded of the sufficiency of either of the majority's proffered explanations as to intervening events. The first determinative event, in the Court's view, is Duncan v. Louisiana, 391 U.S. 145 (1968). Because the Sixth Amendment was there held applicable to the States, the Court feels free to dismiss Hoyt as a case which dealt with entirely different issues—even though in fact it presented the identical problem. But Duncan's rationale is a good deal less expansive than is suggested by the Court's present interpretation of that case. Duncan rests on the following reasoning: "The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those `"fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,"' Powell v. Alabama, 287 U.S. 45, 67 (1932); whether it is `basic in our system of jurisprudence,' In re Oliver, 333 U.S. 257, 273 (1948); and whether it is `a fundamental right, essential to a fair trial,' Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963); Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v. Texas, 380 U.S. 400, 403 (1965). . . . Because we believe that trial by *541 jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases . . . ." Id., at 148-149. (Emphasis added.) That this is a sturdy test, one not readily satisfied by every discrepancy between federal and state practice, was made clear not only in Williams v. Florida, 399 U.S. 78 (1970), and Apodaca v. Oregon, 406 U.S. 404 (1972), but also in Duncan itself. In explaining the conclusion that a jury trial is fundamental to our scheme of justice, and therefore should be required of the States, the Court pointed out that jury trial was designed to be a defense "against arbitrary law enforcement," 391 U.S., at 156, and "to prevent oppression by the Government." Id., at 155. The Court stated its belief that jury trial for serious offenses is "essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Id., at 158. I cannot conceive that today's decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials. Especially is this so when the criminal defendant involved makes no claims of prejudice or bias. The Court does accord some slight attention to justifying its ruling in terms of the basis on which the right to jury trial was read into the Fourteenth Amendment. It concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the "jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Ante, at 530. It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case. The best it can do is to *542 posit " `a flavor, a distinct quality,' " which allegedly is lost if either sex is excluded. Ante, at 532. However, this "flavor" is not of such importance that the Constitution is offended if any given petit jury is not so enriched. Ante, at 538. This smacks more of mysticism than of law. The Court does not even purport to practice its mysticism in a consistent fashion—presumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here. In Hoyt, this Court considered a stronger due process claim than is before it today, but found that fundamental fairness had not been offended. I do not understand how our intervening decision in Duncan can support a different result. After all, Duncan imported the Sixth Amendment into the Due Process Clause only because, and only to the extent that, this was perceived to be required by fundamental fairness. The second change since Hoyt that appears to under-gird the Court's turnabout is societal in nature, encompassing both our higher degree of sensitivity to distinctions based on sex, and the "evolving nature of the structure of the family unit in American society." Ante, at 535 n. 17. These are matters of degree, and it is perhaps of some significance that in 1961 Mr. Justice Harlan saw fit to refer to the "enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men." Hoyt, 368 U. S., at 61-62. Nonetheless, it may be fair to conclude that the Louisiana system is in fact an anachronism, inappropriate at this "time or place." Ante, at 537. But surely constitutional adjudication is a more canalized function than enforcing as against the States this Court's perception of modern life. *543 Absent any suggestion that appellant's trial was unfairly conducted, or that its result was unreliable, I would not require Louisiana to retry him (assuming the State can once again produce its evidence and witnesses) in order to impose on him the sanctions which its laws provide.

The Court's opinion reverses a conviction without a suggestion, much less a showing, that the appellant has been unfairly treated or prejudiced in any way by the *539 manner in which his jury was selected. In so doing, the Court invalidates a jury-selection system which it approved by a substantial majority only 13 years ago. I disagree with the Court and would affirm the judgment of the Supreme Court of Louisiana. The majority opinion canvasses various of our jury trial cases, beginning with Relying on carefully chosen quotations, it concludes that the "unmistakable import" of our cases is that the fair-cross-section requirement "is an essential component of the Sixth Amendment right to a jury trial." I disagree. Fairly read, the only "unmistakable import" of those cases is that due process and equal protection prohibit jury-selection systems which are likely to result in biased or partial juries. concerned the equal protection claim of a Negro who was indicted by a grand jury from which Negroes had been systematically excluded. dealt with allegations that the only women selected for jury service were members of a private organization which had conducted pro-prosecution classes for prospective jurors. rejected the equal protection and due process contentions of several black defendants that members of their race had been discriminatorily excluded from their juries. similarly dealt with equal protection challenges to a jury-selection system, but the persons claiming such rights were blacks who had sought to serve as jurors. In this Court gave plenary consideration to contentions that a system such as Louisiana's deprived a defendant of equal protection and due process. These contentions were rejected, despite circumstances which were much more suggestive of possible bias and prejudice than are those here—the defendant *540 in Hoyt was a woman whose defense to charges of murdering her husband was that she had been driven temporarily insane by his suspected infidelity and by his rejection of her efforts at reconciliation. The complete swing of the judicial pendulum 13 years later must depend for its validity on the proposition that during those years things have changed in constitutionally significant ways. I am not persuaded of the sufficiency of either of the majority's proffered explanations as to intervening events. The first determinative event, in the Court's view, is Because the Sixth Amendment was there held applicable to the States, the Court feels free to dismiss Hoyt as a case which dealt with entirely different issues—even though in fact it presented the identical problem. But Duncan's rationale is a good deal less expansive than is suggested by the Court's present interpretation of that case. Duncan rests on the following reasoning: "The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those `"fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,"' ; whether it is `basic in our system of jurisprudence,' In re Oliver, ; and whether it is `a fundamental right, essential to a fair trial,' ; ; Pointer v. (195). Because we believe that trial by *541 jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases" (Emphasis added.) That this is a sturdy test, one not readily satisfied by every discrepancy between federal and state practice, was made clear not only in and 40 U.S. 404 but also in Duncan itself. In explaining the conclusion that a jury trial is fundamental to our scheme of justice, and therefore should be required of the States, the Court pointed out that jury trial was designed to be a defense "against arbitrary law enforcement," 391 U.S., at 15, and "to prevent oppression by the Government." The Court stated its belief that jury trial for serious offenses is "essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." I cannot conceive that today's decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials. Especially is this so when the criminal defendant involved makes no claims of prejudice or bias. The Court does accord some slight attention to justifying its ruling in terms of the basis on which the right to jury trial was read into the Fourteenth Amendment. It concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the "jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Ante, at 530. It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case. The best it can do is to *542 posit " `a flavor, a distinct quality,' " which allegedly is lost if either sex is excluded. Ante, at 532. However, this "flavor" is not of such importance that the Constitution is offended if any given petit jury is not so enriched. Ante, at 538. This smacks more of mysticism than of law. The Court does not even purport to practice its mysticism in a consistent fashion—presumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here. In Hoyt, this Court considered a stronger due process claim than is before it today, but found that fundamental fairness had not been offended. I do not understand how our intervening decision in Duncan can support a different result. After all, Duncan imported the Sixth Amendment into the Due Process Clause only because, and only to the extent that, this was perceived to be required by fundamental fairness. The second change since Hoyt that appears to under-gird the Court's turnabout is societal in nature, encompassing both our higher degree of sensitivity to distinctions based on sex, and the "evolving nature of the structure of the family unit in American society." Ante, at 535 n. 17. These are matters of degree, and it is perhaps of some significance that in 191 Mr. Justice Harlan saw fit to refer to the "enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men." Hoyt, 38 U. S., at 1-2. Nonetheless, it may be fair to conclude that the Louisiana system is in fact an anachronism, inappropriate at this "time or place." Ante, at 537. But surely constitutional adjudication is a more canalized function than enforcing as against the States this Court's perception of modern life. *543 Absent any suggestion that appellant's trial was unfairly conducted, or that its result was unreliable, I would not require Louisiana to retry him (assuming the State can once again produce its evidence and witnesses) in order to impose on him the sanctions which its laws provide.

Justice White

majority

Phillips Petroleum Co. v. Mississippi

https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/

https://www.courtlistener.com/api/rest/v3/clusters/111988/

1987-028

The issue here is whether the State of Mississippi, when it entered the Union in 1817, took title to lands lying under waters that were influenced by the tide running in the Gulf of Mexico, but were not navigable in fact. I As the Mississippi Supreme Court eloquently put it: "Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit." Cinque Bambini Partnership v. State, 491 So. 2d 508, 510 (1986). More specifically, in question here is ownership of 42 acres of land underlying the north branch of Bayou LaCroix and 11 small drainage streams in southwestern Mississippi; the disputed tracts range from under one-half acre to almost 10 acres in size. Although the waters over these lands lie several miles north of the Mississippi Gulf Coast and are not navigable, they are nonetheless influenced by the tide, because they are adjacent and tributary to the Jourdan River, a navigable stream flowing into the Gulf. The Jourdan, in the area involved here, is affected by the ebb and flow of the tide. Record title to these tracts of land is held by petitioners, who trace their claims back to prestatehood Spanish land grants. The State of Mississippi, however, claiming that by virtue of the "equal-footing doctrine" it acquired at the time of statehood and held in public trust all land lying under any waters influenced by the tide, whether navigable or not, issued oil and gas leases that included the property at issue. This quiet title suit, brought by petitioners, ensued. The Mississippi Supreme Court, affirming the Chancery Court with respect to the lands at issue here,[1] held that by *473 virtue of becoming a State, Mississippi acquired "fee simple title to all lands naturally subject to tidal influence, inland to today's mean high water mark . . . ." Ibid., Petitioners' submission that the State acquired title to only lands under navigable waters was rejected. We granted certiorari to review the Mississippi Supreme Court's decision, 479 U.S. 1084 (1987), and now affirm the judgment below. II As petitioners recognize, the "seminal case in American public trust jurisprudence is Shively v. Bowlby, 152 U.S. 1 (1894)." Reply Brief for Petitioners 11. The issue in Shively v. Bowlby, 152 U.S. 1 (1894), was whether the State of Oregon or a prestatehood grantee from the United States of riparian lands near the mouth of the Columbia River at Astoria, Oregon, owned the soil below the high-water mark. Following an extensive survey of this Court's prior cases, the English common law, and various cases from the state courts, the Court concluded: "At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation. . . . Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to *474 the rights surrendered by the Constitution of the United States. ..... "The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them, within their respective jurisdictions." Id., at 57. Shively rested on prior decisions of this Court, which had included similar, sweeping statements of States' dominion over lands beneath tidal waters. Knight v. United States Land Association, 142 U.S. 161, 183 (1891), for example, had stated that "[i]t is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original States were reserved to the several States, and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original States possess within their respective borders." On many occasions, before and since, this Court has stated or restated these words from Knight and Shively.[2] Against this array of cases, it is not surprising that Mississippi claims ownership of all of the tidelands in the State. Other States have done as much.[3] The 13 original States, *475 joined by the Coastal States Organization (representing all coastal States), have filed a brief in support of Mississippi, insisting that ownership of thousands of acres of tidelands under nonnavigable waters would not be disturbed if the judgment below were affirmed, as it would be if petitioners' navigability-in-fact test were adopted. See Brief for 13 Original States as Amici Curiae 3-5, 26-27. Petitioners rely on early state cases to indicate that the original States did not claim title to nonnavigable tidal waters. See Brief for Petitioners 23-29. But it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Shively v. Bowlby, supra, at 26. Some of the original States, for example, did recognize more private interests in tidelands than did others of the 13 — more private interests than were recognized at common law, or in the dictates of our public trusts cases. See n. 12, infra. Because some of the cases which petitioners cite come from such States (i. e., from States which abandoned the common law with respect to tidelands),[4] they are of only limited value in understanding *476 the public trust doctrine and its scope in those States which have not relinquished their claims to all lands beneath tidal waters. Finally, we note that several of our prior decisions have recognized that the States have interests in lands beneath tidal waters which have nothing to do with navigation. For example, this Court has previously observed that public trust lands may be used for fishing — for both "shell-fish [and] floating fish." See, e. g., Smith v. Maryland, 18 How. 71, 75 (1855). On several occasions the Court has recognized that lands beneath tidal waters may be reclaimed to create land for urban expansion. E. g., Hardin v. Jordan, 140 U.S. 371, 381-382 (1891); Den v. Jersey Co., 15 How. 426, 432 (1854). Because of the State's ownership of tidelands, restrictions on the planting and harvesting of oysters there have been upheld. McCready v. Virginia, 94 U.S. 391, 395-397 (1877).[5] It would be odd to acknowledge such diverse uses of public trust tidelands, and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them. Consequently, we reaffirm our longstanding precedents which hold that the States, upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide. Under the well-established principles of our cases, the decision of the Mississippi Supreme Court is clearly correct: the lands at issue here are "under tidewaters," and therefore passed to the State of Mississippi upon its entrance into the Union. III Petitioners do not deny that broad statements of public trust dominion over tidelands have been included in this *477 Court's opinions since the early 19th century.[6] Rather, they advance two reasons why these previous statements of the public trust doctrine should not be given their apparent application in this case. A First, petitioners contend that these sweeping statements of state dominion over tidelands arise from an oddity of the common law, or more specifically, of English geography. Petitioners submit that in England practically all navigable rivers are influenced by the tide. Brief for Petitioners 19. See The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454 (1852). Thus, "tidewater" and "navigability" were synonyms at common law. See Illinois Central R. Co. v. Illinois, 146 U.S. 387, 436 (1892). Consequently, in petitioners' view, the Crown's ownership of lands beneath tidewaters actually rested on the navigability of those waters rather than the ebb and flow of the tide. Cf. ibid. English authority and commentators are cited to show that the Crown did not own the soil under any nonnavigable waters.[7] Petitioners *478 also cite for support statements from this Court's opinions, such as The Genesee Chief, supra, and Martin v. Waddell, 16 Pet. 367, 413-414 (1842), which observed that it was "the navigable waters of England, and the soils under them, [which were] held by the Crown" at common law (emphasis added). The cases relied on by petitioners, however, did not deal with tidal, nonnavigable waters. And we will not now enter the debate on what the English law was with respect to the land under such waters, for it is perfectly clear how this Court understood the common law of royal ownership, and what the Court considered the rights of the original and the later entering States to be. As we discuss above, this Court has consistently interpreted the common law as providing that the lands beneath waters under tidal influence were given States upon their admission into the Union. See Shively v. Bowlby, 152 U. S., at 57. See also cases cited in n. 2, supra. It is true that none of these cases actually dealt with lands such as those involved in this case, but it has never been suggested in any of this Court's prior decisions that the many statements included therein — to the effect that the States owned all the soil beneath waters affected by the tide — were anything less than an accurate description of the governing law. B Petitioners, in a related argument, contend that even if the common law does not support their position, subsequent cases from this Court developing the American public trust doctrine make it clear that navigability — and not tidal influence — has become the sine qua non of the public trust interest in tidelands in this country. It is true that The Genesee Chief, supra, at 456-457, overruled prior cases of this Court which had limited admiralty jurisdiction to waters subject to tidal influence. Cf. The Thomas Jefferson, 10 Wheat. 428, 429 (1825). The Court did sharply criticize the "ebb and flow" measure of admiralty *479 inherited from England in The Genesee Chief, and instead insisted quite emphatically that the different topography of America — in particular, our "thousands of miles of public navigable water[s] . . . in which there is no tide" — required that "jurisdiction [be] made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide." 12 How., at 457. Later, it came to be recognized as the "settled law of this country" that the lands under navigable freshwater lakes and rivers were within the public trust given the new States upon their entry into the Union, subject to the federal navigation easement and the power of Congress to control navigation on those streams under the Commerce Clause. Barney v. Keokuk, 94 U.S. 324, 338 (1877). See also Illinois Central R. Co. v. Illinois, supra, at 435-436. That States own freshwater river bottoms as far as the rivers are navigable, however, does not indicate that navigability is or was the prevailing test for state dominion over tidelands. Rather, this rule represents the American decision to depart from what it understood to be the English rule limiting Crown ownership to the soil under tidal waters. In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977), after recognizing the accepted doctrine that States coming into the Union had title to all lands under the tidewaters, the Court stated that Barney v. Keokuk, supra, had "extended the doctrine to waters which were nontidal but nevertheless navigable, consistent with [the Court's] earlier extension of admiralty jurisdiction." This Court's decisions in The Genesee Chief and Barney v. Keokuk extended admiralty jurisdiction and public trust doctrine to navigable freshwaters and the lands beneath them. But we do not read those cases as simultaneously withdrawing from public trust coverage those lands which had been consistently recognized in this Court's cases as being within that doctrine's scope: all lands beneath waters influenced by *480 the ebb and flow of the tide. See Mann v. Tacoma Land Co., 153 U.S. 273 (1894).[8] C Finally, we observe that not the least of the difficulties with petitioners' position is their concession that the States own the tidelands bordering the oceans, bays, and estuaries — even where these areas by no means could be considered navigable, as is always the case near the shore. Tr. of Oral Arg. 6. It is obvious that these waters are part of the sea, and the lands beneath them are state property; ultimately, though, the only proof of this fact can be that the waters are influenced by the ebb and flow of the tide. This is undoubtedly why the ebb-and-flow test has been the measure of public ownership of tidelands for so long. *481 Admittedly, there is a difference in degree between the waters in this case, and nonnavigable waters on the seashore that are affected by the tide. But there is no difference in kind. For in the end, all tidewaters are connected to the sea: the waters in this case, for example, by a navigable, tidal river. Perhaps the lands at issue here differ in some ways from tidelands directly adjacent to the sea; nonetheless, they still share those "geographical, chemical and environmental" qualities that make lands beneath tidal waters unique. Cf. Kaiser Aetna v. United States, 444 U.S. 164, 183 (1979) (BLACKMUN, J., dissenting). Indeed, we find the various alternatives for delineating the boundaries of public trust tidelands offered by petitioners and their supporting amici to be unpersuasive and unsatisfactory.[9] As the State suggested at argument, see Tr. of Oral Arg. 22-23, and as recognized on several previous occasions, the ebb-and-flow rule has the benefit of "uniformity and certainty, and . . . eas[e] of application." See, e. g., Cobb v. Davenport, 32 N. J. L. 369, 379 (1867). We are unwilling, after its lengthy history at common law, in this Court, and in many state courts, to abandon the ebb-and-flow rule now, and seek to fashion a new test to govern the limits of public trust tidelands. Consequently, we hold that the lands at issue in this case were within those given to Mississippi when the State was admitted to the Union. IV Petitioners in passing, and amici in somewhat greater detail, complain that the Mississippi Supreme Court's decision is "inequitable" and would upset "various . . . kinds of property expectations and interests [which] have matured since Mississippi joined the Union in 1817."[10] They claim *482 that they have developed reasonable expectations based on their record title for these lands, and that they (and their predecessors-in-interest) have paid taxes on these lands for more than a century. We have recognized the importance of honoring reasonable expectations in property interests. Cf. Kaiser Aetna v. United States, supra, at 175. But such expectations can only be of consequence where they are "reasonable" ones. Here, Mississippi law appears to have consistently held that the public trust in lands under water includes "title to all the land under tidewater." Rouse v. Saucier's Heirs, 166 Miss. 704, 713, 146 So. 291, 291-292 (1933).[11] Although the Mississippi Supreme Court acknowledged that this case may be the first where it faced the question of the public trust interest in nonnavigable tidelands, 491 So. 2d, at 516, the clear and unequivocal statements in its earlier opinions should have been ample indication of the State's claim to tidelands. Moreover, cases which have discussed the State's public trust interest in these lands have described uses of them not related to navigability, such as bathing, swimming, recreation, fishing, and mineral development. See, e. g., Treuting v. Bridge and Park Comm'n of City of Biloxi, 199 So. 2d 627, 632-633 (Miss. 1967). These statements, too, should have made clear that the State's claims were not limited to lands under navigable waterways. Any contrary expectations cannot be considered reasonable. We are skeptical of the suggestions by the dissent, post, at 485, 493, that a decision affirming the judgment below will have sweeping implications, either within Mississippi or outside that State. The State points out that only one other case is pending in its courts which raises this same issue. Tr. of Oral Arg. 19. And as for the effect of our decision today in other States, we are doubtful that this ruling will do *483 more than confirm the prevailing understanding — which in some States is the same as Mississippi's, and in others, is quite different. As this Court wrote in Shively v. Bowlby, 152 U. S., at 26, "there is no universal and uniform law upon the subject; but . . . each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy." Consequently, our ruling today will not upset titles in all coastal States, as petitioners intimated at argument. Tr. of Oral Arg. 32. As we have discussed supra, at 475, many coastal States, as a matter of state law, granted all or a portion of their tidelands to adjacent upland property owners long ago.[12] Our decision today does nothing to change ownership rights in States which previously relinquished a public trust claim to tidelands such as those at issue here. Indeed, we believe that it would be far more upsetting to settled expectations to reverse the Mississippi Supreme Court decision. As amici note, see, e. g., Brief for State of California et al. as Amici Curiae 19, many land titles have been adjudicated based on the ebb-and-flow rule for tidelands — we cannot know how many titles would have to be adjusted if the scope of the public trust was now found to be limited to lands beneath navigable tidal waters only. If States do not own lands under nonnavigable tidal waters, many state land grants based on our earlier decisions might now be invalid. Cf. Hardin v. Jordan, 140 U. S., at 381-382. Finally, even where States have given dominion over *484 tidelands to private property owners, some States have retained for the general public the right to fish, hunt, or bathe on these lands. See n. 12, supra. These long-established rights may be lost with respect to nonnavigable tidal waters if we adopt the rule urged by petitioners. The fact that petitioners have long been the record title holders, or long paid taxes on these lands does not change the outcome here. How such facts would transfer ownership of these lands from the State to petitioners is a question of state law. Here, the Mississippi Supreme Court held that under Mississippi law, the State's ownership of these lands could not be lost via adverse possession, laches, or any other equitable doctrine. 491 So. 2d, at 521. See Miss. Const., Art. 4, § 104; Gibson v. State Land Comm'r, 374 So. 2d 212, 216-217 (1979); City of Bay St. Louis v. Board of Supervisors of Hancock County, 80 Miss. 364, 371-372, 32 So. 54 (1902). We see no reason to disturb the "general proposition [that] the law of real property is, under our Constitution, left to the individual States to develop and administer." Hughes v. Washington, 389 U.S. 290, 295 (1967) (Stewart, J., concurring). See Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155 (1944); Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 22 (1935). Consequently, we do not believe that the equitable considerations petitioners advance divest the State of its ownership in the disputed tidelands. V Because we believe that our cases firmly establish that the States, upon entering the Union, were given ownership over all lands beneath waters subject to the tide's influence, we affirm the Mississippi Supreme Court's determination that the lands at issue here became property of the State upon its admission to the Union in 1817. Furthermore, because we find no reason to set aside that court's state-law determination that subsequent developments did not divest the *485 State of its ownership of these public trust lands, the judgment below is Affirmed. JUSTICE KENNEDY took no part in the consideration or decision of this case.

The issue here is whether the State of Mississippi, when it entered the Union in 1817, took title to lands lying under waters that were influenced by the tide running in the Gulf of Mexico, but were not navigable in fact. I As the Mississippi Supreme Court eloquently put it: "Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit." Cinque Bambini More specifically, in question here is ownership of 4 acres of land underlying the north branch of Bayou LaCroix and 11 small drainage streams in southwestern Mississippi; the disputed tracts range from under one-half acre to almost 10 acres in size. Although the waters over these lands lie several miles north of the Mississippi Gulf Coast and are not navigable, they are nonetheless influenced by the tide, because they are adjacent and tributary to the Jourdan River, a navigable stream flowing into the Gulf. The Jourdan, in the area involved here, is affected by the ebb and flow of the tide. Record title to these tracts of land is held by petitioners, who trace their claims back to prestatehood Spanish land grants. The State of Mississippi, however, claiming that by virtue of the "equal-footing doctrine" it acquired at the time of statehood and held in public trust all land lying under any waters influenced by the tide, whether navigable or not, issued oil and gas leases that included the property at issue. This quiet title suit, brought by petitioners, ensued. The Mississippi Supreme Court, affirming the Chancery Court with respect to the lands at issue here,[1] held that by *473 virtue of becoming a State, Mississippi acquired "fee simple title to all lands naturally subject to tidal influence, inland to today's mean high water mark" Ibid., Petitioners' submission that the State acquired title to only lands under navigable waters was rejected. We granted certiorari to review the Mississippi Supreme Court's decision, and now affirm the judgment below. II As petitioners recognize, the "seminal case in American public trust jurisprudence is" Reply Brief for Petitioners 11. The issue in was whether the State of Oregon or a prestatehood grantee from the United of riparian lands near the mouth of the Columbia River at Astoria, Oregon, owned the soil below the high-water mark. Following an extensive survey of this Court's prior cases, the English common law, and various cases from the state courts, the Court concluded: "At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation. Upon the American Revolution, these rights, charged with a like trust, were vested in the original within their respective borders, subject to *474 the rights surrendered by the Constitution of the United "The new admitted into the Union since the adoption of the Constitution have the same rights as the original in the tide waters, and in the lands under them, within their respective jurisdictions." Shively rested on prior decisions of this Court, which had included similar, sweeping statements of ' dominion over lands beneath tidal waters. for example, had stated that "[i]t is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original were reserved to the several and that the new since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original possess within their respective borders." On many occasions, before and since, this Court has stated or restated these words from Knight and Shively.[] Against this array of cases, it is not surprising that Mississippi claims ownership of all of the in the State. Other have done as much.[3] The 13 original *4 joined by the Coastal Organization (representing all coastal ), have filed a brief in support of Mississippi, insisting that ownership of thousands of acres of under nonnavigable waters would not be disturbed if the judgment below were affirmed, as it would be if petitioners' navigability-in-fact test were adopted. See Brief for 13 Original as Amici Curiae 3-5, 6-7. Petitioners rely on early state cases to indicate that the original did not claim title to nonnavigable tidal waters. See Brief for Petitioners 3-9. But it has been long established that the individual have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Some of the original for example, did recognize more private interests in than did others of the 13 — more private interests than were recognized at common law, or in the dictates of our public trusts cases. See n. 1, infra. Because some of the cases which petitioners cite come from such (i. e., from which abandoned the common law with respect to ),[4] they are of only limited value in understanding *476 the public trust doctrine and its scope in those which have not relinquished their claims to all lands beneath tidal waters. Finally, we note that several of our prior decisions have recognized that the have interests in lands beneath tidal waters which have nothing to do with navigation. For example, this Court has previously observed that public trust lands may be used for fishing — for both "shell-fish [and] floating fish." See, e. g., On several occasions the Court has recognized that lands beneath tidal waters may be reclaimed to create land for urban expansion. E. g., ; Because of the State's ownership of restrictions on the planting and harvesting of oysters there have been upheld.[5] It would be odd to acknowledge such diverse uses of public trust and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them. Consequently, we reaffirm our longstanding precedents which hold that the upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide. Under the well-established principles of our cases, the decision of the Mississippi Supreme Court is clearly correct: the lands at issue here are "under tidewaters," and therefore passed to the State of Mississippi upon its entrance into the Union. III Petitioners do not deny that broad statements of public trust dominion over have been included in this *477 Court's opinions since the early 19th century.[6] Rather, they advance two reasons why these previous statements of the public trust doctrine should not be given their apparent application in this case. A First, petitioners contend that these sweeping statements of state dominion over arise from an oddity of the common law, or more specifically, of English geography. Petitioners submit that in England practically all navigable rivers are influenced by the tide. Brief for Petitioners 19. See The Propeller Genesee Thus, "tidewater" and "navigability" were synonyms at common law. See Central R. Consequently, in petitioners' view, the Crown's ownership of lands beneath tidewaters actually rested on the navigability of those waters rather than the ebb and flow of the tide. Cf. English authority and commentators are cited to show that the Crown did not own the soil under any nonnavigable waters.[7] Petitioners *478 also cite for support statements from this Court's opinions, such as The Genesee and which observed that it was "the navigable waters of England, and the soils under them, [which were] held by the Crown" at common law (emphasis added). The cases relied on by petitioners, however, did not deal with tidal, nonnavigable waters. And we will not now enter the debate on what the English law was with respect to the land under such waters, for it is perfectly clear how this Court understood the common law of royal ownership, and what the Court considered the rights of the original and the later entering to be. As we discuss above, this Court has consistently interpreted the common law as providing that the lands beneath waters under tidal influence were given upon their admission into the Union. See 15 U. S., See also cases cited in n. It is true that none of these cases actually dealt with lands such as those involved in this case, but it has never been suggested in any of this Court's prior decisions that the many statements included therein — to the effect that the owned all the soil beneath waters affected by the tide — were anything less than an accurate description of the governing law. B Petitioners, in a related argument, contend that even if the common law does not support their position, subsequent cases from this Court developing the American public trust doctrine make it clear that navigability — and not tidal influence — has become the sine qua non of the public trust interest in in this country. It is true that The Genesee overruled prior cases of this Court which had limited admiralty jurisdiction to waters subject to tidal influence. Cf. The Thomas Jefferson, 10 Wheat. 48, 49 (185). The Court did sharply criticize the "ebb and flow" measure of admiralty *479 inherited from England in The Genesee and instead insisted quite emphatically that the different topography of America — in particular, our "thousands of miles of public navigable water[s] in which there is no tide" — required that "jurisdiction [be] made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide." 1 How., at 457. Later, it came to be recognized as the "settled law of this country" that the lands under navigable freshwater lakes and rivers were within the public trust given the new upon their entry into the Union, subject to the federal navigation easement and the power of Congress to control navigation on those streams under the Commerce Clause. 94 U.S. 34, See also Central R. at 435-. That own freshwater river bottoms as far as the rivers are navigable, however, does not indicate that navigability is or was the prevailing test for state dominion over Rather, this rule represents the American decision to depart from what it understood to be the English rule limiting Crown ownership to the soil under tidal waters. In Oregon ex rel. State Land 49 U.S. 363, after recognizing the accepted doctrine that coming into the Union had title to all lands under the tidewaters, the Court stated that had "extended the doctrine to waters which were nontidal but nevertheless navigable, consistent with [the Court's] earlier extension of admiralty jurisdiction." This Court's decisions in The Genesee and extended admiralty jurisdiction and public trust doctrine to navigable freshwaters and the lands beneath them. But we do not read those cases as simultaneously withdrawing from public trust coverage those lands which had been consistently recognized in this Court's cases as being within that doctrine's scope: all lands beneath waters influenced by *480 the ebb and flow of the tide. See 153 U.S. 73[8] C Finally, we observe that not the least of the difficulties with petitioners' position is their concession that the own the bordering the oceans, bays, and estuaries — even where these areas by no means could be considered navigable, as is always the case near the shore. Tr. of Oral Arg. 6. It is obvious that these waters are part of the sea, and the lands beneath them are state property; ultimately, though, the only proof of this fact can be that the waters are influenced by the ebb and flow of the tide. This is undoubtedly why the ebb-and-flow test has been the measure of public ownership of for so long. *481 Admittedly, there is a difference in degree between the waters in this case, and nonnavigable waters on the seashore that are affected by the tide. But there is no difference in kind. For in the end, all tidewaters are connected to the sea: the waters in this case, for example, by a navigable, tidal river. Perhaps the lands at issue here differ in some ways from directly adjacent to the sea; nonetheless, they still share those "geographical, chemical and environmental" qualities that make lands beneath tidal waters unique. Cf. Kaiser Indeed, we find the various alternatives for delineating the boundaries of public trust offered by petitioners and their supporting amici to be unpersuasive and unsatisfactory.[9] As the State suggested at argument, see Tr. of Oral Arg. -3, and as recognized on several previous occasions, the ebb-and-flow rule has the benefit of "uniformity and certainty, and eas[e] of application." See, e. g., Cobb v. Davenport, 3 N. J. L. 369, 379 (1867). We are unwilling, after its lengthy history at common law, in this Court, and in many state courts, to abandon the ebb-and-flow rule now, and seek to fashion a new test to govern the limits of public trust Consequently, we hold that the lands at issue in this case were within those given to Mississippi when the State was admitted to the Union. IV Petitioners in passing, and amici in somewhat greater detail, complain that the Mississippi Supreme Court's decision is "inequitable" and would upset "various kinds of property expectations and interests [which] have matured since Mississippi joined the Union in 1817."[10] They claim *48 that they have developed reasonable expectations based on their record title for these lands, and that they (and their predecessors-in-interest) have paid taxes on these lands for more than a century. We have recognized the importance of honoring reasonable expectations in property interests. Cf. Kaiser at 1. But such expectations can only be of consequence where they are "reasonable" ones. Here, Mississippi law appears to have consistently held that the public trust in lands under water includes "title to all the land under tidewater." 146 So. 91, 91-9[11] Although the Mississippi Supreme Court acknowledged that this case may be the first where it faced the question of the public trust interest in nonnavigable 491 So. d, at 516, the clear and unequivocal statements in its earlier opinions should have been ample indication of the State's claim to Moreover, cases which have the State's public trust interest in these lands have described uses of them not related to navigability, such as bathing, swimming, recreation, fishing, and mineral development. See, e. g., 199 So. d 67, 63-633 These statements, too, should have made clear that the State's claims were not limited to lands under navigable waterways. Any contrary expectations cannot be considered reasonable. We are skeptical of the suggestions by the dissent, post, at 485, 493, that a decision affirming the judgment below will have sweeping implications, either within Mississippi or outside that State. The State points out that only one other case is pending in its courts which raises this same issue. Tr. of Oral Arg. 19. And as for the effect of our decision today in other we are doubtful that this ruling will do *483 more than confirm the prevailing understanding — which in some is the same as Mississippi's, and in others, is quite different. As this Court wrote in 15 U. S., "there is no universal and uniform law upon the subject; but each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy." Consequently, our ruling today will not upset titles in all coastal as petitioners intimated at argument. Tr. of Oral Arg. 3. As we have at 4, many coastal as a matter of state law, granted all or a portion of their to adjacent upland property owners long ago.[1] Our decision today does nothing to change ownership rights in which previously relinquished a public trust claim to such as those at issue here. Indeed, we believe that it would be far more upsetting to settled expectations to reverse the Mississippi Supreme Court decision. As amici note, see, e. g., Brief for State of California et al. as Amici Curiae 19, many land titles have been adjudicated based on the ebb-and-flow rule for — we cannot know how many titles would have to be adjusted if the scope of the public trust was now found to be limited to lands beneath navigable tidal waters only. If do not own lands under nonnavigable tidal waters, many state land grants based on our earlier decisions might now be invalid. Cf. 140 U. S., at Finally, even where have given dominion over *484 to private property owners, some have retained for the general public the right to fish, hunt, or bathe on these lands. See n. 1, These long-established rights may be lost with respect to nonnavigable tidal waters if we adopt the rule urged by petitioners. The fact that petitioners have long been the record title holders, or long paid taxes on these lands does not change the outcome here. How such facts would transfer ownership of these lands from the State to petitioners is a question of state law. Here, the Mississippi Supreme Court held that under Mississippi law, the State's ownership of these lands could not be lost via adverse possession, laches, or any other equitable doctrine. 491 So. d, at 51. See Miss. Const., Art. 4, 104; So. d 1, 16-17 ; City of Bay St. 371-37, 3 So. 54 (190). We see no reason to disturb the "general proposition [that] the law of real property is, under our Constitution, left to the individual to develop and administer." 389 U.S. 90, 95 See Davies Warehouse 31 U.S. 144, ; Borax Consolidated, 96 U.S. 10, Consequently, we do not believe that the equitable considerations petitioners advance divest the State of its ownership in the disputed V Because we believe that our cases firmly establish that the upon entering the Union, were given ownership over all lands beneath waters subject to the tide's influence, we affirm the Mississippi Supreme Court's determination that the lands at issue here became property of the State upon its admission to the Union in 1817. Furthermore, because we find no reason to set aside that court's state-law determination that subsequent developments did not divest the *485 State of its ownership of these public trust lands, the judgment below is Affirmed. JUSTICE KENNEDY took no part in the consideration or decision of this case.

Justice Rehnquist

concurring

National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc.

https://www.courtlistener.com/opinion/109435/national-bank-of-north-america-v-associates-of-obstetrics-female/

https://www.courtlistener.com/api/rest/v3/clusters/109435/

1975-083

Charlotte Nat. Bank v. Morgan, 132 U.S. 141 (1889), recognized that the exemption of national banking associations *462 from suit in counties or cities other than those in which they were located was a personal privilege of the associations which could be waived by them. Id., at 145. This exception to the otherwise mandatory nature of this. venue limitation has been carried forward in the current recodification of the federally created privilege. Michigan Nat. Bank v. Robertson, 372 U.S. 591, 594 (1963). In Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939), the Court held that by designating an agent for service of process within a State, a corporation gave its consent to be sued in federal court within that State notwithstanding the provisions of the predecessor to 28 U.S. C. § 1391 (c), which accorded defendants in federal courts a privilege regarding venue essentially equivalent to that found in 12 U.S. C. § 94. I see no reason for concluding that the venue privilege extended by § 94 is of a different nature from that contained in § 1391, or that it may not be similarly waived by the conduct of a national banking association. Thus, I believe Neirbo establishes that petitioner National Bank could be deemed to have consented to being sued in Utah by providing an agent for service of process in that State or otherwise qualifying to do business therein according to Utah law. The record before us does not reveal whether such facts may exist in this case, however, and the Utah courts apparently engaged in no inquiry along these lines. I therefore agree with the Court's decision to remand this case to the Utah court in order that it can examine whether petitioner may have waived the privilege afforded it by § 94.

Charlotte Nat. recognized that the exemption of national banking associations *462 from suit in counties or cities other than those in which they were located was a personal privilege of the associations which could be waived by them. This exception to the otherwise mandatory nature of this. venue limitation has been carried forward in the current recodification of the federally created privilege. Michigan Nat. In Neirbo the Court held that by designating an agent for service of process within a State, a corporation gave its consent to be sued in federal court within that State notwithstanding the provisions of the predecessor to 28 U.S. C. 1391 (c), which accorded defendants in federal courts a privilege regarding venue essentially equivalent to that found in 12 U.S. C. 94. I see no reason for concluding that the venue privilege extended by 94 is of a different nature from that contained in 1391, or that it may not be similarly waived by the conduct of a national banking association. Thus, I believe Neirbo establishes that petitioner National Bank could be deemed to have consented to being sued in Utah by providing an agent for service of process in that State or otherwise qualifying to do business therein according to Utah law. The record before us does not reveal whether such facts may exist in this case, however, and the Utah courts apparently engaged in no inquiry along these lines. I therefore agree with the Court's decision to remand this case to the Utah court in order that it can examine whether petitioner may have waived the privilege afforded it by 94.

Justice Douglas

dissenting

United States v. Biswell

https://www.courtlistener.com/opinion/108533/united-states-v-biswell/

https://www.courtlistener.com/api/rest/v3/clusters/108533/

1971-105

As Mr. Justice Clark, writing for the three-judge panel in the Court of Appeals for the Tenth Circuit said, the Federal Gun Control Act, 18 U.S. C. § 923 (g), has a provision for inspection that is "almost identical" with the one in Colonnade Catering Corp. v. United States, 397 U.S. 72. The present one provides: "The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition . . . dealer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . and (2) any firearms or ammunition kept or stored by such . . . dealer . . . ." 18 U.S. C. § 923 (g). *318 The one in Colonnade provided: "The Secretary or his delegate may enter during business hours the premises . . . of any dealer for the purpose of inspecting or examining any records or other documents required to be kept . . . under this chapter . . . ." 26 U.S. C. § 5146 (b). The Court legitimates this inspection scheme because of its belief that, had respondent been a dealer in liquor instead of firearms, such a search as was here undertaken would have been valid under the principles of Colonnade. I respectfully disagree. Colonnade, of course, rested heavily on the unique historical origins of governmental regulation of liquor. And the Court admits that similar regulation of the firearms traffic "is not as deeply rooted in history as is governmental control of the liquor industry." Yet, assuming, arguendo, that the firearms industry is as appropriate a subject of pervasive governmental inspection as is the liquor industry, the Court errs. In Colonnade, we agreed that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." 397 U.S., at 76. But we also said: "Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply." Id., at 77. Here, the statute authorizing inspection is virtually identical to the one we considered in Colonnade. The conclusion necessarily follows that Congress, as in Colonnade, has here "selected a standard that does not include forcible entries without a warrant." Ibid. In my view, a search conducted over the objection of the owner of the premises sought to be searched is "forcible," whether or not violent means are used to effect *319 the search. In this case, the owner withdrew his objection upon being shown a copy of the statute authorizing inspection, saying: "If that is the law, I guess it is all right." If we apply the test of "consent" that we used in Bumper v. North Carolina, 391 U.S. 543, we would affirm this judgment,[*] for as MR. JUSTICE STEWART, speaking for the Court in Bumper, said: "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all. "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. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id., at 548-550. I would affirm the judgment below.

As Mr. Justice Clark, writing for the three-judge panel in the Court of Appeals for the Tenth Circuit said, the Federal Gun Control Act, 18 U.S. C. 923 (g), has a provision for inspection that is "almost identical" with the one in Colonnade Catering The present one provides: "The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition dealer for the purpose of inspecting or examining (1) any records or documents required to be kept and (2) any firearms or ammunition kept or stored by such dealer" 18 U.S. C. 923 (g). *318 The one in Colonnade provided: "The Secretary or his delegate may enter during business hours the premises of any dealer for the purpose of inspecting or examining any records or other documents required to be kept under this chapter" 26 U.S. C. 5146 (b). The Court legitimates this inspection scheme because of its belief that, had respondent been a dealer in liquor instead of firearms, such a search as was here undertaken would have been valid under the principles of Colonnade. I respectfully disagree. Colonnade, of course, rested heavily on the unique historical origins of governmental regulation of liquor. And the Court admits that similar regulation of the firearms traffic "is not as deeply rooted in history as is governmental control of the liquor industry." Yet, assuming, arguendo, that the firearms industry is as appropriate a subject of pervasive governmental inspection as is the liquor industry, the Court errs. In Colonnade, we agreed that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." But we also said: "Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply." Here, the statute authorizing inspection is virtually identical to the one we considered in Colonnade. The conclusion necessarily follows that Congress, as in Colonnade, has here "selected a standard that does not include forcible entries without a warrant." In my view, a search conducted over the objection of the owner of the premises sought to be searched is "forcible," whether or not violent means are used to effect *319 the search. In this case, the owner withdrew his objection upon being shown a copy of the statute authorizing inspection, saying: "If that is the law, I guess it is all right." If we apply the test of "consent" that we used in we would affirm this judgment,[*] for as MR. JUSTICE STEWART, speaking for the Court in Bumper, said: "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all. "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. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent." I would affirm the judgment below.

per_curiam

per_curiam

Paschall v. Christie-Stewart, Inc.

https://www.courtlistener.com/opinion/108884/paschall-v-christie-stewart-inc/

https://www.courtlistener.com/api/rest/v3/clusters/108884/

1973-015

In this case we noted probable jurisdiction, 411 U.S. 915 (1973), in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla. Stat., Tit. 68, §§ 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment.[1] See Mullane v. Central Hanover *101 Bank & Trust Co., 339 U.S. 306 (1950). This was the only issue addressed by the appellate courts of Oklahoma[2] and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court. After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims.[3] If *102 that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. Murdock v. City of Memphis, 20 Wall. 590, 636 (1875). The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the trial court's determination that the State's statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants' claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of §§ 382 and 432b.[4] Cf. Walker v. Hoffman, 405 P.2d 57 (Okla. 1965). It is so ordered. MR. JUSTICE DOUGLAS, with whom MR.

In this case we noted probable jurisdiction, in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla. Stat., Tit. 68, 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment.[1] See This was the only issue addressed by the appellate courts of Oklahoma[2] and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court. After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims.[3] If *102 that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the trial court's determination that the State's statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants' claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of 382 and 432b.[4] Cf. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR.

Justice Kennedy

majority

Brown v. Plata

https://www.courtlistener.com/opinion/217287/brown-v-plata/

https://www.courtlistener.com/api/rest/v3/clusters/217287/

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef fective absent a reduction in the prison system popula tion. The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend 2 BROWN v. PLATA Opinion of the Court ment is a power reserved to a three-judge district court, not a single-judge district court. 18 U.S. C. §3626(a). In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interre lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State also objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). 18 U.S. C. §3626; see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre tion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis taken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large num bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern. At the time of trial, California’s correctional facilities held some 156,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison popu Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis criminate manner or in these substantial numbers if sat isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece dented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional re quirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provi sion of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” 18 U.S. C. §3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners 4 BROWN v. PLATA Opinion of the Court through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the three judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed. I A The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correc tional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely over crowded, imperiling the safety of both correctional em ployees and inmates.’ ”1 Juris. Statement App., O. T. 2009, —————— 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tail spin,” id., at i. Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emer gency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” Id., at 61a. The consequences of overcrowding identified by the Governor include “ ‘in creased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Ibid. Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for pro longed periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert re ported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. —————— At trial, current and former California prison officials also testified to the degree of overcrowding. Jeanne Woodford, who recently adminis tered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” Ibid. And Robin Dezember, chief deputy secretary of Cor rectional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on every body in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con ditions in California’s prisons as “appalling,” “inhumane,” and “unac ceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate action.” Id., at 1312. 6 BROWN v. PLATA Opinion of the Court Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. Id., at 704. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treat ment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Id., at 1781. Prisoners suffering from physical illness also receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. Id., at 1024. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face signifi cant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest —————— 2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceed ing the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or inter vention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deterioration.” Id., at 12. No de tailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide prevention.” App. 868. Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receiv ership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, sur veyed death reviews for California prisoners. He con cluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “ex tremely high.” Id., at 429.4 Many more prisoners, suffer —————— 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Consti tution under Estelle v. Gamble, 429 U.S. 97, 104–105 (1976), if consid ered in isolation. Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 pre ventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews 18 (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. Ibid. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy . . . ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) 8 BROWN v. PLATA Opinion of the Court ing from severe but not life-threatening conditions, experi ence prolonged illness and unnecessary pain. B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over 15 years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to de liver necessary care to mentally ill inmates” in California prisons. Coleman v. Wilson, 912 F. Supp. 1282, 1316 (ED Cal.). The prisons were “seriously and chronically under staffed,” id., at 1306, and had “no effective method for ensuring . . . the competence of their staff,” id., at 1308. The prisons had failed to implement necessary suicide prevention procedures, “due in large measure to the severe understaffing.” Id., at 1315. Mentally ill inmates “lan guished for months, or even years, without access to nec essary care.” Id., at 1316. “They suffer from severe hallu cinations, [and] they decompensate into catatonic states.” Ibid. The court appointed a Special Master to oversee development and implementation of a remedial plan of action. In 2007, 12 years after his appointment, the Special —————— (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evi dence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48. Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California’s prisons was deteriorating. App. 489. The Special Master ascribed this change to increased over crowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the “growth of the resource [had] not matched the rise in demand.” Id., at 482. At the very time the need for space was rising, the need to house the expanding population had also caused a “reduction of programming space now occupied by inmate bunks.” Id., at 479. The State was “facing a four to five year gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients.” Id., at 481. “[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs.” Ibid. The Special Master concluded that many early “achievements have succumbed to the inexo rably rising tide of population, leaving behind growing frustration and despair.” Id., at 489. C The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that defi ciencies in prison medical care violated prisoners’ Eighth Amendment rights. The State stipulated to a remedial injunction. The State failed to comply with that injunc tion, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to 10 BROWN v. PLATA Opinion of the Court constitutional deficiencies in the [California prisons’] medical delivery system.” Ibid. And the court made findings regarding specific instances of neglect, including the following: “[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medica tions that actually served to exacerbate his renal fail ure. An optometrist noted the patient’s retinal bleed ing due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the pa tient’s renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the pa tient died three months later.” Id., at 928 (citations omitted). Prisons were unable to retain sufficient numbers of com petent medical staff, id., at 937, and would “hire any doctor who had ‘a license, a pulse and a pair of shoes,’ ” id., at 926. Medical facilities lacked “necessary medical equip ment” and did “not meet basic sanitation standards.” Id., at 944. “Exam tables and counter tops, where prisoners with . . . communicable diseases are treated, [were] not routinely disinfected.” Ibid. In 2008, three years after the District Court’s decision, the Receiver described continuing deficiencies in the health care provided by California prisons: “Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured. . . . Adequate housing for the dis abled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of dis repair. Basic medical equipment is often not available or used. Medications and other treatment options are Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court too often not available when needed. . . . Indeed, it is a misnomer to call the existing chaos a ‘medical deliv ery system’—it is more an act of desperation than a system.” Record in No. 3:01–CV–01351–TEH (ND Cal.), Doc. 1136, p. 5. A report by the Receiver detailed the impact of overcrowd ing on efforts to remedy the violation. The Receiver ex plained that “overcrowding, combined with staffing short ages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult.” App. 1031. “[O]vercrowding, and the resulting day to day operational chaos of the [prison sys tem], creates regular ‘crisis’ situations which . . . take time [and] energy . . . away from important remedial pro grams.” Id., at 1035. Overcrowding had increased the incidence of infectious disease, id., at 1037–1038, and had led to rising prison violence and greater reliance by custo dial staff on lockdowns, which “inhibit the delivery of medical care and increase the staffing necessary for such care.” Id., at 1037. “Every day,” the Receiver reported, “California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman . . . or Plata they will fail to comply with because of staff shortages and patient loads.” Id., at 1038. D The Coleman and Plata plaintiffs, believing that a rem edy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a three judge court empowered under the PLRA to order reduc tions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not chal lenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this 12 BROWN v. PLATA Opinion of the Court appeal. The three-judge court heard 14 days of testimony and issued a 184-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court. The State appealed to this Court pursuant to 28 U.S. C. §1253, and the Court postponed consideration of the ques tion of jurisdiction to the hearing on the merits. Schwar zenegger v. Plata, 560 U. S. ___ (2010). II As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dig nity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quot ing Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)). To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court actually produce physical ‘torture or a lingering death.’ ” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. 436, 447 (1890)); see generally A. Elsner, Gates of Injustice: The Crisis in America’s Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, includ ing adequate medical care, is incompatible with the con cept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9 (1978). Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and danger ous task of housing large numbers of convicted criminals. See Bell v. Wolfish, 441 U.S. 520, 547–548 (1979). Courts nevertheless must not shrink from their obligation to “en force the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration. Courts faced with the sensitive task of remedying un constitutional prison conditions must consider a range of available options, including appointment of special mas ters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitu tional mandate, courts may enter orders placing limits on a prison’s population. By its terms, the PLRA restricts the circumstances in which a court may enter an order “that has the purpose or effect of reducing or limiting the prison population.” 18 U.S. C. §3626(g)(4). The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design 14 BROWN v. PLATA Opinion of the Court capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of de sign capacity, it nonetheless has the “effect of reducing or limiting the prison population.” Ibid. Under the PLRA, only a three-judge court may enter an order limiting a prison population. §3626(a)(3)(B). Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). The party request ing a three-judge court must then submit “materials suffi cient to demonstrate that [these requirements] have been met.” §3626(a)(3)(C). If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. Ibid.; see also 28 U.S. C. §2284(b)(1) (stating that a three-judge court may not be convened if the district court “determines that three judges are not required”); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure §4235 (3d ed. 2007). The three-judge court must then find by clear and con vincing evidence that “crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” 18 U.S. C. §3626(a)(3)(E). As with any award of prospective relief under the PLRA, the relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” §3626(a)(1)(A). The three-judge court must therefore find that the relief is “narrowly drawn, extends no further than necessary . . . , and is the least intrusive means necessary to correct the violation of the Federal right.” Ibid. In making this de termination, the three-judge court must give “substantial weight to any adverse impact on public safety or the op eration of a criminal justice system caused by the relief.” Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court Ibid. Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case. This Court’s review of the three-judge court’s legal determinations is de novo, but factual findings are re viewed for clear error. See Anderson v. Bessemer City, 470 U.S. 564, 573–574 (1985). Deference to trial court fact finding reflects an understanding that “[t]he trial judge’s major role is the determination of fact, and with experi ence in fulfilling that role comes expertise.” Id., at 574. The three-judge court oversaw two weeks of trial and heard at considerable length from California prison offi cials, as well as experts in the field of correctional admini stration. The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had over seen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fash ion a remedy for this complex and intractable constitu tional violation. The three-judge court’s findings of fact may be reversed only if this Court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” Id., at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). A The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata. 1 The parties dispute this Court’s jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the 16 BROWN v. PLATA Opinion of the Court District Courts. When exercising jurisdiction under 28 U.S. C. §1253, however, this Court “has not hesitated to exercise jurisdiction ‘to determine the authority of the court below,’ ” including whether the three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95, n. 12 (1974) (quoting Bailey v. Patterson, 369 U.S. 31, 34 (1962) (per curiam)); see also Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18 (1934) (per curiam) (“The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action”). The merits of the decision to con vene the three-judge court, therefore, are properly before this Court. 2 Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied.” 18 U.S. C. §3626(a)(3)(A)(i). This provision refers to “an order.” It is satisfied if the court has entered one order, and this sin gle order has “failed to remedy” the constitutional viola tion. The defendant must also have had “a reasonable amount of time to comply with the previous court orders.” §3626(a)(3)(A)(ii). This provision refers to the court’s “orders.” It requires that the defendant have been given a reasonable time to comply with all of the court’s orders. Together, these requirements ensure that the “ ‘last resort remedy’ ” of a population limit is not imposed “ ‘as a first step.’ ” Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (CADC 1988). The first of these conditions, the previous order re quirement of §3626(a)(3)(A)(i), was satisfied in Coleman by appointment of a Special Master in 1995, and it was Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief “remains necessary to correct a current and ongoing violation of the Federal right,” §3626(b)(3), California has not attempted to obtain relief on this basis. The State claims instead that the second condition, the reasonable time requirement of §3626(a)(3)(A)(ii), was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for con struction of new facilities, hiring of new staff, and im plementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State’s ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms. Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new devel opments in the courts’ remedial efforts, the basic plan to solve the crisis through construction, hiring, and proce dural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The 18 BROWN v. PLATA Opinion of the Court Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduction. Instead, the Coleman Special Master explained that “many of the clinical advances . . . painfully accomplished over the past decade are slip-sliding away” as a result of overcrowding. App. 481–482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could “all but bankrupt” the State of California. App. 1053. Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reason able time to succeed, but reasonableness must be assessed in light of the entire history of the court’s remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a morato rium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts’ involve ment, serving neither the State nor the prisoners. Con gress did not require this unreasonable result when it used the term “reasonable.” The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Cite as: 563 U. S. ____ (2011) 19 Opinion of the Court Special Master in July 2009 describes ongoing violations, including an “absence of timely access to appropriate levels of care at every point in the system.” App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply “too many pris oners for the healthcare infrastructure.” Id., at 1655. The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay. B Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that “crowding is the primary cause of the violation of a Federal right.” 18 U.S. C. §3626(a)(3)(E)(i). 1 The three-judge court found the primary cause require ment satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic condi tions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court also found that “until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison population.” Juris. App. 141a. The parties dispute the standard of review applicable to this determination. With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferen tial. It is not this Court’s place to “duplicate the role” of the trial court. Anderson, 470 U.S., at 573. The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, “the mix weighs heavily on the 20 BROWN v. PLATA Opinion of the Court ‘fact’ side.” Lilly v. Virginia, 527 U.S. 116, 148 (1999) (Rehnquist, C. J., concurring in judgment). Because the “district court is ‘better positioned’ . . . to decide the issue,” our review of the three-judge court’s primary cause deter mination is deferential. Salve Regina College v. Russell, 499 U.S. 225, 233 (1991). The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the se verity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, “even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, . . . the prisons would still be unable to handle the level of need given the current overcrowding.” Record in No. 2:90–CV–00520–LKK–JFM (ED Cal.), Doc. 3231–13, p. 16 (hereinafter Doc. 3231–13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are “managing far larger caseloads than is appropriate or effective.” App. 596. A prison psychiatrist told Dr. Haney that “ ‘we are doing about 50% of what we should be doing.’ ” Ibid. In the context of physical care Dr. Shansky agreed that “demand for care, particularly for the high priority cases, continues to overwhelm the resources —————— 5 Dr. Craig Haney likewise testified that the State had “significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements,” that “key tasks were omitted when determining staffing workloads,” and that estimates were based on “key assumptions” that caused the State to underestimate demand for mental health care. App. 596–597. Cite as: 563 U. S. ____ (2011) 21 Opinion of the Court available.” Id., at 1408. Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the “newest and most modern pris ons” had been “designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons.” App. 1023 (emphasis deleted). Dr. Haney re ported that “[e]ach one of the facilities I toured was short of significant amounts of space needed to perform other wise critical tasks and responsibilities.” Id., at 597–598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bath rooms, shower rooms, and visiting centers. These make shift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff. This shortfall of resources relative to demand contrib utes to significant delays in treatment. Mentally ill pris oners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for “ ‘6 months or more.’ ” App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6 Delays are no less severe in the context of physical care. —————— 6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, “[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observation.” App. 736. The prisoner “hanged himself that night in his cell.” Ibid.; see also Juris. App. 99a. 22 BROWN v. PLATA Opinion of the Court Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231–13, at 18. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. Id., at 22–23. Urgent specialty referrals at one prison had been pending for six months to a year. Id., at 27. Crowding also creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as “ ‘breeding grounds for disease.’ ”7 Juris. App. 102a. Cramped conditions promote unrest and vio lence, making it difficult for prison officials to monitor and control the prison population. On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was as saulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may also impede efforts to improve delivery of —————— 7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners “bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.” Tr. 601, 604–605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to “more than half ” the 340 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. Id., at 720–721. Cite as: 563 U. S. ____ (2011) 23 Opinion of the Court care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup port a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. Id., at 769–777. More gen erally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “ ‘are simply too many issues that arise from such a large number of pris oners,’ ” and that, as a result, “ ‘management spends virtu ally all of its time fighting fires instead of engaging in thoughtful decision-making and planning’ ” of the sort needed to fashion an effective remedy for these constitu tional violations. Juris. App. 82a. Increased violence also requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. Id., at 116a. The average lock down lasted 12 days, and 20 lockdowns lasted 60 days or longer. Ibid. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications. The effects of overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. Id., at 85a. Crowding in these areas runs as high as 300% of design capacity. Id., at 86a. Living conditions are “ ‘toxic,’ ” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and pro vide even rudimentary care. Id., at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with 24 BROWN v. PLATA Opinion of the Court physicals or provid[e] any kind of chronic care follow-up.’ ” Id., at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general population. Some prisoners are held in the reception centers for their entire period of incarceration. Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the Califor nia prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” Id., at 83a. The former executive director of the Texas Department of Criminal Justice testified that “ ‘[e]verything revolves around overcrowding” and that “ ‘overcrowding is the primary cause of the medical and mental health care violations.’ ” Id., at 127a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ ‘overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.’ ” Ibid. And the current secretary of the Pennsylvania Depart ment of Corrections testified that “ ‘‘the biggest inhibiting factor right now in California being able to deliver appro priate mental health and medical care is the severe over crowding.’ ” Id., at 82a. 2 The State attempts to undermine the substantial evi dence presented at trial, and the three-judge court’s find ings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison condi tions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on Cite as: 563 U. S. ____ (2011) 25 Opinion of the Court recent observations of prison conditions; the court ad mitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, includ ing understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See supra, at 4–8, 19–24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. Id., at 585; see also id., at 563, 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231–13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); id., at 1245 (Austin); id., at 1312 (Lehman). The three-judge court’s opinion cited and relied on this evidence of current conditions. The court relied exten sively on the expert witness reports. See generally Juris. App. 85a–143a. The court cited the most current data available on suicides and preventable deaths in the Cali fornia prisons. Id., at 123a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, id., at 105a, 108a, and statistics on shortages of treatment beds for the same period, id., at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it also cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations. It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of “changed prison conditions” after that date would not be admitted. App. 26 BROWN v. PLATA Opinion of the Court 1190. The court also excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the exis tence of an ongoing constitutional violation. The court reasoned that its decision was limited to the issue of rem edy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered “[t]o the extent that it illuminates questions that are properly before the court.” App. 2339. Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litiga tion of the merits and the remedy. The State in fact represented to the three-judge court that it would be “ap propriate” to cut off discovery before trial because “like plaintiffs, we, too, are really gearing up and going into a pretrial mode.” Id., at 1683. And if the State truly be lieved there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a three judge court should not be convened because the District Courts’ prior orders had not “failed to remedy the dep rivation” of prisoners’ constitutional rights. 18 U.S. C. §3626(a)(3)(A)(i); see also supra, at 16–17. Once the three judge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit. The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the three judge court was based on current evidence pertaining to ongoing constitutional violations. 3 The three-judge court acknowledged that the violations Cite as: 563 U. S. ____ (2011) 27 Opinion of the Court were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the pri mary cause in the sense of being the foremost cause of the violation. This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. “Primary” is defined as “[f]irst or highest in rank, quality, or importance; princi pal.” American Heritage Dictionary 1393 (4th ed. 2000); see also Webster’s Third New International Dictionary 1800 (2002) (defining “primary” as “first in rank or impor tance”); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining “primary” as “[o]f the first or highest rank or importance; that claims the first consideration; principal, chief ”). Overcrowding need only be the foremost, chief, or principal cause of the violation. If Congress had intended —————— 8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were “simply wrong.” App. 1054–1055. The Receiver nevertheless made clear that “the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue.” Id., at 1053. The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation “largely unmitigated” even though deficiencies in care “are unquestionably exacerbated by overcrowding” and “defendants’ ability to provide required mental health services would be enhanced consid erably by a reduction in the overall census” of the prisons. App. 486– 487. 28 BROWN v. PLATA Opinion of the Court to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations. As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic admin istrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to “ ‘a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.’ ” App. 966–967 (quoting Fletcher, The Discre tionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see also Hutto, 437 U.S., at 688 (noting “the interdependence of the con ditions producing the violation,” including overcrowd ing). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solution. The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See 18 U.S. C. §3626. The House Report accompanying the PLRA explained: “While prison caps must be the remedy of last re sort, a court still retains the power to order this remedy despite its intrusive nature and harmful con sequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner’s Cite as: 563 U. S. ____ (2011) 29 Opinion of the Court federal rights.” H. R. Rep. No. 104–21, p. 25 (1995). Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, n. 12 (1986). A finding that overcrowding is the “primary cause” of a violation is therefore permissi ble, despite the fact that additional steps will be required to remedy the violation. C The three-judge court was also required to find by clear and convincing evidence that “no other relief will remedy the violation of the Federal right.” §3626(a)(3)(E)(ii). The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical per sonnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons’ design capacity. And the three-judge court’s order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court’s order on that basis. The evi dence at trial, however, supports the three-judge court’s conclusion that an order limited to other remedies would not provide effective relief. The State’s argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail 30 BROWN v. PLATA Opinion of the Court because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order “has the purpose or effect of reducing or limiting the prison population, or . . . directs the release from or nonadmission of prisoners to a prison.” §3626(g)(4). The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court’s order. They are not a less restrictive alternative to that order. Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Cole man District Court slowed the rate of transfer by requir ing inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condition. Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court’s decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California’s ongoing fiscal crisis, the three-judge court deemed “chimerical” any “remedy that requires significant additional spending by the state.” Juris. App. 151a. Events subsequent to the —————— 9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison population. In light of the State’s longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief. Cite as: 563 U. S. ____ (2011) 31 Opinion of the Court three-judge court’s decision have confirmed this conclu sion. In October 2010, the State notified the Coleman District Court that a substantial component of its con struction plans had been delayed indefinitely by the legis lature. And even if planned construction were to be completed, the Plata Receiver found that many so-called “expansion” plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 151a–152a. The former acting secretary of the California prisons explained that these plans would “ ‘compound the burdens imposed on prison administrators and line staff’’ ” by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. Id., at 152a. The three-judge court also rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the ade quate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See supra, at 20. The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court also concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients. The three-judge court also did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that over crowding posed a significant barrier to their efforts. The 32 BROWN v. PLATA Opinion of the Court Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would “all but bankrupt” the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous reme dial efforts had “succumbed to the inexorably rising tide of population.” App. 489. Both reports are persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State. Noth ing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary re sources would be made available. The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possi ble to hope that these violations would be cured without a reduction in overcrowding. A long history of failed reme dial orders, together with substantial evidence of over crowding’s deleterious effects on the provision of care, compels a different conclusion today. The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature re cently failed to allocate funds for planned new construc Cite as: 563 U. S. ____ (2011) 33 Opinion of the Court tion. Supra, at 30–31. Without a reduction in overcrowd ing, there will be no efficacious remedy for the unconsti tutional care of the sick and mentally ill in California’s prisons. D The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the violation. 18 U.S. C. §3626(a). When determining whether these requirements are met, courts must “give substantial weight to any ad verse impact on public safety or the operation of a criminal justice system.” Ibid. 1 The three-judge court acknowledged that its order “is likely to affect inmates without medical conditions or serious mental illness.” Juris. App. 172a. This is because reducing California’s prison population will require reduc ing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will also have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. Ac cording to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary. The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailor ing requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends.’ ” Board of Trus 34 BROWN v. PLATA Opinion of the Court tees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation. This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitution. Lewis v. Casey, 518 U.S. 343, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs.” 18 U.S. C. §3626(a)(1)(A). This means only that the scope of the order must be determined with reference to the consti tutional violations established by the specific plaintiffs before the court. This case is unlike cases where courts have impermis sibly reached out to control the treatment of persons or institutions beyond the scope of the violation. See Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977). Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with rou- tine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treat ment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class mem bers who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates Cite as: 563 U. S. ____ (2011) 35 Opinion of the Court the Eighth Amendment, but in no sense are they remote bystanders in California’s medical care system. They are that system’s next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, “release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates.” Consolidated Reply Brief for Appellants 34. The order of the three judge court gives the State substantial flexibility to determine who should be released. If the State truly be lieves that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institution. The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to sys temwide relief when it conceded the existence of a viola tion. Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing system wide deficiencies in medical and mental health care. California’s medical care program is run at a systemwide level, and resources are shared among the correctional facilities. Although the three-judge court’s order addresses the entire California prison system, it affords the State flexi bility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it 36 BROWN v. PLATA Opinion of the Court so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate over crowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative—a series of institution-specific population limits—would require federal judges to make these choices. Leaving this discre tion to state officials does not make the order overbroad. Nor is the order overbroad because it limits the State’s authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State’s authority in the realm of prison administration, it does so in a manner that leaves much to the State’s discre tion. The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons’ capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduc tion. The order’s limited scope is necessary to remedy a constitutional violation. As the State implements the order of the three-judge court, time and experience may reveal targeted and effec tive remedies that will end the constitutional violations even without a significant decrease in the general prison population. The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious consideration. See infra, at 45–48. At this time, the State has not proposed any realistic alternative to the order. The State’s desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. Cite as: 563 U. S. ____ (2011) 37 Opinion of the Court 2 In reaching its decision, the three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population “in a manner that preserves public safety and the operation of the criminal justice system.” Juris. App. 247a–248a. The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to cer tify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.” Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be ex pected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when neces sary. See supra, at 28–29. A court is required to consider the public safety consequences of its order and to struc ture, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional violation. This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when 38 BROWN v. PLATA Opinion of the Court those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administration. The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s pris ons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over crowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and mis conduct, . . . and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the Cali fornia prison system testified that she “ ‘absolutely be lieve[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 Id., at 129a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population —————— 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘crimino genic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” Id., at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Nation. App. 1246. And the three judge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a. Cite as: 563 U. S. ____ (2011) 39 Opinion of the Court may “actually improve on public safety because they ad dress the problems that brought people to jail.” Tr. 1552– 1553. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, includ ing certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleteri ous effect on crime.” Tr. 2008–2009. In light of this evi dence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” —————— 11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadel phia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” Id., at 212 (statement of David Richman). The Philadelphia decree was also different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 (ED Pa. 1991); see also Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses. 40 BROWN v. PLATA Opinion of the Court of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of re ducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condi tion of their parole, and it could reduce the prison popula tion by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by over crowding. See supra, at 23–24. The court’s order took account of public safety concerns by giving the State sub stantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison popula tion in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state —————— 12 Expanding such community-based measures may require an ex penditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison popula tion and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources. Cite as: 563 U. S. ____ (2011) 41 Opinion of the Court prison officials. The court was not required to second guess the exercise of that discretion. Courts should pre sume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy deci sions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison popula tion. See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their condi tions of parole ‘serve any custody term in county jail.’ ” Ibid. These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety. III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a de gree of judgment. The inquiry involves uncertain predic tions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu lation levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” Hutto, 437 U.S., at 687, n. 9 (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977), in turn quoting Swann v. 42 BROWN v. PLATA Opinion of the Court Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971)). Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. 18 U.S. C. §3626(a). When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must also order the population reduc tion achieved in the shortest period of time reasonably consistent with public safety. A The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as 100% of design capacity. The chief deputy secretary of Correc tional Healthcare Services for the California prisons tes tified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. Id., at 179a–180a. A former head of cor rectional systems in Washington State, Maine, and Penn sylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” Id., at 180a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appro priate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” Ibid. And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Ibid. Cite as: 563 U. S. ____ (2011) 43 Opinion of the Court According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional violation. Of course, courts must not confuse professional standards with con stitutional requirements. Rhodes v. Chapman, 452 U.S. 337, 348, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is accept able in corrections philosophy. See supra, at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this profes sional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Profes sional standards may be “helpful and relevant with re spect to some questions.” Chapman, supra, at 348, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the “evi dence in support of a 130% limit is strong,” it found that 44 BROWN v. PLATA Opinion of the Court some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 183a, 184a. The three-judge court noted evidence support ing a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, id., at 181a–182a, although the relevance of that determina tion was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself con cedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court con cluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are also no scientific tools available to determine the precise population reduction necessary to remedy a consti tutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring require ment is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case. B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument Cite as: 563 U. S. ____ (2011) 45 Opinion of the Court before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 151% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to imple ment measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs pro posed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year dead line. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discretion. “The power of a court of equity to modify a decree of injunctive 46 BROWN v. PLATA Opinion of the Court relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. Id., at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three judge court must remain open to a showing or demonstra tion by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection. Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” 18 U.S. C. §3626(a)(1)(A), the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the Cite as: 563 U. S. ____ (2011) 47 Opinion of the Court required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduction. The three-judge court may also condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may also con sider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying consti tutional violations, that progress may demonstrate that further population reductions are not necessary or are less 48 BROWN v. PLATA Opinion of the Court urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex tend or modify this timeline. Experience with the three-judge court’s order may also lead the State to suggest other modifications. The three judge court should give any such requests serious consid eration. The three-judge court should also formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modification. They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed. It is so ordered. Cite as: 563 U. S. ____ (2011) 49 Opinion of the Court APPENDIXES A 18 U.S. C. §3626: “(a) REQUIREMENTS FOR RELIEF. “(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. . . . . . “(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. “(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request 50 BROWN v. PLATA Opinion of the Court for a three-judge court and materials sufficient to demon strate that the requirements of subparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. “(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evi dence that— “(i) crowding is the primary cause of the violation of a Federal right; and “(ii) no other relief will remedy the violation of the Fed eral right. “(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not ad mitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continua tion in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any pro ceeding relating to such relief. . . . . . (g) DEFINITIONS.—As used in this section . . . . . “(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the re lease from or nonadmission of prisoners to a prison . . . .” Cite as: 563 U. S. ____ (2011) 51 Opinion of the Court B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 52 BROWN v. PLATA Opinion of the Court C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people wait ing for mental health crisis bed) Cite as: 563 U. S. ____ (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–1233 _________________ EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef fective absent a reduction in the prison system popula The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend 2 BROWN v. PLATA Opinion of the Court ment is a power reserved to a three-judge district court, not a single-judge district court. U.S. C. In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interre lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). U.S. C. see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre tion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis taken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large num bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern. At the time of trial, California’s correctional facilities held some 6,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison popu Cite as: 563 U. S. (2011) 3 Opinion of the Court lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis criminate manner or in these substantial numbers if sat isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece dented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional re quirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provi sion of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” U.S. C. specifically the severe and unlawful mistreatment of prisoners 4 BROWN v. PLATA Opinion of the Court through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the three judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed. I A The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correc tional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely over crowded, imperiling the safety of both correctional em ployees and inmates.’ ”1 Juris. Statement App., O. T. 2009, —————— 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tail spin,” at i. Cite as: 563 U. S. (2011) 5 Opinion of the Court No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emer gency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” at 61a. The consequences of overcrowding identified by the Governor include “ ‘in creased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for pro longed periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert re ported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. —————— At trial, current and former California prison officials testified to the degree of overcrowding. Jeanne Woodford, who recently adminis tered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” And Robin Dezember, chief deputy secretary of Cor rectional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on every body in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con ditions in California’s prisons as “appalling,” “inhumane,” and “unac ceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate ac” 6 BROWN v. PLATA Opinion of the Court Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treat ment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Prisoners suffering from physical illness receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at % of design capacity and so have only half the clinical space needed to treat the current popula A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face signifi cant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest —————— 2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceed ing the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or inter vention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deteriora” No de tailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide preven” App. 868. Cite as: 563 U. S. (2011) 7 Opinion of the Court pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receiv ership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, sur veyed death reviews for California prisoners. He con cluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “ex tremely high.”4 Many more prisoners, suffer —————— 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Consti tution under if consid ered in isola Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 pre ventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) 8 BROWN v. PLATA Opinion of the Court ing from severe but not life-threatening conditions, experi ence prolonged illness and unnecessary pain. B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to de liver necessary care to mentally ill inmates” in California prisons. (ED Cal.). The prisons were “seriously and chronically under staffed,” and had “no effective method for ensuring the competence of their staff,” The prisons had failed to implement necessary suicide prevention procedures, “due in large measure to the severe understaffing.” Mentally ill inmates “lan guished for months, or even years, without access to nec essary care.” at “They suffer from severe hallu cinations, [and] they decompensate into catatonic states.” The court appointed a Special Master to oversee development and implementation of a remedial plan of ac In 2007, 12 years after his appointment, the Special —————— (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evi dence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48. Cite as: 563 U. S. (2011) 9 Opinion of the Court Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California’s prisons was deteriorating. App. 489. The Special Master ascribed this change to increased over crowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the “growth of the resource [had] not matched the rise in demand.” at 482. At the very time the need for space was rising, the need to house the expanding population had caused a “reduction of programming space now occupied by inmate bunks.” The State was “facing a four to five year gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients.” “[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs.” The Special Master concluded that many early “achievements have succumbed to the inexo rably rising tide of population, leaving behind growing frustration and despair.” C The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that defi ciencies in prison medical care violated prisoners’ Eighth Amendment rights. The State stipulated to a remedial injunc The State failed to comply with that injunc tion, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to 10 BROWN v. PLATA Opinion of the Court constitutional deficiencies in the [California prisons’] medical delivery system.” And the court made findings regarding specific instances of neglect, including the following: “[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medica tions that actually served to exacerbate his renal fail ure. An optometrist noted the patient’s retinal bleed ing due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the pa tient’s renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the pa tient died three months later.” (citations omitted). Prisons were unable to retain sufficient numbers of com petent medical staff, and would “hire any doctor who had ‘a license, a pulse and a pair of shoes,’ ” at 926. Medical facilities lacked “necessary medical equip ment” and did “not meet basic sanitation standards.” at 944. “Exam tables and counter tops, where prisoners with communicable diseases are treated, [were] not routinely disinfected.” In 2008, three years after the District Court’s decision, the Receiver described continuing deficiencies in the health care provided by California prisons: “Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured. Adequate housing for the dis abled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of dis repair. Basic medical equipment is often not available or used. Medications and other treatment options are Cite as: 563 U. S. (2011) 11 Opinion of the Court too often not available when needed. Indeed, it is a misnomer to call the existing chaos a ‘medical deliv ery system’—it is more an act of desperation than a system.” Record in No. 3:01–CV–01351–TEH (ND Cal.), Doc. 1136, p. 5. A report by the Receiver detailed the impact of overcrowd ing on efforts to remedy the viola The Receiver ex plained that “overcrowding, combined with staffing short ages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult.” App. 1. “[O]vercrowding, and the resulting day to day operational chaos of the [prison sys tem], creates regular ‘crisis’ situations which take time [and] energy away from important remedial pro grams.” Overcrowding had increased the incidence of infectious disease, –8, and had led to rising prison violence and greater reliance by custo dial staff on lockdowns, which “inhibit the delivery of medical care and increase the staffing necessary for such care.” “Every day,” the Receiver reported, “California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman or Plata they will fail to comply with because of staff shortages and patient loads.” D The Coleman and Plata plaintiffs, believing that a rem edy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a three judge court empowered under the PLRA to order reduc tions in the prison popula The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not chal lenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this 12 BROWN v. PLATA Opinion of the Court appeal. The three-judge court heard 14 days of testimony and issued a 4-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court. The State appealed to this Court pursuant to 28 U.S. C. and the Court postponed consideration of the ques tion of jurisdiction to the hearing on the merits. Schwar zenegger v. Plata, 560 U. S. (2010). II As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dig nity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ” (plurality opinion)). To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may Cite as: 563 U. S. (2011) 13 Opinion of the Court actually produce physical ‘torture or a lingering death.’ ” ); see generally A. Elsner, Gates of Injustice: The Crisis in America’s Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, includ ing adequate medical care, is incompatible with the con cept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment viola See 687, n. 9 (1978). Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and danger ous task of housing large numbers of convicted criminals. See Courts nevertheless must not shrink from their obligation to “en force the constitutional rights of all ‘persons,’ including prisoners.” (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administra Courts faced with the sensitive task of remedying un constitutional prison conditions must consider a range of available options, including appointment of special mas ters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitu tional mandate, courts may enter orders placing limits on a prison’s popula By its terms, the PLRA restricts the circumstances in which a court may enter an order “that has the purpose or effect of reducing or limiting the prison popula” U.S. C. The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design 14 BROWN v. PLATA Opinion of the Court capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of de sign capacity, it nonetheless has the “effect of reducing or limiting the prison popula” Under the PLRA, only a three-judge court may enter an order limiting a prison popula Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. The party request ing a three-judge court must then submit “materials suffi cient to demonstrate that [these requirements] have been met.” If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. ; see 28 U.S. C. (stating that a three-judge court may not be convened if the district court “determines that three judges are not required”); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure (3d ed. 2007). The three-judge court must then find by clear and con vincing evidence that “crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” U.S. C. As with any award of prospective relief under the PLRA, the relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” The three-judge court must therefore find that the relief is “narrowly drawn, extends no further than necessary and is the least intrusive means necessary to correct the violation of the Federal right.” In making this de termination, the three-judge court must give “substantial weight to any adverse impact on public safety or the op eration of a criminal justice system caused by the relief.” Cite as: 563 U. S. (2011) Opinion of the Court Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case. This Court’s review of the three-judge court’s legal determinations is de novo, but factual findings are re viewed for clear error. See v. Bessemer City, 470 U.S. 564, 573–574 (1985). Deference to trial court fact finding reflects an understanding that “[t]he trial judge’s major role is the determination of fact, and with experi ence in fulfilling that role comes expertise.” The three-judge court oversaw two weeks of trial and heard at considerable length from California prison offi cials, as well as experts in the field of correctional admini stra The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had over seen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fash ion a remedy for this complex and intractable constitu tional viola The three-judge court’s findings of fact may be reversed only if this Court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” ). A The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata. 1 The parties dispute this Court’s jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the 16 BROWN v. PLATA Opinion of the Court District Courts. When exercising jurisdiction under 28 U.S. C. however, this Court “has not hesitated to exercise jurisdiction ‘to determine the authority of the court below,’ ” including whether the three-judge court was properly constituted. ); see (19) (“The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action”). The merits of the decision to con vene the three-judge court, therefore, are properly before this Court. 2 Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied.” U.S. C. This provision refers to “an order.” It is satisfied if the court has entered one order, and this sin gle order has “failed to remedy” the constitutional viola The defendant must have had “a reasonable amount of time to comply with the previous court orders.” This provision refers to the court’s “orders.” It requires that the defendant have been given a reasonable time to comply with all of the court’s orders. Together, these requirements ensure that the “ ‘last resort remedy’ ” of a population limit is not imposed “ ‘as a first step.’ ” Inmates of (CADC 1988). The first of these conditions, the previous order re quirement of was satisfied in Coleman by appointment of a Special Master in 1995, and it was Cite as: 563 U. S. (2011) 17 Opinion of the Court satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief “remains necessary to correct a current and ongoing violation of the Federal right,” California has not attempted to obtain relief on this basis. The State claims instead that the second condition, the reasonable time requirement of was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for con struction of new facilities, hiring of new staff, and im plementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State’s ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms. Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new devel opments in the courts’ remedial efforts, the basic plan to solve the crisis through construction, hiring, and proce dural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The BROWN v. PLATA Opinion of the Court Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduc Instead, the Coleman Special Master explained that “many of the clinical advances painfully accomplished over the past decade are slip-sliding away” as a result of overcrowding. App. 481–482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could “all but bankrupt” the State of California. App. 1053. Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reason able time to succeed, but reasonableness must be assessed in light of the entire history of the court’s remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a morato rium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts’ involve ment, serving neither the State nor the prisoners. Con gress did not require this unreasonable result when it used the term “reasonable.” The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Cite as: 563 U. S. (2011) 19 Opinion of the Court Special Master in July 2009 describes ongoing violations, including an “absence of timely access to appropriate levels of care at every point in the system.” App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply “too many pris oners for the healthcare infrastructure.” The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay. B Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that “crowding is the primary cause of the violation of a Federal right.” U.S. C. 1 The three-judge court found the primary cause require ment satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic condi tions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court found that “until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison popula” Juris. App. 141a. The parties dispute the standard of review applicable to this determina With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferen tial. It is not this Court’s place to “duplicate the role” of the trial court. 470 U.S., The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, “the mix weighs heavily on the 20 BROWN v. PLATA Opinion of the Court ‘fact’ side.” (Rehnquist, C. J., concurring in judgment). Because the “district court is ‘better positioned’ to decide the issue,” our review of the three-judge court’s primary cause deter mination is deferential. Salve Regina The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the se verity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, “even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, the prisons would still be unable to handle the level of need given the current overcrowding.” Record in No. 2:90–CV–00520–LKK–JFM (ED Cal.), Doc. 3231–13, p. 16 (hereinafter Doc. 3231–13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are “managing far larger caseloads than is appropriate or effective.” App. 596. A prison psychiatrist told Dr. Haney that “ ‘we are doing about 50% of what we should be doing.’ ” In the context of physical care Dr. Shansky agreed that “demand for care, particularly for the high priority cases, continues to overwhelm the resources —————— 5 Dr. Craig Haney likewise testified that the State had “significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements,” that “key tasks were omitted when determining staffing workloads,” and that estimates were based on “key assumptions” that caused the State to underestimate demand for mental health care. App. 596–597. Cite as: 563 U. S. (2011) 21 Opinion of the Court available.” Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the “newest and most modern pris ons” had been “designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons.” App. 1023 (emphasis deleted). Dr. Haney re ported that “[e]ach one of the facilities I toured was short of significant amounts of space needed to perform other wise critical tasks and responsibilities.” at 597–598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bath rooms, shower rooms, and visiting centers. These make shift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff. This shortfall of resources relative to demand contrib utes to significant delays in treatment. Mentally ill pris oners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for “ ‘6 months or more.’ ” App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6 Delays are no less severe in the context of physical care. —————— 6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, “[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observa” App. 736. The prisoner “hanged himself that night in his cell.” ; see Juris. App. 99a. 22 BROWN v. PLATA Opinion of the Court Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231–13, at A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. at 22–23. Urgent specialty referrals at one prison had been pending for six months to a year. at 27. Crowding creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as “ ‘breeding grounds for disease.’ ”7 Juris. App. 102a. Cramped conditions promote unrest and vio lence, making it difficult for prison officials to monitor and control the prison popula On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was as saulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may impede efforts to improve delivery of —————— 7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners “bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.” Tr. 601, 604–605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to “more than half ” the 0 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. at 720–721. Cite as: 563 U. S. (2011) 23 Opinion of the Court care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup port a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. at 769–777. More gen erally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “ ‘are simply too many issues that arise from such a large number of pris oners,’ ” and that, as a result, “ ‘management spends virtu ally all of its time fighting fires instead of engaging in thoughtful decision-making and planning’ ” of the sort needed to fashion an effective remedy for these constitu tional violations. Juris. App. 82a. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. at 116a. The average lock down lasted 12 days, and 20 lockdowns lasted 60 days or longer. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications. The effects of overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. at 85a. Crowding in these areas runs as high as 300% of design capacity. at 86a. Living conditions are “ ‘toxic,’ ” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and pro vide even rudimentary care. at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with 24 BROWN v. PLATA Opinion of the Court physicals or provid[e] any kind of chronic care follow-up.’ ” at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general popula Some prisoners are held in the reception centers for their entire period of incarcera Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the Califor nia prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” at 83a. The former executive director of the Texas Department of Criminal Justice testified that “ ‘[e]verything revolves around overcrowding” and that “ ‘overcrowding is the primary cause of the medical and mental health care violations.’ ” 7a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ ‘overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.’ ” And the current secretary of the Pennsylvania Depart ment of Corrections testified that “ ‘‘the biggest inhibiting factor right now in California being able to deliver appro priate mental health and medical care is the severe over crowding.’ ” at 82a. 2 The State attempts to undermine the substantial evi dence presented at trial, and the three-judge court’s find ings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison condi tions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on Cite as: 563 U. S. (2011) 25 Opinion of the Court recent observations of prison conditions; the court ad mitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, includ ing understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See at 4–8, 19–24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. ; see 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231–13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); 45 (Austin); The three-judge court’s opinion cited and relied on this evidence of current conditions. The court relied exten sively on the expert witness reports. See generally Juris. App. 85a–143a. The court cited the most current data available on suicides and preventable deaths in the Cali fornia prisons. 3a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, at 105a, 108a, and statistics on shortages of treatment beds for the same period, at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations. It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of “changed prison conditions” after that date would not be admitted. App. 26 BROWN v. PLATA Opinion of the Court 1190. The court excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the exis tence of an ongoing constitutional viola The court reasoned that its decision was limited to the issue of rem edy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered “[t]o the extent that it illuminates questions that are properly before the court.” App. 9. Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litiga tion of the merits and the remedy. The State in fact represented to the three-judge court that it would be “ap propriate” to cut off discovery before trial because “like plaintiffs, we, too, are really gearing up and going into a pretrial mode.” And if the State truly be lieved there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a three judge court should not be convened because the District Courts’ prior orders had not “failed to remedy the dep rivation” of prisoners’ constitutional rights. U.S. C. see at 16–17. Once the three judge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit. The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the three judge court was based on current evidence pertaining to ongoing constitutional violations. 3 The three-judge court acknowledged that the violations Cite as: 563 U. S. (2011) 27 Opinion of the Court were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the pri mary cause in the sense of being the foremost cause of the viola This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. “Primary” is defined as “[f]irst or highest in rank, quality, or importance; princi pal.” American Heritage Dictionary 1393 (4th ed. 2000); see Webster’s Third New International Dictionary 00 (defining “primary” as “first in rank or impor tance”); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining “primary” as “[o]f the first or highest rank or importance; that claims the first consideration; principal, chief ”). Overcrowding need only be the foremost, chief, or principal cause of the viola If Congress had intended —————— 8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were “simply wrong.” App. 1054–1055. The Receiver nevertheless made clear that “the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue.” The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation “largely unmitigated” even though deficiencies in care “are unquestionably exacerbated by overcrowding” and “defendants’ ability to provide required mental health services would be enhanced consid erably by a reduction in the overall census” of the prisons. App. 486– 487. 28 BROWN v. PLATA Opinion of the Court to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations. As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic admin istrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to “ ‘a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.’ ” App. 966–967 (quoting Fletcher, The Discre tionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see (noting “the interdependence of the con ditions producing the violation,” including overcrowd ing). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solu The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See U.S. C. The House Report accompanying the PLRA explained: “While prison caps must be the remedy of last re sort, a court still retains the power to order this remedy despite its intrusive nature and harmful con sequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner’s Cite as: 563 U. S. (2011) 29 Opinion of the Court federal rights.” H. R. Rep. No. 104–21, p. 25 (1995). Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, n. 12 (1986). A finding that overcrowding is the “primary cause” of a violation is therefore permissi ble, despite the fact that additional steps will be required to remedy the viola C The three-judge court was required to find by clear and convincing evidence that “no other relief will remedy the violation of the Federal right.” The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical per sonnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons’ design capacity. And the three-judge court’s order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court’s order on that basis. The evi dence at trial, however, supports the three-judge court’s conclusion that an order limited to other remedies would not provide effective relief. The State’s argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail 30 BROWN v. PLATA Opinion of the Court because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order “has the purpose or effect of reducing or limiting the prison population, or directs the release from or nonadmission of prisoners to a prison.” The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court’s order. They are not a less restrictive alternative to that order. Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Cole man District Court slowed the rate of transfer by requir ing inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condi Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court’s decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California’s ongoing fiscal crisis, the three-judge court deemed “chimerical” any “remedy that requires significant additional spending by the state.” Juris. App. 1a. Events subsequent to the —————— 9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison popula In light of the State’s longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief. Cite as: 563 U. S. (2011) 31 Opinion of the Court three-judge court’s decision have confirmed this conclu sion. In October 2010, the State notified the Coleman District Court that a substantial component of its con struction plans had been delayed indefinitely by the legis lature. And even if planned construction were to be completed, the Plata Receiver found that many so-called “expansion” plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 1a–2a. The former acting secretary of the California prisons explained that these plans would “ ‘compound the burdens imposed on prison administrators and line staff’’ ” by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. at 2a. The three-judge court rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the ade quate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients. The three-judge court did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that over crowding posed a significant barrier to their efforts. The 32 BROWN v. PLATA Opinion of the Court Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would “all but bankrupt” the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous reme dial efforts had “succumbed to the inexorably rising tide of popula” App. 489. Both reports are persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State. Noth ing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary re sources would be made available. The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possi ble to hope that these violations would be cured without a reduction in overcrowding. A long history of failed reme dial orders, together with substantial evidence of over crowding’s deleterious effects on the provision of care, compels a different conclusion today. The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature re cently failed to allocate funds for planned new construc Cite as: 563 U. S. (2011) 33 Opinion of the Court at 30–31. Without a reduction in overcrowd ing, there will be no efficacious remedy for the unconsti tutional care of the sick and mentally ill in California’s prisons. D The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the viola U.S. C. When determining whether these requirements are met, courts must “give substantial weight to any ad verse impact on public safety or the operation of a criminal justice system.” 1 The three-judge court acknowledged that its order “is likely to affect inmates without medical conditions or serious mental illness.” Juris. App. 172a. This is because reducing California’s prison population will require reduc ing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. Ac cording to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary. The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailor ing requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends.’ ” Board of Trus BROWN v. PLATA Opinion of the Court tees of State Univ. of N. (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the viola This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitu Lewis v. Casey, 5 U.S. 3, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs.” U.S. C. This means only that the scope of the order must be determined with reference to the consti tutional violations established by the specific plaintiffs before the court. This case is unlike cases where courts have impermis sibly reached out to control the treatment of persons or institutions beyond the scope of the viola See Dayton Bd. of Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with rou- tine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treat ment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class mem bers who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates Cite as: 563 U. S. (2011) 35 Opinion of the Court the Eighth Amendment, but in no sense are they remote bystanders in California’s medical care system. They are that system’s next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, “release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates.” Consolidated Reply Brief for Appellants The order of the three judge court gives the State substantial flexibility to determine who should be released. If the State truly be lieves that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court. The order is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institu The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to sys temwide relief when it conceded the existence of a viola Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing system wide deficiencies in medical and mental health care. California’s medical care program is run at a systemwide level, and resources are shared among the correctional facilities. Although the three-judge court’s order addresses the entire California prison system, it affords the State flexi bility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it 36 BROWN v. PLATA Opinion of the Court so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate over crowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative—a series of institution-specific population limits—would require federal judges to make these choices. Leaving this discre tion to state officials does not make the order overbroad. Nor is the order overbroad because it limits the State’s authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State’s authority in the realm of prison administration, it does so in a manner that leaves much to the State’s discre The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons’ capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduc The order’s limited scope is necessary to remedy a constitutional viola As the State implements the order of the three-judge court, time and experience may reveal targeted and effec tive remedies that will end the constitutional violations even without a significant decrease in the general prison popula The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious considera See infra, at 45–48. At this time, the State has not proposed any realistic alternative to the order. The State’s desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. Cite as: 563 U. S. (2011) 37 Opinion of the Court 2 In reaching its decision, the three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population “in a manner that preserves public safety and the operation of the criminal justice system.” Juris. App. 247a–248a. The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to cer tify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.” Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be ex pected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when neces sary. See at 28–29. A court is required to consider the public safety consequences of its order and to struc ture, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional viola This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when 38 BROWN v. PLATA Opinion of the Court those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administra The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s pris ons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over crowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and mis conduct, and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the Cali fornia prison system testified that she “ ‘absolutely be lieve[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 9a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population —————— 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘crimino genic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Na App. 1246. And the three judge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a. Cite as: 563 U. S. (2011) 39 Opinion of the Court may “actually improve on public safety because they ad dress the problems that brought people to jail.” Tr. 52– 53. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, includ ing certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleteri ous effect on crime.” Tr. 2008–2009. In light of this evi dence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” —————— 11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadel phia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” at 212 (statement of David Richman). The Philadelphia decree was different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 ; see Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses. 40 BROWN v. PLATA Opinion of the Court of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of re ducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condi tion of their parole, and it could reduce the prison popula tion by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by over crowding. See at 23–24. The court’s order took account of public safety concerns by giving the State sub stantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison popula tion in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state —————— 12 Expanding such community-based measures may require an ex penditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison popula tion and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources. Cite as: 563 U. S. (2011) 41 Opinion of the Court prison officials. The court was not required to second guess the exercise of that discre Courts should pre sume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy deci sions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison popula See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their condi tions of parole ‘serve any custody term in county jail.’ ” These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety. III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a de gree of judgment. The inquiry involves uncertain predic tions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu lation levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” n. 9 in turn quoting Swann v. 42 ). Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. U.S. C. When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must order the population reduc tion achieved in the shortest period of time reasonably consistent with public safety. A The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as % of design capacity. The chief deputy secretary of Correc tional Healthcare Services for the California prisons tes tified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial % of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. at 179a–0a. A former head of cor rectional systems in Washington State, Maine, and Penn sylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” at 0a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appro priate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Cite as: 563 U. S. (2011) 43 Opinion of the Court According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional viola Of course, courts must not confuse professional standards with con stitutional requirements. Rhodes v. 452 U.S. 337, 8, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is accept able in corrections philosophy. See at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this profes sional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Profes sional standards may be “helpful and relevant with re spect to some questions.” at 8, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the “evi dence in support of a 130% limit is strong,” it found that 44 BROWN v. PLATA Opinion of the Court some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 3a, 4a. The three-judge court noted evidence support ing a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, at 1a–2a, although the relevance of that determina tion was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself con cedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court con cluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are no scientific tools available to determine the precise population reduction necessary to remedy a consti tutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring require ment is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case. B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument Cite as: 563 U. S. (2011) 45 Opinion of the Court before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 1% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to imple ment measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs pro posed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year dead line. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discre “The power of a court of equity to modify a decree of injunctive 46 BROWN v. PLATA Opinion of the Court relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three judge court must remain open to a showing or demonstra tion by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protec Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” U.S. C. the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the Cite as: 563 U. S. (2011) 47 Opinion of the Court required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduc The three-judge court may condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may con sider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying consti tutional violations, that progress may demonstrate that further population reductions are not necessary or are less 48 BROWN v. PLATA Opinion of the Court urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex tend or modify this timeline. Experience with the three-judge court’s order may lead the State to suggest other modifications. The three judge court should give any such requests serious consid era The three-judge court should formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modifica They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed. It is so ordered. Cite as: 563 U. S. (2011) 49 Opinion of the Court APPENDIXES A U.S. C. “(a) REQUIREMENTS FOR RELIEF. “(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. “(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. “(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request 50 BROWN v. PLATA Opinion of the Court for a three-judge court and materials sufficient to demon strate that the requirements of subparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. “(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evi dence that— “(i) crowding is the primary cause of the violation of a Federal right; and “(ii) no other relief will remedy the violation of the Fed eral right. “(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not ad mitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continua tion in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any pro ceeding relating to such relief. (g) DEFINITIONS.—As used in this section “(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the re lease from or nonadmission of prisoners to a prison” Cite as: 563 U. S. (2011) 51 Opinion of the Court B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 52 BROWN v. PLATA Opinion of the Court C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people wait ing for mental health crisis bed) Cite as: 563 U. S. (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

Justice Thomas

majority

Dooley v. Korean Air Lines Co.

https://www.courtlistener.com/opinion/118223/dooley-v-korean-air-lines-co/

https://www.courtlistener.com/api/rest/v3/clusters/118223/

1997-080

In a case of death on the high seas, the Death on the High Seas Act, 46 U.S. C. App. § 761 et seq., allows certain relatives of the decedent to sue for their pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. This case presents the question whether those relatives may nevertheless recover such damages through a survival action under general maritime law. We hold that they may not. I On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. All 269 people on board were killed. Petitioners, the personal representatives of three of the passengers, brought lawsuits against respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the District of Columbia. These cases were consolidated in that court, along with the other federal actions arising out of the crash. After trial, a jury found that KAL had committed "willful misconduct," thus removing the Warsaw Convention's $75,000 cap on damages, and in a subsequent verdict awarded $50 million in punitive damages. The Court of Appeals for the District of Columbia Circuit upheld the finding of willful misconduct, but vacated the punitive damages award on the ground that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, cert. denied, 502 U.S. 994 (1991). The Judicial Panel on Multi district Litigation thereafter remanded, for damages trials, all of the individual cases to the District Courts in which they had been filed. In petitioners' cases, KAL moved for a pretrial determination that the Death on the High Seas Act (DOHSA or Act), 46 U.S. C. *119 App. § 761 et seq., provides the exclusive source of recoverable damages. DOHSA provides, in relevant part: "Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative . . . ." § 761. "The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . ." § 762. KAL argued that, in a case of death on the high seas, DOHSA provides the exclusive cause of action and does not permit damages for loss of society, survivors' grief, and decedents' pre-death pain and suffering. The District Court for the District of Columbia disagreed, holding that because petitioners' claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. The court determined that Article 17 of the Warsaw Convention "allows for the recovery of all `damages sustained,' " meaning any "actual harm" that any party "experienced" as a result of the crash. App. 59. While petitioners' cases were awaiting damages trials, we reached a different conclusion in Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), another case arising out of the downing of Flight KE007. In Zicherman, we held that the Warsaw Convention "permit[s] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules," and that where "an *120 airplane crash occurs on the high seas, DOHSA supplies the substantive United States law." Id., at 231. Accordingly, the petitioners could not recover damages for loss of society: "[W]here DOHSA applies, neither state law, see Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232-233 (1986), nor general maritime law, see Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625-626 (1978), can provide a basis for recovery of loss-of-society damages." Id., at 230. We did not decide, however, whether the petitioners in Zicherman could recover for their decedents' pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. See id., at 230, n. 4. After the Zicherman decision, KAL again moved to dismiss all of petitioners' claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages——including petitioners' claims for their decedents' predeath pain and suffering. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15 (1996). On appeal, petitioners argued that, although DOHSA does not itself permit recovery for a decedent's pre-death pain and suffering, general maritime law provides a survival action that allows a decedent's estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F.3d 1477 (CADC 1997). Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas: "For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Congress *121 made the law and it is up to Congress to change it." Id., at 1481. We granted certiorari, 522 U.S. 1038 (1998), to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with Gray v. Lockheed Aeronautical Systems Co., 125 F.3d 1371, 1385 (CA11 1997). II Before Congress enacted DOHSA in 1920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person's death. See The Harrisburg, 119 U.S. 199, 213 (1886); The Alaska, 130 U.S. 201, 209 (1889).[1] Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for "the death of a person . . . caused by wrongful act, neglect, or default occurring on the high seas," § 761; this action must be brought by the decedent's personal representative "for the exclusive benefit of the decedent's wife, husband, parent, *122 child, or dependent relative," ibid. The Act limits recovery in such a suit to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought." § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, "the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762." § 765. Other sections establish a limitations period, § 763a, govern actions under foreign law, § 764, bar contributory negligence as a complete defense, § 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act's coverage, § 767, and preserve certain state-law remedies and state-court jurisdiction, ibid. DOHSA does not authorize recovery for the decedent's own losses, nor does it allow damages for nonpecuniary losses. In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978), we considered whether, in a case of death on the high seas, a decedent's survivors could recover damages under general maritime law for their loss of society. We held that they could not, and thus limited to territorial waters those cases in which we had permitted loss of society damages under general maritime law. Id., at 622-624; see n. 1, supra. For deaths on the high seas, DOHSA "announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages." 436 U.S., at 625. We thus noted that while we could "fil[l] a gap left by Congress' silence," we were not free to "rewrit[e] rules that Congress has affirmatively and specifically enacted." Ibid. Because "Congress ha[d] struck the balance for us" in DOHSA by limiting the available recovery to pecuniary losses suffered by surviving relatives, id., at 623, we had "no authority to substitute our views for those expressed by Congress," id., at 626. Hig- *123 ginbotham, however, involved only the scope of the remedies available in a wrongful-death action, and thus did not address the availability of other causes of action. Conceding that DOHSA does not authorize recovery for a decedent's pre-death pain and suffering, petitioners seek to recover such damages through a general maritime survival action. Petitioners argue that general maritime law recognizes a survival action, which permits a decedent's estate to recover damages that the decedent would have been able to recover but for his death, including pre-death pain and suffering. And, they contend, because DOHSA is a wrongful-death statute——giving surviving relatives a cause of action for losses they suffered as a result of the decedent's death——it has no bearing on the availability of a survival action. We disagree. DOHSA expresses Congress' judgment that there should be no such cause of action in cases of death on the high seas. By authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. Petitioners concede that their proposed survival action would necessarily expand the class of beneficiaries in cases of death on the high seas by permitting decedents' estates (and their various beneficiaries) to recover compensation. They further concede that their cause of action would expand the recoverable damages for deaths on the high seas by permitting the recovery of nonpecuniary losses, such as pre-death pain and suffering. Because Congress has already decided these issues, it has precluded the judiciary from enlarging either the class of beneficiaries or the recoverable damages. As we noted in Higginbotham, "Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements." Id., at 625. *124 The comprehensive scope of DOHSA is confirmed by its survival provision, see supra, at 122, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress' "considered judgment," Mobil Oil Corp. v. Higginbotham, supra, at 625, on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Act, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. See Act of June 5, 1920, § 33, 41 Stat. 1007 (incorporating survival action of the Federal Employers' Liability Act, 45 U.S. C. § 59). Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. In sum, Congress has spoken on the availability of a survival action, the losses to be recovered, and the beneficiaries, in cases of death on the high seas. Because Congress has chosen not to authorize a survival action for a decedent's pre-death pain and suffering, there can be no general maritime survival action for such damages.[2] The judgment of the Court of Appeals is Affirmed.

In a case of death on the high seas, the Death on the High Seas Act, 46 U.S. C. App. 76 et seq., allows certain relatives of the decedent to sue for their pecuniary losses, but does not authorize recovery for the decedent's pre-death pain and suffering. This case presents the question whether those relatives may nevertheless recover such damages through a survival action under general maritime law. We hold that they may not. I On September 983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. All 269 people on board were killed. Petitioners, the personal representatives of three of the passengers, brought lawsuits against respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the District of Columbia. These cases were consolidated in that court, along with the other federal actions arising out of the crash. After trial, a jury found that KAL had committed "willful misconduct," thus removing the Warsaw Convention's $75,000 cap on damages, and in a subsequent verdict awarded $50 million in punitive damages. The Court of Appeals for the District of Columbia Circuit upheld the finding of willful misconduct, but vacated the punitive damages award on the ground that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines of Sept. 983, The Judicial Panel on Multi district Litigation thereafter remanded, for damages trials, all of the individual cases to the District Courts in which they had been filed. In petitioners' cases, KAL moved for a pretrial determination that the Death on the High Seas Act (DOHSA or Act), 46 U.S. C. *9 App. 76 et seq., provides the exclusive source of recoverable damages. DOHSA provides, in relevant part: "Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative" 76. "The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought" 762. KAL argued that, in a case of death on the high seas, DOHSA provides the exclusive cause of action and does not permit damages for loss of society, survivors' grief, and decedents' pre-death pain and suffering. The District Court for the District of Columbia disagreed, holding that because petitioners' claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. The court determined that Article 7 of the Warsaw Convention "allows for the recovery of all `damages sustained,' " meaning any "actual harm" that any party "experienced" as a result of the crash. App. 59. While petitioners' cases were awaiting damages trials, we reached a different conclusion in another case arising out of the downing of Flight KE007. In Zicherman, we held that the Warsaw Convention "permit[s] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum's choice-of-law rules," and that where "an *20 airplane crash occurs on the high seas, DOHSA supplies the substantive United States law." Accordingly, the petitioners could not recover damages for loss of society: "[W]here DOHSA applies, neither state law, see Offshore Logistics, nor general maritime law, see Mobil Oil can provide a basis for recovery of loss-of-society damages." We did not decide, however, whether the petitioners in Zicherman could recover for their decedents' pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. See n. 4. After the Zicherman decision, KAL again moved to dismiss all of petitioners' claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages——including petitioners' claims for their decedents' predeath pain and suffering. In re Korean Air Lines of Sept. 983, On appeal, petitioners argued that, although DOHSA does not itself permit recovery for a decedent's pre-death pain and suffering, general maritime law provides a survival action that allows a decedent's estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. In re Korean Air Lines of Sept. 983, Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas: "For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Congress *2 made the law and it is up to Congress to change it." We granted certiorari, to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines 7 F. 3d, with II Before Congress enacted DOHSA in 920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person's death. See The Harrisburg, ; The Alaska,[] Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for "the death of a person caused by wrongful act, neglect, or default occurring on the high seas," 76; this action must be brought by the decedent's personal representative "for the exclusive benefit of the decedent's wife, husband, parent, *22 child, or dependent relative," The Act limits recovery in such a suit to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought." 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, "the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762." 765. Other sections establish a limitations period, 763a, govern actions under foreign law, 764, bar contributory negligence as a complete defense, 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act's coverage, 767, and preserve certain state-law remedies and state-court jurisdiction, DOHSA does not authorize recovery for the decedent's own losses, nor does it allow damages for nonpecuniary losses. In Mobil Oil we considered whether, in a case of death on the high seas, a decedent's survivors could recover damages under general maritime law for their loss of society. We held that they could not, and thus limited to territorial waters those cases in which we had permitted loss of society damages under general maritime law. ; see n. For deaths on the high seas, DOHSA "announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages." We thus noted that while we could "fil[l] a gap left by Congress' silence," we were not free to "rewrit[e] rules that Congress has affirmatively and specifically enacted." Because "Congress ha[d] struck the balance for us" in DOHSA by limiting the available recovery to pecuniary losses suffered by surviving relatives, we had "no authority to substitute our views for those expressed by Congress," Hig- *23 ginbotham, however, involved only the scope of the remedies available in a wrongful-death action, and thus did not address the availability of other causes of action. Conceding that DOHSA does not authorize recovery for a decedent's pre-death pain and suffering, petitioners seek to recover such damages through a general maritime survival action. Petitioners argue that general maritime law recognizes a survival action, which permits a decedent's estate to recover damages that the decedent would have been able to recover but for his death, including pre-death pain and suffering. And, they contend, because DOHSA is a wrongful-death statute——giving surviving relatives a cause of action for losses they suffered as a result of the decedent's death——it has no bearing on the availability of a survival action. We disagree. DOHSA expresses Congress' judgment that there should be no such cause of action in cases of death on the high seas. By authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. Petitioners concede that their proposed survival action would necessarily expand the class of beneficiaries in cases of death on the high seas by permitting decedents' estates (and their various beneficiaries) to recover compensation. They further concede that their cause of action would expand the recoverable damages for deaths on the high seas by permitting the recovery of nonpecuniary losses, such as pre-death pain and suffering. Because Congress has already decided these issues, it has precluded the judiciary from enlarging either the class of beneficiaries or the recoverable damages. As we noted in "Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements." *24 The comprehensive scope of DOHSA is confirmed by its survival provision, see at 22, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress' "considered judgment," Mobil Oil on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Act, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. See Act of June 5, 920, 33, 4 Stat. 007 (incorporating survival action of the Federal Employers' Liability Act, 45 U.S. C. 59). Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. In sum, Congress has spoken on the availability of a survival action, the losses to be recovered, and the beneficiaries, in cases of death on the high seas. Because Congress has chosen not to authorize a survival action for a decedent's pre-death pain and suffering, there can be no general maritime survival action for such damages.[2] The judgment of the Court of Appeals is Affirmed.

Justice Powell

dissenting

Reeves, Inc. v. Stake

https://www.courtlistener.com/opinion/110308/reeves-inc-v-stake/

https://www.courtlistener.com/api/rest/v3/clusters/110308/

1979-123

The South Dakota Cement Commission has ordered that in times of shortage the state cement plant must turn away out-of-state customers until all orders from South Dakotans are filled. This policy represents precisely the kind of economic protectionism that the Commerce Clause was intended to prevent.[1] The Court, however, finds no violation of the Commerce Clause, solely because the State produces the cement. I agree with the Court that the State of South Dakota may provide cement for its public needs without violating the Commerce Clause. But I cannot agree that South Dakota may withhold its cement from interstate commerce in order to benefit private citizens and business within the State. I The need to ensure unrestricted trade among the States created a major impetus for the drafting of the Constitution. "The power over commerce . . . was one of the primary objects for which the people of America adopted their government. . . ." Gibbons v. Ogden, 9 Wheat. 1, 190 (1824). Indeed, the Constitutional Convention was called after an earlier convention on trade and commercial problems proved inconclusive. C. Beard, An Economic Interpretation of the *448 Constitution 61-63 (1935); S. Bloom, History of the Formation of the Union Under the Constitution 14-15 (1940). In the subsequent debate over ratification, Alexander Hamilton emphasized the importance of unrestricted interstate commerce: "An unrestrained intercourse between the States themselves will advance the trade of each, by an interchange of their respective productions. . . . Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails . . . it can call to its aid the staple of another." The Federalist, No. 11, p. 71 (J. Cooke ed., 1961) (A. Hamilton); see id., No. 42, p. 283 (J. Madison). The Commerce Clause has proved an effective weapon against protectionism. The Court has used it to strike down limitations on access to local goods, be they animal, Hughes v. Oklahoma, 441 U.S. 322 (1979) (minnows); vegetable, Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (cantaloupes); or mineral, Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (natural gas). Only this Term, the Court held unconstitutional a Florida statute designed to exclude out-of-state investment advisers. Lewis v. BT Investment Managers, Inc., ante, p. 27. As we observed in Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803 (1976), "this Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods in response to the economic laws of supply and demand." This case presents a novel constitutional question. The Commerce Clause would bar legislation imposing on private parties the type of restraint on commerce adopted by South Dakota. See Pennsylvania v. West Virginia, supra; cf. Great A&P Tea Co. v. Cottrell, 424 U.S. 366 (1976); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).[2] Conversely, *449 a private business constitutionally could adopt a marketing policy that excluded customers who come from another State. This case falls between those polar situations. The State, through its Commission, engages in a commercial enterprise and restricts its own interstate distribution. The question is whether the Commission's policy should be treated like state regulation of private parties or like the marketing policy of a private business. The application of the Commerce Clause to this case should turn on the nature of the governmental activity involved. If a public enterprise undertakes an "integral operatio[n] in areas of traditional governmental functions," National League of Cities v. Usery, 426 U.S. 833, 852 (1976), the Commerce Clause is not directly relevant. If, however, the State enters *450 the private market and operates a commercial enterprise for the advantage of its private citizens, it may not evade the constitutional policy against economic Balkanization. This distinction derives from the power of governments to supply their own needs, see Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940); Atkin v. Kansas, 191 U.S. 207 (1903), and from the purpose of the Commerce Clause itself, which is designed to protect "the natural functioning of the interstate market," Hughes v. Alexandria Scrap Corp., supra, at 806. In procuring goods and services for the operation of government, a State may act without regard to the private marketplace and remove itself from the reach of the Commerce Clause. See American Yearbook Co. v. Askew, 339 F. Supp. 719 (MD Fla.), summarily aff'd, 409 U.S. 904 (1972). But when a State itself becomes a participant in the private market for other purposes, the Constitution forbids actions that would impede the flow of interstate commerce. These categories recognize no more than the "constitutional line between the State as government and the State as trader." New York v. United States, 326 U.S. 572, 579 (1946); see United States v. California, 297 U.S. 175 (1936); Ohio v. Helvering, 292 U.S. 360 (1934); South Carolina v. United States, 199 U.S. 437 (1905). The Court holds that South Dakota, like a private business, should not be governed by the Commerce Clause when it enters the private market. But precisely because South Dakota is a State, it cannot be presumed to behave like an enterprise " `engaged in an entirely private business.'" See ante, at 439, quoting United States v. Colgate & Co., 250 U.S. 300, 307 (1919). A State frequently will respond to market conditions on the basis of political rather than economic concerns. To use the Court's terms, a State may attempt to act as a "market regulator" rather than a "market participant." See ante, at 436. In that situation, it is a pretense to equate the State with a private economic actor. State action burdening interstate trade is no less state action because it is *451 accomplished by a public agency authorized to participate in the private market. II The threshold issue is whether South Dakota has undertaken integral government operations in an area of traditional governmental functions, or whether it has participated in the marketplace as a private firm. If the latter characterization applies, we also must determine whether the State Commission's marketing policy burdens the flow of interstate trade. This analysis highlights the differences between the state action here and that before the Court in Hughes v. Alexandria Scrap Corp. A In Alexandria Scrap, a Virginia scrap processor challenged a Maryland program to pay bounties for every junk car registered in Maryland that was converted into scrap. The program imposed more onerous documentation standards on non-Maryland processors, thereby diverting Maryland "hulks" to in-state processors. The Virginia plaintiff argued that this diversion burdened interstate commerce. As the Court today notes, Alexandria Scrap determined that Maryland's bounty program constituted direct state participation in the market for automobile hulks. Ante, at 435. But the critical question—the second step in the opinion's analysis—was whether the bounty program constituted an impermissible burden on interstate commerce. Recognizing that the case did not fit neatly into conventional Commerce Clause theory, 426 U.S., at 807, we found no burden on commerce. The Court first observed: "Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price. There has been an impact upon the interstate flow of hulks only because . . . Maryland effectively *452 has made it more lucrative for unlicensed suppliers to dispose of their hulks in Maryland . . . ." Id., at 806. We further stated "that the novelty of this case is not its presentation of a new form of 'burden' upon commerce, but that appellee should characterize Maryland's action as a burden which the Commerce Clause was intended to make suspect." Id., at 807. The opinion then emphasized that "no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes th[e] movement [of hulks] out of State." Id., at 809-810. Rather, the hulks "remain within Maryland in response to market forces, including that exerted by money from the State." Id., at 810. The Court concluded that the subsidies provided under the Maryland program erected no barriers to trade. Consequently, the Commerce Clause did not forbid the Maryland program. B Unlike the market subsidies at issue in Alexandria Scrap, the marketing policy of the South Dakota Cement Commission has cut off interstate trade.[3] The State can raise such a bar when it enters the market to supply its own needs. In order to ensure an adequate supply of cement for public uses, the State can withhold from interstate commerce the cement needed for public projects. Cf. National League of Cities v. Usery, supra. The State, however, has no parallel justification for favoring private, in-state customers over out-of-state customers.[4]*453 In response to political concerns that likely would be inconsequential to a private cement producer, South Dakota has shut off its cement sales to customers beyond its borders. That discrimination constitutes a direct barrier to trade "of the type forbidden by the Commerce Clause, and involved in previous cases. . . ." Alexandria Scrap, 426 U. S., at 810. The effect on interstate trade is the same as if the state legislature had imposed the policy on private cement producers. The Commerce Clause prohibits this severe restraint on commerce. III I share the Court's desire to preserve state sovereignty. But the Commerce Clause long has been recognized as a limitation on that sovereignty, consciously designed to maintain a national market and defeat economic provincialism. The Court today approves protectionist state policies. In the absence of contrary congressional action,[5] those policies now can be implemented as long as the State itself directly participates in the market.[6] By enforcing the Commerce Clause in this case, the Court would work no unfairness on the people of South Dakota. They still could reserve cement for public projects and share in whatever return the plant generated. They could not, however, *454 use the power of the State to furnish themselves with cement forbidden to the people of neighboring States. The creation of a free national economy was a major goal of the States when they resolved to unite under the Federal Constitution. The decision today cannot be reconciled with that purpose.

The South Dakota Cement Commission has ordered that in times of shortage the state cement plant must turn away out-of-state customers until all orders from South Dakotans are filled. This policy represents precisely the kind of economic protectionism that the Commerce Clause was intended to prevent.[1] The Court, however, finds no violation of the Commerce Clause, solely because the State produces the cement. I agree with the Court that the State of South Dakota may provide cement for its public needs without violating the Commerce Clause. But I cannot agree that South Dakota may withhold its cement from interstate commerce in order to benefit private citizens and business within the State. I The need to ensure unrestricted trade among the States created a major impetus for the drafting of the Constitution. "The power over commerce was one of the primary objects for which the people of America adopted their government." Indeed, the Constitutional Convention was called after an earlier convention on trade and commercial problems proved inconclusive. C. Beard, An Economic Interpretation of the *448 Constitution 61-63 (1935); S. Bloom, History of the Formation of the Union Under the Constitution 14-15 In the subsequent debate over ratification, Alexander Hamilton emphasized the importance of unrestricted interstate commerce: "An unrestrained intercourse between the States themselves will advance the trade of each, by an interchange of their respective productions. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails it can call to its aid the staple of another." The Federalist, No. 11, p. 71 (J. Cooke ed., 1961) (A. Hamilton); see No. 42, p. 283 (J. Madison). The Commerce Clause has proved an effective weapon against protectionism. The Court has used it to strike down limitations on access to local goods, be they animal, ; vegetable, ; or mineral, Only this Term, the Court held unconstitutional a Florida statute designed to exclude out-of-state investment advisers. Lewis v. BT Investment Managers, Inc., ante, p. 27. As we observed in "this Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods in response to the economic laws of supply and demand." This case presents a novel constitutional question. The Commerce Clause would bar legislation imposing on private parties the type of restraint on commerce adopted by South Dakota. See cf. Great A&P Tea ; Foster-Fountain Packing[2] Conversely, *449 a private business constitutionally could adopt a marketing policy that excluded customers who come from another State. This case falls between those polar situations. The State, through its Commission, engages in a commercial enterprise and restricts its own interstate distribution. The question is whether the Commission's policy should be treated like state regulation of private parties or like the marketing policy of a private business. The application of the Commerce Clause to this case should turn on the nature of the governmental activity involved. If a public enterprise undertakes an "integral operatio[n] in areas of traditional governmental functions," National League of the Commerce Clause is not directly relevant. If, however, the State enters *450 the private market and operates a commercial enterprise for the advantage of its private citizens, it may not evade the constitutional policy against economic Balkanization. This distinction derives from the power of governments to supply their own needs, see ; (3), and from the purpose of the Commerce Clause itself, which is designed to protect "the natural functioning of the interstate market," In procuring goods and services for the operation of government, a State may act without regard to the private marketplace and remove itself from the reach of the Commerce Clause. See American Yearbook (MD Fla.), summarily aff'd, But when a State itself becomes a participant in the private market for other purposes, the Constitution forbids actions that would impede the flow of interstate commerce. These categories recognize no more than the "constitutional line between the State as government and the State as trader." New ; see United ; ; South (5). The Court holds that South Dakota, like a private business, should not be governed by the Commerce Clause when it enters the private market. But precisely because South Dakota is a State, it cannot be presumed to behave like an enterprise " `engaged in an entirely private business.'" See ante, at 439, quoting United A State frequently will respond to market conditions on the basis of political rather than economic concerns. To use the Court's terms, a State may attempt to act as a "market regulator" rather than a "market participant." See ante, at 436. In that situation, it is a pretense to equate the State with a private economic actor. State action burdening interstate trade is no less state action because it is *451 accomplished by a public agency authorized to participate in the private market. II The threshold issue is whether South Dakota has undertaken integral government operations in an area of traditional governmental functions, or whether it has participated in the marketplace as a private firm. If the latter characterization applies, we also must determine whether the State Commission's marketing policy burdens the flow of interstate trade. This analysis highlights the differences between the state action here and that before the Court in A In Alexandria a scrap processor challenged a Maryland program to pay bounties for every junk car registered in Maryland that was converted into scrap. The program imposed more onerous documentation standards on non-Maryland processors, thereby diverting Maryland "hulks" to in-state processors. The plaintiff argued that this diversion burdened interstate commerce. As the Court today notes, Alexandria determined that Maryland's bounty program constituted direct state participation in the market for automobile hulks. Ante, at 435. But the critical question—the second step in the opinion's analysis—was whether the bounty program constituted an impermissible burden on interstate commerce. Recognizing that the case did not fit neatly into conventional Commerce Clause theory, we found no burden on commerce. The Court first observed: "Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price. There has been an impact upon the interstate flow of hulks only because Maryland effectively *452 has made it more lucrative for unlicensed suppliers to dispose of their hulks in Maryland" We further stated "that the novelty of this case is not its presentation of a new form of 'burden' upon commerce, but that appellee should characterize Maryland's action as a burden which the Commerce Clause was intended to make suspect." The opinion then emphasized that "no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes th[e] movement [of hulks] out of State." Rather, the hulks "remain within Maryland in response to market forces, including that exerted by money from the State." The Court concluded that the subsidies provided under the Maryland program erected no barriers to trade. Consequently, the Commerce Clause did not forbid the Maryland program. B Unlike the market subsidies at issue in Alexandria the marketing policy of the South Dakota Cement Commission has cut off interstate trade.[3] The State can raise such a bar when it enters the market to supply its own needs. In order to ensure an adequate supply of cement for public uses, the State can withhold from interstate commerce the cement needed for public projects. Cf. National League of The State, however, has no parallel justification for favoring private, in-state customers over out-of-state customers.[4]*453 In response to political concerns that likely would be inconsequential to a private cement producer, South Dakota has shut off its cement sales to customers beyond its borders. That discrimination constitutes a direct barrier to trade "of the type forbidden by the Commerce Clause, and involved in previous cases." Alexandria 426 U. S., The effect on interstate trade is the same as if the state legislature had imposed the policy on private cement producers. The Commerce Clause prohibits this severe restraint on commerce. III I share the Court's desire to preserve state sovereignty. But the Commerce Clause long has been recognized as a limitation on that sovereignty, consciously designed to maintain a national market and defeat economic provincialism. The Court today approves protectionist state policies. In the absence of contrary congressional action,[5] those policies now can be implemented as long as the State itself directly participates in the market.[6] By enforcing the Commerce Clause in this case, the Court would work no unfairness on the people of South Dakota. They still could reserve cement for public projects and share in whatever return the plant generated. They could not, however, *454 use the power of the State to furnish themselves with cement forbidden to the people of neighboring States. The creation of a free national economy was a major goal of the States when they resolved to unite under the Federal Constitution. The decision today cannot be reconciled with that purpose.

Justice Scalia

majority

Comcast Corp. v. Behrend

https://www.courtlistener.com/opinion/856346/comcast-corp-v-behrend/

https://www.courtlistener.com/api/rest/v3/clusters/856346/

2012-031

The District Court and the Court of Appeals approved certification of a class of more than 2 million current and former Comcast subscribers who seek damages for al- leged violations of the federal antitrust laws. We consider whether certification was appropriate under Federal Rule of Civil Procedure 23(b)(3). I Comcast Corporation and its subsidiaries, petitioners here, provide cable-television services to residential and commercial customers. From 1998 to 2007, petitioners engaged in a series of transactions that the parties have described as “clustering,” a strategy of concentrating op- erations within a particular region. The region at issue here, which the parties have referred to as the Philadel- phia “cluster” or the Philadelphia “Designated Market Area” (DMA), includes 16 counties located in Pennsylvania, Delaware, and New Jersey.1 Petitioners pursued their —————— 1 A “Designated Market Area” is a term used by Nielsen Media Re­ search to define a broadcast-television market. Strictly speaking, the 2 COMCAST CORP. v. BEHREND Opinion of the Court clustering strategy by acquiring competitor cable provid­ ers in the region and swapping their own systems outside the region for competitor systems located in the region. For instance, in 2001, petitioners obtained Adelphia Com- munications’ cable systems in the Philadelphia DMA, along with its 464,000 subscribers; in exchange, petition­ ers sold to Adelphia their systems in Palm Beach, Florida, and Los Angeles, California. As a result of nine cluster- ing transactions, petitioners’ share of subscribers in the re- gion allegedly increased from 23.9 percent in 1998 to 69.5 percent in 2007. See 264 F. R. D. 150, 156, n. 8, 160 (ED Pa. 2010). The named plaintiffs, respondents here, are subscribers to Comcast’s cable-television services. They filed a class­ action antitrust suit against petitioners, claiming that petitioners entered into unlawful swap agreements, in violation of §1 of the Sherman Act, and monopolized or at- tempted to monopolize services in the cluster, in viola­ tion of §2. Ch. 647, 26 Stat. 209, as amended, 15 U.S. C. §§1, 2. Petitioners’ clustering scheme, respondents con­ tended, harmed subscribers in the Philadelphia cluster by eliminating competition and holding prices for cable ser­ vices above competitive levels. Respondents sought to certify a class under Federal Rule of Civil Procedure 23(b)(3). That provision permits certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.” The District Court held, and it is uncontested here, that to meet the predominance requirement respondents had to show (1) that the existence of individual injury resulting from the alleged antitrust violation (referred to as “anti­ trust impact”) was “capable of proof at trial through evidence that [was] common to the class rather than indi­ —————— Philadelphia DMA comprises 18 counties, not 16. Cite as: 569 U. S. ____ (2013) 3 Opinion of the Court vidual to its members”; and (2) that the damages resulting from that injury were measurable “on a class-wide basis” through use of a “common methodology.” 264 F. R. D., at 154.2 Respondents proposed four theories of antitrust impact: First, Comcast’s clustering made it profitable for Comcast to withhold local sports programming from its competi­ tors, resulting in decreased market penetration by direct broadcast satellite providers. Second, Comcast’s activities reduced the level of competition from “overbuilders,” com­ panies that build competing cable networks in areas where an incumbent cable company already operates. Third, Comcast reduced the level of “benchmark” competi­ tion on which cable customers rely to compare prices. Fourth, clustering increased Comcast’s bargaining power relative to content providers. Each of these forms of im­ pact, respondents alleged, increased cable subscription rates throughout the Philadelphia DMA. The District Court accepted the overbuilder theory of antitrust impact as capable of classwide proof and rejected the rest. Id., at 165, 174, 178, 181. Accordingly, in its certification order, the District Court limited respondents’ “proof of antitrust impact” to “the theory that Comcast engaged in anticompetitive clustering conduct, the effect of which was to deter the entry of overbuilders in the Phila­ delphia DMA.” App. to Pet. for Cert. 192a–193a.3 —————— 2 Respondents sought certification for the following class: “All cable television customers who subscribe or subscribed at any times since December 1, 1999, to the present to video programming services (other than solely to basic cable services) from Comcast, or any of its subsidi­ aries or affiliates in Comcast’s Philadelphia cluster.” App. 35a. 3 The District Court did not hold that the three alternative theories of liability failed to establish antitrust impact, but merely that those theories could not be determined in a manner common to all the class plaintiffs. The other theories of liability may well be available for the plaintiffs to pursue as individual actions. Any contention that the plaintiffs should be allowed to recover damages attributable to all four 4 COMCAST CORP. v. BEHREND Opinion of the Court The District Court further found that the damages resulting from overbuilder-deterrence impact could be calculated on a classwide basis. To establish such dam- ages, respondents had relied solely on the testimony of Dr. James McClave. Dr. McClave designed a regression model comparing actual cable prices in the Philadelphia DMA with hypothetical prices that would have prevailed but for petitioners’ allegedly anticompetitive activities. The model calculated damages of $875,576,662 for the entire class. App. 1388a (sealed). As Dr. McClave acknowledged, however, the model did not isolate damages resulting from any one theory of antitrust impact. Id., at 189a– 190a. The District Court nevertheless certified the class. A divided panel of the Court of Appeals affirmed. On appeal, petitioners contended the class was improperly certified because the model, among other shortcomings, failed to attribute damages resulting from overbuilder deterrence, the only theory of injury remaining in the case. The court refused to consider the argument because, in its view, such an “attac[k] on the merits of the methodology [had] no place in the class certification inquiry.” 655 F.3d 182, 207 (CA3 2011). The court emphasized that, “[a]t the class certification stage,” respondents were not required to “tie each theory of antitrust impact to an exact calcula­ tion of damages.” Id., at 206. According to the court, it had “not reached the stage of determining on the merits whether the methodology is a just and reasonable infer­ ence or speculative.” Ibid. Rather, the court said, re­ spondents must “assure us that if they can prove antitrust impact, the resulting damages are capable of measure­ ment and will not require labyrinthine individual calcula­ —————— theories in this class action would erroneously suggest one of two things—either that the plaintiffs may also recover such damages in individual actions or that they are precluded from asserting those theories in individual actions. Cite as: 569 U. S. ____ (2013) 5 Opinion of the Court tions.” Ibid. In the court’s view, that burden was met because respondents’ model calculated “supra-competitive prices regardless of the type of anticompetitive conduct.” Id., at 205. We granted certiorari. 567 U. S. ___ (2012).4 II The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979). To come within the exception, a party seeking to maintain a class action “must affirmatively demonstrate his compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, ___ (2011) (slip op., at 10). The Rule “does not set forth a mere pleading stand­ ard.” Ibid. Rather, a party must not only “be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact,” typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a). Ibid. The party must also satisfy through evidentiary proof at least one of the provisions of Rule —————— 4 The question presented reads: “Whether a district court may certify a class action without resolving whether the plaintiff class had intro­ duced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 567 U. S., at ___. Respondents contend that petitioners forfeited their ability to answer this question in the negative because they did not make an objection to the admission of Dr. McClave’s testimony under the Federal Rules of Evidence. See Daubert v. Merrell Dow Pharma- ceuticals, Inc., 509 U.S. 579 (1993). Such a forfeit would make it impossible for petitioners to argue that Dr. McClave’s testimony was not “admissible evidence” under the Rules; but it does not make it impossible for them to argue that the evidence failed “to show that the case is susceptible to awarding damages on a class-wide basis.” Peti­ tioners argued below, and continue to argue here, that certification was improper because respondents had failed to establish that damages could be measured on a classwide basis. That is the question we address here. 6 COMCAST CORP. v. BEHREND Opinion of the Court 23(b). The provision at issue here is Rule 23(b)(3), which requires a court to find that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Repeatedly, we have emphasized that it “ ‘may be neces­ sary for the court to probe behind the pleadings before coming to rest on the certification question,’ and that certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ ” Ibid. (quoting General Tele- phone Co. of Southwest v. Falcon, 457 U.S. 147, 160–161 (1982)). Such an analysis will frequently entail “overlap with the merits of the plaintiff ’s underlying claim.” 564 U. S., at ___ (slip op., at 10). That is so because the “ ‘class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Ibid. (quoting Falcon, supra, at 160). The same analytical principles govern Rule 23(b). If anything, Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623–624 (1997). Rule 23(b)(3), as an “ ‘adventuresome innovation,’ ” is designed for situa­ tions “ ‘in which “class-action treatment is not as clearly called for.” ’ ” Wal-Mart, supra, at ___ (slip op., at 22) (quoting Amchem, 521 U. S., at 614–615). That explains Congress’s addition of procedural safeguards for (b)(3) class members beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to opt out), and the court’s duty to take a “ ‘close look’ ” at whether common questions predominate over individual ones. Id., at 615. III Respondents’ class action was improperly certified un­ der Rule 23(b)(3). By refusing to entertain arguments against respondents’ damages model that bore on the Cite as: 569 U. S. ____ (2013) 7 Opinion of the Court propriety of class certification, simply because those ar­ guments would also be pertinent to the merits determina­ tion, the Court of Appeals ran afoul of our precedents requiring precisely that inquiry. And it is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class. This case thus turns on the straightforward application of class-certification prin­ ciples; it provides no occasion for the dissent’s extended discussion, post, at 5–11 (GINSBURG and BREYER, JJ., dissenting), of substantive antitrust law. A We start with an unremarkable premise. If respondents prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the District Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages at­ tributable to that theory. If the model does not even at­ tempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3). Calculations need not be exact, see Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931), but at the class-certification stage (as at trial), any model supporting a “plaintiff ’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation.” ABA Section of Antitrust Law, Proving Antitrust Damages: Legal and Economic Issues 57, 62 (2d ed. 2010); see, e.g., Image Tech. Servs. v. East- 8 COMCAST CORP. v. BEHREND Opinion of the Court man Kodak Co., 125 F.3d 1195, 1224 (CA9 1997). And for purposes of Rule 23, courts must conduct a “ ‘rigorous analysis’ ” to determine whether that is so. Wal-Mart, supra, at ___ (slip op., at 10). The District Court and the Court of Appeals saw no need for respondents to “tie each theory of antitrust im­ pact” to a calculation of damages. 655 F. 3d, at 206. That, they said, would involve consideration of the “merits” having “no place in the class certification inquiry.” Id., at 206–207. That reasoning flatly contradicts our cases requiring a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim. Wal-Mart, supra, at ___, and n. 6 (slip op., at 10–11, and n. 6). The Court of Appeals simply concluded that re­ spondents “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology [was] a just and reason­ able inference or speculative.” 655 F. 3d, at 206. Under that logic, at the class-certification stage any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be. Such a proposition would reduce Rule 23(b)(3)’s predominance requirement to a nullity. B There is no question that the model failed to measure damages resulting from the particular antitrust injury on which petitioners’ liability in this action is premised.5 —————— 5 The dissent is of the view that what an econometric model proves is a “question of fact” on which we will not “undertake to review concur­ rent findings . . . by two courts below in the absence of a very obvious and exceptional showing of error.” Post, at 9 (quoting United States v. Virginia, 518 U.S. 515, 589, n. 5 (1996) (SCALIA, J., dissenting) (inter­ nal quotation marks omitted)). To begin with, neither of the courts below found that the model established damages attributable to over­ building alone. Second, while the data contained within an econometric model may well be “questions of fact” in the relevant sense, what those Cite as: 569 U. S. ____ (2013) 9 Opinion of the Court The scheme devised by respondents’ expert, Dr. McClave, sought to establish a “but for” baseline—a figure that would show what the competitive prices would have been if there had been no antitrust violations. Damages would then be determined by comparing to that baseline what the actual prices were during the charged period. The “but for” figure was calculated, however, by assuming a market that contained none of the four distortions that respondents attributed to petitioners’ actions. In other words, the model assumed the validity of all four theories of antitrust impact initially advanced by respondents: decreased penetration by satellite providers, overbuilder deterrence, lack of benchmark competition, and increased bargaining power. At the evidentiary hearing, Dr. McClave expressly admitted that the model calculated damages resulting from “the alleged anticompetitive conduct as a whole” and did not attribute damages to any one particular theory of anticompetitive impact. App. 189a–190a, 208a. This methodology might have been sound, and might have produced commonality of damages, if all four of those alleged distortions remained in the case. But as Judge Jordan’s partial dissent pointed out: “[B]ecause the only surviving theory of antitrust im­ pact is that clustering reduced overbuilding, for Dr. McClave’s comparison to be relevant, his benchmark counties must reflect the conditions that would have prevailed in the Philadelphia DMA but for the alleged reduction in overbuilding. In all respects unrelated to reduced overbuilding, the benchmark counties should —————— data prove is no more a question of fact than what our opinions hold. And finally, even if it were a question of fact, concluding that the model here established damages attributable to overbuilding alone would be “obvious[ly] and exceptional[ly]” erroneous. 10 COMCAST CORP. v. BEHREND Opinion of the Court reflect the actual conditions in the Philadelphia DMA, or else the model will identify ‘damages’ that are not the result of reduced overbuilding, or, in other words, that are not the certain result of the wrong.” 655 F. 3d, at 216 (internal quotation marks omitted). The majority’s only response to this was that “[a]t the class certification stage we do not require that Plaintiffs tie each theory of antitrust impact to an exact calculation of damages, but instead that they assure us that if they can prove antitrust impact, the resulting damages are capable of measurement and will not require labyrinthine individual calculations.” Id., at 206. But such assurance is not provided by a methodology that identifies damages that are not the result of the wrong. For all we know, cable subscribers in Gloucester County may have been overcharged because of petitioners’ alleged elimination of satellite competition (a theory of liability that is not ca- pable of classwide proof ); while subscribers in Camden County may have paid elevated prices because of petitioners’ increased bargaining power vis-à-vis content providers (another theory that is not capable of classwide proof ); while yet other subscribers in Montgomery County may have paid rates produced by the combined effects of multi­ ple forms of alleged antitrust harm; and so on. The per­ mutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless. In light of the model’s inability to bridge the differences between supra-competitive prices in general and supra­ competitive prices attributable to the deterrence of over­ building, Rule 23(b)(3) cannot authorize treating subscrib­ ers within the Philadelphia cluster as members of a single class.6 Prices whose level above what an expert deems —————— 6 We might add that even if the model had identified subscribers who paid more solely because of the deterrence of overbuilding, it still would not have established the requisite commonality of damages unless it Cite as: 569 U. S. ____ (2013) 11 Opinion of the Court “competitive” has been caused by factors unrelated to an accepted theory of antitrust harm are not “anticompeti­ tive” in any sense relevant here. “The first step in a dam­ ages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.” Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed. 2011) (emphasis added). The District Court and the Court of Appeals ignored that first step entirely. The judgment of the Court of Appeals for the Third Cir­ cuit is reversed. It is so ordered. —————— plausibly showed that the extent of overbuilding (absent deterrence) would have been the same in all counties, or that the extent is irrele­ vant to effect upon ability to charge supra-competitive prices. Cite as: 569 U. S. ____ (2013) 1 GINSBURG and BREYER, JJ., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–864 _________________ COMCAST CORPORATION, ET AL., PETITIONERS v. CAROLINE BEHREND ET AL.

The District Court the Court of Appeals approved certification of a class of more than 2 million current former Comcast subscribers who seek damages for al- leged violations of the federal antitrust laws. We consider whether certification was appropriate under Federal Rule of Civil Procedure 23(b)(3). I Comcast Corporation its subsidiaries, petitioners here, provide cable-television services to residential commercial customers. From 1998 to 2007, petitioners engaged in a series of transactions that the parties have described as “clustering,” a strategy of concentrating op- erations within a particular region. The region at issue here, which the parties have referred to as the Philadel- phia “cluster” or the Philadelphia “Designated Market Area” (DMA), includes 16 counties located in Pennsylvania, Delaware, New Jersey.1 Petitioners pursued their —————— 1 A “Designated Market Area” is a term used by Nielsen Media Re­ search to define a broadcast-television market. Strictly speaking, the 2 COMCAST CORP. v. BEHREND Opinion of the Court clustering strategy by acquiring competitor cable provid­ ers in the region swapping their own systems outside the region for competitor systems located in the region. For instance, in 2001, petitioners obtained Adelphia Com- munications’ cable systems in the Philadelphia DMA, along with its 464,000 subscribers; in exchange, petition­ ers sold to Adelphia their systems in Palm Beach, Florida, Los Angeles, California. As a result of nine cluster- ing transactions, petitioners’ share of subscribers in the re- gion allegedly increased from 23.9 percent in 1998 to 69.5 percent in 2007. See 264 F. R. D. 150, 156, n. 8, 160 (ED Pa. 2010). The named plaintiffs, respondents here, are subscribers to Comcast’s cable-television services. They filed a class­ action antitrust suit against petitioners, claiming that petitioners entered into unlawful swap agreements, in violation of of the Sherman Act, monopolized or at- tempted to monopolize services in the cluster, in viola­ tion of Ch. 647, as amended, 15 U.S. C. §, 2. Petitioners’ clustering scheme, respondents con­ tended, harmed subscribers in the Philadelphia cluster by eliminating competition holding prices for cable ser­ vices above competitive levels. Respondents sought to certify a class under Federal Rule of Civil Procedure 23(b)(3). That provision permits certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.” The District Court held, it is uncontested here, that to meet the predominance requirement respondents had to show (1) that the existence of individual injury resulting from the alleged antitrust violation (referred to as “anti­ trust impact”) was “capable of proof at trial through evidence that [was] common to the class rather than indi­ —————— Philadelphia DMA comprises 18 counties, not 16. Cite as: 569 U. S. (2013) 3 Opinion of the Court vidual to its members”; (2) that the damages resulting from that injury were measurable “on a class-wide basis” through use of a “common methodology.” 264 F. R. D., at 154.2 Respondents proposed four theories of antitrust impact: First, Comcast’s clustering made it profitable for Comcast to withhold local sports programming from its competi­ tors, resulting in decreased market penetration by direct broadcast satellite providers. Second, Comcast’s activities reduced the level of competition from “overbuilders,” com­ panies that build competing cable networks in areas where an incumbent cable company already operates. Third, Comcast reduced the level of “benchmark” competi­ tion on which cable customers rely to compare prices. Fourth, clustering increased Comcast’s bargaining power relative to content providers. Each of these forms of im­ pact, respondents alleged, increased cable subscription rates throughout the Philadelphia DMA. The District Court accepted the overbuilder theory of antitrust impact as capable of classwide proof rejected the rest. Accordingly, in its certification order, the District Court limited respondents’ “proof of antitrust impact” to “the theory that Comcast engaged in anticompetitive clustering conduct, the effect of which was to deter the entry of overbuilders in the Phila­ delphia DMA.” App. to Pet. for Cert. 192a–193a.3 —————— 2 Respondents sought certification for the following class: “All cable television customers who subscribe or subscribed at any times since December 1, 1999, to the present to video programming services (other than solely to basic cable services) from Comcast, or any of its subsidi­ aries or affiliates in Comcast’s Philadelphia cluster.” App. 35a. 3 The District Court did not hold that the three alternative theories of liability failed to establish antitrust impact, but merely that those theories could not be determined in a manner common to all the class plaintiffs. The other theories of liability may well be available for the plaintiffs to pursue as individual actions. Any contention that the plaintiffs should be allowed to recover damages attributable to all four 4 COMCAST CORP. v. BEHREND Opinion of the Court The District Court further found that the damages resulting from overbuilder-deterrence impact could be calculated on a classwide basis. To establish such dam- ages, respondents had relied solely on the testimony of Dr. James McClave. Dr. McClave designed a regression model comparing actual cable prices in the Philadelphia DMA with hypothetical prices that would have prevailed but for petitioners’ allegedly anticompetitive activities. The model calculated damages of $875,576,662 for the entire class. App. 1388a (sealed). As Dr. McClave acknowledged, however, the model did not isolate damages resulting from any one theory of antitrust impact. at 189a– 190a. The District Court nevertheless certified the class. A divided panel of the Court of Appeals affirmed. On appeal, petitioners contended the class was improperly certified because the model, among other shortcomings, failed to attribute damages resulting from overbuilder deterrence, the only theory of injury remaining in the case. The court refused to consider the argument because, in its view, such an “attac[k] on the merits of the methodology [had] no place in the class certification inquiry.” 655 F.3d 182, 207 (CA3 2011). The court emphasized that, “[a]t the class certification stage,” respondents were not required to “tie each theory of antitrust impact to an exact calcula­ tion of ” According to the court, it had “not reached the stage of determining on the merits whether the methodology is a just reasonable infer­ ence or speculative.” Rather, the court said, re­ spondents must “assure us that if they can prove antitrust impact, the resulting damages are capable of measure­ ment will not require labyrinthine individual calcula­ —————— theories in this class action would erroneously suggest one of two things—either that the plaintiffs may also recover such damages in individual actions or that they are precluded from asserting those theories in individual actions. Cite as: 569 U. S. (2013) 5 Opinion of the Court tions.” In the court’s view, that burden was met because respondents’ model calculated “supra-competitive prices regardless of the type of anticompetitive conduct.” We granted certiorari. 567 U. S. (2012).4 II The class action is “an exception to the usual rule that litigation is conducted by on behalf of the individual named parties only.” 700–701 (1979). To come within the exception, a party seeking to maintain a class action “must affirmatively demonstrate his compliance” with Rule 23. Stores, Inc. v. Dukes, 564 U.S. (2011) (slip op., at 10). The Rule “does not set forth a mere pleading st­ ard.” Rather, a party must not only “be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact,” typicality of claims or defenses, adequacy of representation, as required by Rule 23(a). The party must also satisfy through evidentiary proof at least one of the provisions of Rule —————— 4 The question presented reads: “Whether a district court may certify a class action without resolving whether the plaintiff class had intro­ duced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 567 U. S., at Respondents contend that petitioners forfeited their ability to answer this question in the negative because they did not make an objection to the admission of Dr. McClave’s testimony under the Federal Rules of Evidence. See Such a forfeit would make it impossible for petitioners to argue that Dr. McClave’s testimony was not “admissible evidence” under the Rules; but it does not make it impossible for them to argue that the evidence failed “to show that the case is susceptible to awarding damages on a class-wide basis.” Peti­ tioners argued below, continue to argue here, that certification was improper because respondents had failed to establish that damages could be measured on a classwide basis. That is the question we address here. 6 COMCAST CORP. v. BEHREND Opinion of the Court 23(b). The provision at issue here is Rule 23(b)(3), which requires a court to find that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Repeatedly, we have emphasized that it “ ‘may be neces­ sary for the court to probe behind the pleadings before coming to rest on the certification question,’ that certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ ” (quoting General Tele- phone Co. of 160–161 (1982)). Such an analysis will frequently entail “overlap with the merits of the plaintiff ’s underlying claim.” 564 U. S., at (slip op., at 10). That is so because the “ ‘class determination generally involves considerations that are enmeshed in the factual legal issues comprising the plaintiff ’s cause of action.’ ” (quoting at 160). The same analytical principles govern Rule 23(b). If anything, Rule 23(b)(3)’s predominance criterion is even more deming than Rule 23(a). Products, Inc. v. Windsor, Rule 23(b)(3), as an “ ‘adventuresome innovation,’ ” is designed for situa­ tions “ ‘in which “class-action treatment is not as clearly called for.” ’ ” at (slip op., at 22) (quoting –615). That explains Congress’s addition of procedural safeguards for (b)(3) class members beyond those provided for (b)(1) or (b)(2) class members (e.g., an opportunity to opt out), the court’s duty to take a “ ‘close look’ ” at whether common questions predominate over individual ones. III Respondents’ class action was improperly certified un­ der Rule 23(b)(3). By refusing to entertain arguments against respondents’ damages model that bore on the Cite as: 569 U. S. (2013) 7 Opinion of the Court propriety of class certification, simply because those ar­ guments would also be pertinent to the merits determina­ tion, the Court of Appeals ran afoul of our precedents requiring precisely that inquiry. And it is clear that, under the proper stard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class. This case thus turns on the straightforward application of class-certification prin­ ciples; it provides no occasion for the dissent’s extended discussion, post, at 5–11 (GINSBURG BREYER, JJ., dissenting), of substantive antitrust law. A We start with an unremarkable premise. If respondents prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class-action treatment by the District Court. It follows that a model purporting to serve as evidence of damages in this class action must measure only those damages at­ tributable to that theory. If the model does not even at­ tempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3). Calculations need not be exact, see Story Parchment but at the class-certification stage (as at trial), any model supporting a “plaintiff ’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation.” ABA Section of Antitrust Law, Proving Antitrust Damages: Legal Economic Issues 57, 62 (2d ed. 2010); see, e.g., Image Tech. Servs. v. East- 8 COMCAST And for purposes of Rule 23, courts must conduct a “ ‘rigorous analysis’ ” to determine whether that is so. at (slip op., at 10). The District Court the Court of Appeals saw no need for respondents to “tie each theory of antitrust im­ pact” to a calculation of 655 F. 3d, That, they said, would involve consideration of the “merits” having “no place in the class certification inquiry.” –207. That reasoning flatly contradicts our cases requiring a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim. at n. 6 (slip op., at 10–11, n. 6). The Court of Appeals simply concluded that re­ spondents “provided a method to measure quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology [was] a just reason­ able inference or speculative.” 655 F. 3d, Under that logic, at the class-certification stage any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be. Such a proposition would reduce Rule 23(b)(3)’s predominance requirement to a nullity. B There is no question that the model failed to measure damages resulting from the particular antitrust injury on which petitioners’ liability in this action is premised.5 —————— 5 The dissent is of the view that what an econometric model proves is a “question of fact” on which we will not “undertake to review concur­ rent findings by two courts below in the absence of a very obvious exceptional showing of error.” Post, at 9 (inter­ nal quotation marks omitted)). To begin with, neither of the courts below found that the model established damages attributable to over­ building alone. Second, while the data contained within an econometric model may well be “questions of fact” in the relevant sense, what those Cite as: 569 U. S. (2013) 9 Opinion of the Court The scheme devised by respondents’ expert, Dr. McClave, sought to establish a “but for” baseline—a figure that would show what the competitive prices would have been if there had been no antitrust violations. Damages would then be determined by comparing to that baseline what the actual prices were during the charged period. The “but for” figure was calculated, however, by assuming a market that contained none of the four distortions that respondents attributed to petitioners’ actions. In other words, the model assumed the validity of all four theories of antitrust impact initially advanced by respondents: decreased penetration by satellite providers, overbuilder deterrence, lack of benchmark competition, increased bargaining power. At the evidentiary hearing, Dr. McClave expressly admitted that the model calculated damages resulting from “the alleged anticompetitive conduct as a whole” did not attribute damages to any one particular theory of anticompetitive impact. App. 189a–190a, 208a. This methodology might have been sound, might have produced commonality of damages, if all four of those alleged distortions remained in the case. But as Judge Jordan’s partial dissent pointed out: “[B]ecause the only surviving theory of antitrust im­ pact is that clustering reduced overbuilding, for Dr. McClave’s comparison to be relevant, his benchmark counties must reflect the conditions that would have prevailed in the Philadelphia DMA but for the alleged reduction in overbuilding. In all respects unrelated to reduced overbuilding, the benchmark counties should —————— data prove is no more a question of fact than what our opinions hold. And finally, even if it were a question of fact, concluding that the model here established damages attributable to overbuilding alone would be “obvious[ly] exceptional[ly]” erroneous. 10 COMCAST CORP. v. BEHREND Opinion of the Court reflect the actual conditions in the Philadelphia DMA, or else the model will identify ‘damages’ that are not the result of reduced overbuilding, or, in other words, that are not the certain result of the wrong.” 655 F. 3d, at 216 (internal quotation marks omitted). The majority’s only response to this was that “[a]t the class certification stage we do not require that Plaintiffs tie each theory of antitrust impact to an exact calculation of damages, but instead that they assure us that if they can prove antitrust impact, the resulting damages are capable of measurement will not require labyrinthine individual calculations.” But such assurance is not provided by a methodology that identifies damages that are not the result of the wrong. For all we know, cable subscribers in Gloucester County may have been overcharged because of petitioners’ alleged elimination of satellite competition (a theory of liability that is not ca- pable of classwide proof ); while subscribers in Camden County may have paid elevated prices because of petitioners’ increased bargaining power vis-à-vis content providers (another theory that is not capable of classwide proof ); while yet other subscribers in Montgomery County may have paid rates produced by the combined effects of multi­ ple forms of alleged antitrust harm; so on. The per­ mutations involving four theories of liability 2 million subscribers located in 16 counties are nearly endless. In light of the model’s inability to bridge the differences between supra-competitive prices in general competitive prices attributable to the deterrence of over­ building, Rule 23(b)(3) cannot authorize treating subscrib­ ers within the Philadelphia cluster as members of a single class.6 Prices whose level above what an expert deems —————— 6 We might add that even if the model had identified subscribers who paid more solely because of the deterrence of overbuilding, it still would not have established the requisite commonality of damages unless it Cite as: 569 U. S. (2013) 11 Opinion of the Court “competitive” has been caused by factors unrelated to an accepted theory of antitrust harm are not “anticompeti­ tive” in any sense relevant here. “The first step in a dam­ ages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.” Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed. 2011) (emphasis added). The District Court the Court of Appeals ignored that first step entirely. The judgment of the Court of Appeals for the Third Cir­ cuit is reversed. It is so ordered. —————— plausibly showed that the extent of overbuilding (absent deterrence) would have been the same in all counties, or that the extent is irrele­ vant to effect upon ability to charge supra-competitive prices. Cite as: 569 U. S. (2013) 1 GINSBURG BREYER, JJ., dissenting SUPREME COURT OF THE UNITED STATES No. 11–864 COMCAST CORPORATION, ET AL., PETITIONERS v. CAROLINE BEHREND ET AL.

Justice Brennan

majority

United States v. Tax Comm'n of Miss.

https://www.courtlistener.com/opinion/109261/united-states-v-tax-commn-of-miss/

https://www.courtlistener.com/api/rest/v3/clusters/109261/

1974-108

Regulation 25 of the Mississippi State Tax Commission requires out-of-state liquor distillers and suppliers to collect from military installations within Mississippi, and remit to the Commission, a tax in the form of a wholesale markup of 17% to 20% on liquor sold to the installations.[1] The United States has four military installations *601 in the State. Exclusive federal jurisdiction is exercised over two of the installations, Keesler Air Force Base and the Naval Construction Battalion Center.[2] The United States and Mississippi exercise concurrent jurisdiction over the other two installations, Columbus Air Force Base and Meridian Naval Air Station. The issue presented on this appeal is whether Regulation 25 imposes an unconstitutional state tax upon these federal instrumentalities. I The controversy between the United States and the Tax Commission over Regulation 25 is here for the second *602 time. Shortly after adoption of the Regulation, the United States asserted before the Commission that the markup was unconstitutional as a tax upon federal instrumentalities, and proposed an escrow account for the amount of the tax pending a judicial determination of its legality. The Commission refused and advised out-of-state distillers by letter that the markup "must be invoiced to the Military and collected directly from the Military . . ." or the distillers would face criminal prosecution and delistment of their authority to sell liquor in Mississippi. The United States thereupon paid the markup under protest and brought this action in the District Court for the Southern District of Mississippi. The complaint sought a declaratory judgment that Regulation 25 imposed an unconstitutional tax on federal instrumentalities, an injunction against its enforcement, and a refund of the sums paid under protest.[3] The Tax Commission moved for summary judgment. A three-judge District Court granted the Commission's motion. 340 F. Supp. 903 (1972). The District Court concluded that despite Art. I, § 8, cl. 17, of the Constitution,[4] the Twenty-first Amendment permitted the Tax Commission to apply the markup to out-of-state purchases destined for nonappropriated fund activities on the two installations, Keesler and the Naval Construction Battalion Center, over which the United States exercises *603 exclusive jurisdiction, and that therefore, a fortiori, the liquor sales made on the two bases over which the United States and Mississippi exercise concurrent jurisdiction, Meridian and Columbus, are similarly subject to the Mississippi tax. We reversed and remanded for further proceedings. We held that the court erred in ruling that the Twenty-first Amendment empowered the Tax Commission to apply the markup to transactions between out-of-state distillers and nonappropriated fund activities on the two exclusively federal enclaves, and held that this conclusion also eliminated the essential premise of the District Court's decision concerning the two concurrent jurisdiction bases. 412 U.S. 363 (1973). There were, however, other issues addressed to Regulation 25 that had not been reached by the District Court. We therefore remanded the case for that court's initial consideration and determination of the issues. In respect to the two exclusively federal enclaves, the Tax Commission argued that the markup might properly be viewed as a sales tax, and that the United States had consented to the imposition of such a "tax" under the Buck Act of 1940, now 4 U.S. C. §§ 105-110. Section 105 (a) provides that no person may be relieved of any sales or use tax levied by a State on the ground that the sale or use occurred in whole or part within a federal area. But § 107 (a) provides that § 105 (a) "shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof . . . ." We directed that, upon remand, the District Court address and determine the questions whether the markup should be treated as a tax on sales occurring within a federal area within the meaning of § 105 (a), and, if so, whether the exception contained in § 107 (a) nevertheless preserves the federal immunity with respect to transactions with nonappropriated fund activities on the two exclusively federal enclaves. 412 U.S., at 378-379. *604 The Buck Act questions are irrelevant to the markup as applied to the two concurrent jurisdiction bases, and, therefore, the United States argued that the markup is a tax upon instrumentalities of the United States that is unconstitutional under McCulloch v. Maryland, 4 Wheat. 316 (1819). We directed that the District Court also address and decide the instrumentality argument on remand. 412 U.S., at 380-381.[5] II On the remand the District Court held, as to the exclusively federal enclaves, that the markup constituted a "sales or use tax" within the meaning of § 105 (a) of the Buck Act, and that the exception in § 107 (a) for taxes upon federal instrumentalities was inapplicable because Regulation 25 imposes the legal incidence of the tax upon the distillers, and not upon any federal instrumentality, 378 F. Supp. 558, 570-573 (1974). For the same reason, the District Court held that the tax upon the sales to the two concurrent jurisdiction bases was not an unconstitutional tax upon instrumentalities of the United States. Id., at 569. We again noted probable jurisdiction, 419 U.S. 1104 (1975). We reverse. III The exception in § 107 (a) is plainly a congressional preservation of federal immunity from any state tax that *605 would violate the principle of McCulloch v. Maryland, supra, prohibiting state taxation of instrumentalities of the United States. If Regulation 25 is invalid under that principle, it is invalid in its imposition of the markup upon all out-of-state purchases, both those destined for the nonappropriated fund activities on the exclusive jurisdiction bases, and those destined for those activities on the concurrent jurisdiction bases. We therefore turn to our reasons for concluding that Regulation 25 is an unconstitutional tax upon instrumentalities of the United States. Before 1966, Mississippi prohibited the sale or possession of alcoholic beverages within its borders. In that year, however, the state legislature enacted the "Local Option Alcoholic Beverage Control Law," Miss. Code Ann. § 67-1-1 et seq., which created the State Tax Commission as the sole importer and wholesaler of alcoholic beverages, not including malt liquor, in the State, Miss. Code Ann. § 67-1-41. The statute authorized the Tax Commission to purchase intoxicating liquors and sell them "to authorized retailers within the state including, at the discretion of the commission, any retail distributors operating within any military post . . . within the boundaries of the state, . . . exercising such control over the distribution of alcoholic beverages as seem[s] right and proper in keeping with the provisions and purposes of this chapter." Ibid. The legislature also directed the Commission to add to the cost of all alcoholic beverages a price markup designed to cover the cost of operation of the wholesale liquor business, yield a reasonable profit, and keep Mississippi's liquor prices competitive with those of neighboring States, Miss. Code Ann. § 27-71-11. Generally, the wholesale markup was 17% on distilled spirits and 20% on wine. Pursuant to its statutory authority the Commission *606 promulgated Regulation 25 which gave post exchanges, officers' clubs, ship's stores, and other nonappropriated fund activities operating on military installations within Mississippi the option of purchasing alcoholic beverages directly from out-of-state distillers or from the Commission. The Regulation requires that orders from distillers bear the usual price markup as charged by the Commission on its sales, which the distiller in turn must remit to the Commission or face a fine, imprisonment, or delisting, i. e., withdrawal of the privilege of distributing alcoholic beverages to the Commission for resale in Mississippi. See, e. g., Miss. Code Ann. § 27-71-23. The various nonappropriated fund activities at the four military installations in Mississippi all chose to purchase their alcoholic beverages directly from out-of-state distillers, and thereby continued the practice begun when Mississippi was a "dry" State. The District Court correctly determined that post exchanges and similar facilities are instrumentalities of the United States: "it is clear that the ship's stores, officers' clubs and post exchanges `as now operated are arms of the government deemed by it essential for the performance of governmental functions . . . and partake of whatever immunities it may have under the constitution and federal statutes.' " 378 F. Supp., at 562-563. See also Standard Oil Co. v. Johnson, 316 U.S. 481 (1942); cf. Paul v. United States, 371 U.S. 245, 261 (1963). The District Court also correctly held that the markup constitutes a tax on the purchases made by the nonappropriated fund activities from out-of-state suppliers. The markup can only be understood as an "enforced contribution to provide for the support of government," the standard definition of a tax. United States v. La Franca, 282 U.S. 568, 572 (1931). The District Court held, however, that federal immunity from state taxation extends only to "a *607 state tax whose legal, as opposed to purely economic, incidence falls upon the federal government, its property or its instruments . . . ." 378 F. Supp., at 566. In determining that the legal incidence of the Mississippi wholesale markup fell not upon the Federal Government but upon the out-of-state distillers, the District Court defined legal incidence as "the legally enforceable, unavoidable liability for nonpayment of the tax." Ibid. That was error. The Tax Commission, of course, has not attempted to collect the markup directly from the nonappropriated fund activities, but has instead compelled out-of-state suppliers to collect the markup for it. But that fact alone is not determinative that the markup is a tax on the suppliers rather than on the instrumentalities of the United States. In First Agricultural Nat. Bank v. Tax Comm'n, 392 U.S. 339 (1968), we squarely rejected the proposition that the legal incidence of a tax falls always upon the person legally liable for its payment. Massachusetts imposed a sales and use tax on purchases of tangible personal property, including purchases by national banks for their own use. The statute directed that " `each vendor in this commonwealth shall add to the sales price and shall collect from the purchaser the full amount of the tax imposed . . . .' " Id., at 347. Like the District Court here, the Supreme Judicial Court of Massachusetts stated: "The legal incidence of a tax [is] . . . determined by `who is responsible . . . for payment to the state of the exaction.' " 353 Mass. 172, 177, 229 N.E.2d 245, 249 (1967). Accordingly, the state court held that the legal incidence of the tax was on the vendor. We reversed, stating: "It would appear to be indisputable that a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser. . . . There can be no doubt from the clear wording of the *608 statute that the Massachusetts Legislature intended that this sales tax be passed on to the purchaser. For our purposes, at least, that intent is controlling." 392 U.S., at 347-348. See also Gurley v. Rhoden, ante, p. 200. We see no difference between this markup and a sales tax which must be collected by the seller and remitted to the State. The Tax Commission would distinguish First Agricultural Nat. Bank on the ground that because the immunity of the national bank from state taxation in all but a few closely defined areas was conferred by statute, c. 267, 42 Stat. 1499, as amended, 12 U.S. C. § 548, the Court did not decide "the constitutional question of whether today national banks should be considered nontaxable as federal instrumentalities." 392 U.S., at 341. But the controlling significance of First Agricultural Nat. Bank for our purposes is the test formulated by that decision for the determination where the legal incidence of the tax falls, namely, that where a State requires that its sales tax be passed on to the purchaser and be collected by the vendor from him, this establishes as a matter of law that the legal incidence of the tax falls upon the purchaser.[6] That is plainly the requirement of Regulation 25. Regulation 25 provides that all direct orders by military facilities of alcoholic beverages from distillers "shall bear the usual wholesale *609 markup in price," that the "price of such alcoholic beverages shall be paid by such organizations directly to the distiller," and that the distiller "shall in turn remit the wholesale markup" to the Tax Commission.[7] The Tax Commission clearly intended—indeed, the scheme unavoidably requires—that the out-of-state distillers and suppliers pass on the markup to the military purchasers. And to underscore this conclusion, the Director of the Alcoholic Beverage Control Division of the Tax Commission informed the distillers by letter that the wholesale markup "must be invoiced to the Military and collected directly from the Military (Club) or other authorized organization located on the Military base," warning that any distiller who sells alcoholic beverages to the military without "collecting said fee directly from said Military organization shall be in violation of the Alcoholic Beverage Control laws and regulations issued pursuant thereto," and subject to the penalties provided, including delisting. Plainly that ruling explicitly imposes the legal incidence of the tax upon the military.[8] *610 Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954); and Alabama v. King & Boozer, 314 U.S. 1 (1941), buttress our conclusion. Kern-Limerick held unconstitutional, as regards sales to the United States, a state sales tax statute which purported to tax the seller, but provided that the seller " `shall collect the tax levied hereby from the purchaser.' " 347 U.S., at 111. Similarly, the Alabama statute in King & Boozer required the seller to pay the sales tax, but also required him " `to add to the sales price and collect from the purchaser the amount due by the taxpayer on account of said tax.' " 314 U.S., at 7. We held that the statute, by requiring the passing on of the tax and its collection from the purchaser, placed the legal incidence of the tax on the purchaser. We hold, therefore, that viewing the markup as a sales tax, the legal incidence of that tax was intended to rest upon instrumentalities of the United States.[9] We turn therefore to consideration of the question *611 whether the Buck Act is of assistance to the Tax Commission in its attempt to enforce Regulation 25. IV The Buck Act was enacted in 1940[10] to bar the United States, among other things, from asserting immunity from state sales and use taxes on the ground that "the Federal Government has exclusive jurisdiction over the area where the transaction occurred." S. Rep. No. 1625, 76th Cong., 3d Sess., 2 (1940). Section 105 (a) of the Buck Act provides: "No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area." The District Court concluded that under this section "Congress has legislatively acceded to Mississippi's markup on . . . wholesale liquor transactions." 378 F. Supp., at 562. Section 107 (a) of the Buck Act, however, contains a limitation upon the application of § 105 (a). It provides that § 105 (a) "shall not be deemed to authorize the levy or collection of any tax on or from the United *612 States or any instrumentality thereof . . . ."[11] Although the District Court recognized that § 107 (a) "limits" § 105 (a), the court held that § 107 (a) was inapplicable in light of its holding that the legal incidence of the tax was on the distillers. Our reversal of the District Court in that respect and our holding that the legal incidence of the tax is upon the United States plainly brings § 107 (a) into play. The section can only be read as an explicit congressional preservation of federal immunity from state sales taxes unconstitutional under the immunity doctrine announced by Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). "[U]nshaken, rarely questioned, . . . is the principle that possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation." United States v. County of Allegheny, 322 U.S. 174, *613 177 (1944). See also Kern-Limerick, Inc. v. Scurlock, 347 U. S., at 117-118.[12] Regulation 25 is therefore outside the coverage of § 105 (a) and the markup is unconstitutional as a tax imposed upon the United States and its instrumentalities. Nor does the Twenty-first Amendment require a different result. When the case was last here we held that "the Twenty-first Amendment confers no power on a State to regulate—whether by licensing, taxation, or otherwise—the importation of distilled spirits into territory over which the United States exercises exclusive jurisdiction [pursuant to Art. I, § 8, cl. 17, of the Constitution]." 412 U.S., at 375; see Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 538 (1938). Cf. James v. Dravo Contracting Co., 302 U.S. 134, 140 (1937). We reach the same conclusion as to the concurrent jurisdiction bases to which Art. I, § 8, cl. 17, does not apply: "Nothing in the language of the [Twenty-first] Amendment nor in its history leads to [the] extraordinary conclusion" that the Amendment abolished federal immunity with respect to taxes on sales of liquor to the military on bases where the United States and Mississippi exercise *614 concurrent jurisdiction. Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 345-346 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964). James Beam involved a Kentucky tax upon the importation into that State of whiskey produced in Scotland and transported through the United States directly to bonded warehouses in Kentucky. The Court held that the tax was prohibited by the Export-Import Clause of the Constitution, Art. I, § 10, cl. 2, and that the Amendment had not repealed that clause: "To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned. Nothing in the language of the Amendment nor in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and now that the claim for the first time is squarely presented, we expressly reject it." 377 U.S., at 345-346. Hostetter held that the Twenty-first Amendment did not supersede the Commerce Clause, Art. I, § 8, cl. 3, so as to permit the State of New York to prohibit the sale of liquor, under the supervision of United States Customs, to departing international airline passengers. We said that "[s]uch a conclusion would be patently bizarre and is demonstrably incorrect." 377 U.S., at 332. Similarly, it is a "patently bizarre" and "extraordinary conclusion" to suggest that the Twenty-first Amendment abolished federal immunity as respects taxes on sales to the bases where the United States and Mississippi exercise concurrent jurisdiction, and "now that the claim for the first time is squarely presented, we expressly reject it." Reversed. *615 MR. JUSTICE DOUGLAS and MR. JUSTICE REHNQUIST dissent for the reasons stated in the dissenting opinion of MR. JUSTICE DOUGLAS in United States v. State Tax Comm'n of Mississippi, 412 U.S. 363, 381-390 (1973).

Regulation 25 of the Mississippi State Tax Commission requires out-of-state liquor distillers and suppliers to collect from military installations within Mississippi, and remit to the Commission, a tax in the form of a wholesale markup of 17% to 20% on liquor sold to the installations.[1] The United States has four military installations *601 in the State. Exclusive federal jurisdiction is exercised over two of the installations, Keesler Air Force Base and the Naval Construction Battalion Center.[2] The United States and Mississippi exercise concurrent jurisdiction over the other two installations, Columbus Air Force Base and Meridian Naval Air Station. The issue presented on this appeal is whether Regulation 25 imposes an unconstitutional state tax upon these federal instrumentalities. I The controversy between the United States and the Tax Commission over Regulation 25 is here for the second *602 time. Shortly after adoption of the Regulation, the United States asserted before the Commission that the markup was unconstitutional as a tax upon federal instrumentalities, and proposed an escrow account for the amount of the tax pending a judicial determination of its legality. The Commission refused and advised out-of-state distillers by letter that the markup "must be invoiced to the Military and collected directly from the Military" or the distillers would face criminal prosecution and delistment of their authority to sell liquor in Mississippi. The United States thereupon paid the markup under protest and brought this action in the District Court for the Southern District of Mississippi. The complaint sought a declaratory judgment that Regulation 25 imposed an unconstitutional tax on federal instrumentalities, an injunction against its enforcement, and a refund of the sums paid under protest.[3] The Tax Commission moved for summary judgment. A three-judge District Court granted the Commission's motion. The District Court concluded that despite Art. I, 8, cl. 17, of the Constitution,[4] the Twenty-first Amendment permitted the Tax Commission to apply the markup to out-of-state purchases destined for nonappropriated fund activities on the two installations, Keesler and the Naval Construction Battalion Center, over which the United States exercises *603 exclusive jurisdiction, and that therefore, a fortiori, the liquor sales made on the two bases over which the United States and Mississippi exercise concurrent jurisdiction, Meridian and Columbus, are similarly subject to the Mississippi tax. We reversed and remanded for further proceedings. We held that the court erred in ruling that the Twenty-first Amendment empowered the Tax Commission to apply the markup to transactions between out-of-state distillers and nonappropriated fund activities on the two exclusively federal enclaves, and held that this conclusion also eliminated the essential premise of the District Court's decision concerning the two concurrent jurisdiction bases. There were, however, other issues addressed to Regulation 25 that had not been reached by the District Court. We therefore remanded the case for that court's initial consideration and determination of the issues. In respect to the two exclusively federal enclaves, the Tax Commission argued that the markup might properly be viewed as a sales tax, and that the United States had consented to the imposition of such a "tax" under the Buck Act of 1940, now 4 U.S. C. 105-110. Section 105 (a) provides that no person may be relieved of any sales or use tax levied by a State on the ground that the sale or use occurred in whole or part within a federal area. But 107 (a) provides that 105 (a) "shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof" We directed that, upon remand, the District Court address and determine the questions whether the markup should be treated as a tax on sales occurring within a federal area within the meaning of 105 (a), and, if so, whether the exception contained in 107 (a) nevertheless preserves the federal immunity with respect to transactions with nonappropriated fund activities on the two exclusively federal -379. *604 The Buck Act questions are irrelevant to the markup as applied to the two concurrent jurisdiction bases, and, therefore, the United States argued that the markup is a tax upon instrumentalities of the United States that is unconstitutional under We directed that the District Court also address and decide the instrumentality argument on -381.[5] II On the remand the District Court held, as to the exclusively federal enclaves, that the markup constituted a "sales or use tax" within the meaning of 105 (a) of the Buck Act, and that the exception in 107 (a) for taxes upon federal instrumentalities was inapplicable because Regulation 25 imposes the legal incidence of the tax upon the distillers, and not upon any federal instrumentality, For the same reason, the District Court held that the tax upon the sales to the two concurrent jurisdiction bases was not an unconstitutional tax upon instrumentalities of the United States. We again noted probable jurisdiction, We reverse. III The exception in 107 (a) is plainly a congressional preservation of federal immunity from any state tax that *605 would violate the principle of prohibiting state taxation of instrumentalities of the United States. If Regulation 25 is invalid under that principle, it is invalid in its imposition of the markup upon all out-of-state purchases, both those destined for the nonappropriated fund activities on the exclusive jurisdiction bases, and those destined for those activities on the concurrent jurisdiction bases. We therefore turn to our reasons for concluding that Regulation 25 is an unconstitutional tax upon instrumentalities of the United States. Before 1966, Mississippi prohibited the sale or possession of alcoholic beverages within its borders. In that year, however, the state legislature enacted the "Local Option Alcoholic Beverage Control Law," Miss. Code Ann. 67-1-1 et seq., which created the State Tax Commission as the sole importer and wholesaler of alcoholic beverages, not including malt liquor, in the State, Miss. Code Ann. 67-1-41. The statute authorized the Tax Commission to purchase intoxicating liquors and sell them "to authorized retailers within the state including, at the discretion of the commission, any retail distributors operating within any military post within the boundaries of the state, exercising such control over the distribution of alcoholic beverages as seem[s] right and proper in keeping with the provisions and purposes of this chapter." The legislature also directed the Commission to add to the cost of all alcoholic beverages a price markup designed to cover the cost of operation of the wholesale liquor business, yield a reasonable profit, and keep Mississippi's liquor prices competitive with those of neighboring States, Miss. Code Ann. 27-71-11. Generally, the wholesale markup was 17% on distilled spirits and 20% on wine. Pursuant to its statutory authority the Commission *606 promulgated Regulation 25 which gave post exchanges, officers' clubs, ship's stores, and other nonappropriated fund activities operating on military installations within Mississippi the option of purchasing alcoholic beverages directly from out-of-state distillers or from the Commission. The Regulation requires that orders from distillers bear the usual price markup as charged by the Commission on its sales, which the distiller in turn must remit to the Commission or face a fine, imprisonment, or delisting, i. e., withdrawal of the privilege of distributing alcoholic beverages to the Commission for resale in Mississippi. See, e. g., Miss. Code Ann. 27-71-23. The various nonappropriated fund activities at the four military installations in Mississippi all chose to purchase their alcoholic beverages directly from out-of-state distillers, and thereby continued the practice begun when Mississippi was a "dry" State. The District Court correctly determined that post exchanges and similar facilities are instrumentalities of the United States: "it is clear that the ship's stores, officers' clubs and post exchanges `as now operated are arms of the government deemed by it essential for the performance of governmental functions and partake of whatever immunities it may have under the constitution and federal statutes.' " -563. See also Standard Oil ; cf. The District Court also correctly held that the markup constitutes a tax on the purchases made by the nonappropriated fund activities from out-of-state suppliers. The markup can only be understood as an "enforced contribution to provide for the support of government," the standard definition of a tax. United The District Court held, however, that federal immunity from state taxation extends only to "a *607 state tax whose legal, as opposed to purely economic, incidence falls upon the federal government, its property or its instruments" In determining that the legal incidence of the Mississippi wholesale markup fell not upon the Federal Government but upon the out-of-state distillers, the District Court defined legal incidence as "the legally enforceable, unavoidable liability for nonpayment of the tax." That was error. The Tax Commission, of course, has not attempted to collect the markup directly from the nonappropriated fund activities, but has instead compelled out-of-state suppliers to collect the markup for it. But that fact alone is not determinative that the markup is a tax on the suppliers rather than on the instrumentalities of the United States. In First Agricultural Nat. we squarely rejected the proposition that the legal incidence of a tax falls always upon the person legally liable for its payment. Massachusetts imposed a sales and use tax on purchases of tangible personal property, including purchases by national banks for their own use. The statute directed that " `each vendor in this commonwealth shall add to the sales price and shall collect from the purchaser the full amount of the tax imposed' " Like the District Court here, the Supreme Judicial Court of Massachusetts stated: "The legal incidence of a tax [is] determined by `who is responsible for payment to the state of the exaction.' " Accordingly, the state court held that the legal incidence of the tax was on the vendor. We reversed, stating: "It would appear to be indisputable that a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser. There can be no doubt from the clear wording of the *608 statute that the Massachusetts Legislature intended that this sales tax be passed on to the purchaser. For our purposes, at least, that intent is controlling." 392 U.S., -348. See also Gurley v. Rhoden, ante, p. 200. We see no difference between this markup and a sales tax which must be collected by the seller and remitted to the State. The Tax Commission would distinguish First Agricultural Nat. Bank on the ground that because the immunity of the national bank from state taxation in all but a few closely defined areas was conferred by statute, c. 267, as amended, 12 U.S. C. 548, the Court did not decide "the constitutional question of whether today national banks should be considered nontaxable as federal instrumentalities." But the controlling significance of First Agricultural Nat. Bank for our purposes is the test formulated by that decision for the determination where the legal incidence of the tax falls, namely, that where a State requires that its sales tax be passed on to the purchaser and be collected by the vendor from him, this establishes as a matter of law that the legal incidence of the tax falls upon the purchaser.[6] That is plainly the requirement of Regulation 25. Regulation 25 provides that all direct orders by military facilities of alcoholic beverages from distillers "shall bear the usual wholesale *609 markup in price," that the "price of such alcoholic beverages shall be paid by such organizations directly to the distiller," and that the distiller "shall in turn remit the wholesale markup" to the Tax Commission.[7] The Tax Commission clearly intended—indeed, the scheme unavoidably requires—that the out-of-state distillers and suppliers pass on the markup to the military purchasers. And to underscore this conclusion, the Director of the Alcoholic Beverage Control Division of the Tax Commission informed the distillers by letter that the wholesale markup "must be invoiced to the Military and collected directly from the Military (Club) or other authorized organization located on the Military base," warning that any distiller who sells alcoholic beverages to the military without "collecting said fee directly from said Military organization shall be in violation of the Alcoholic Beverage Control laws and regulations issued pursuant thereto," and subject to the penalties provided, including delisting. Plainly that ruling explicitly imposes the legal incidence of the tax upon the military.[8] *610 Kern-Limerick, ; and buttress our conclusion. Kern-Limerick held unconstitutional, as regards sales to the United States, a state sales tax statute which purported to tax the seller, but provided that the seller " `shall collect the tax levied hereby from the purchaser.' " Similarly, the Alabama statute in King & Boozer required the seller to pay the sales tax, but also required him " `to add to the sales price and collect from the purchaser the amount due by the taxpayer on account of said tax.' " We held that the statute, by requiring the passing on of the tax and its collection from the purchaser, placed the legal incidence of the tax on the purchaser. We hold, therefore, that viewing the markup as a sales tax, the legal incidence of that tax was intended to rest upon instrumentalities of the United States.[9] We turn therefore to consideration of the question *611 whether the Buck Act is of assistance to the Tax Commission in its attempt to enforce Regulation 25. IV The Buck Act was enacted in 1940[10] to bar the United States, among other things, from asserting immunity from state sales and use taxes on the ground that "the Federal Government has exclusive jurisdiction over the area where the transaction occurred." S. Rep. No. 1625, 76th Cong., 3d Sess., 2 (1940). Section 105 (a) of the Buck Act provides: "No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area." The District Court concluded that under this section "Congress has legislatively acceded to Mississippi's markup on wholesale liquor transactions." Section 107 (a) of the Buck Act, however, contains a limitation upon the application of 105 (a). It provides that 105 (a) "shall not be deemed to authorize the levy or collection of any tax on or from the United *612 States or any instrumentality thereof"[11] Although the District Court recognized that 107 (a) "limits" 105 (a), the court held that 107 (a) was inapplicable in light of its holding that the legal incidence of the tax was on the distillers. Our reversal of the District Court in that respect and our holding that the legal incidence of the tax is upon the United States plainly brings 107 (a) into play. The section can only be read as an explicit congressional preservation of federal immunity from state sales taxes unconstitutional under the immunity doctrine announced by Mr. Chief Justice Marshall in "[U]nshaken, rarely questioned, is the principle that possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation." United *613 See also Kern-Limerick, -118.[12] Regulation 25 is therefore outside the coverage of 105 (a) and the markup is unconstitutional as a tax imposed upon the United States and its instrumentalities. Nor does the Twenty-first Amendment require a different result. When the case was last here we held that "the Twenty-first Amendment confers no power on a State to regulate—whether by licensing, taxation, or otherwise—the importation of distilled spirits into territory over which the United States exercises exclusive jurisdiction [pursuant to Art. I, 8, cl. 17, of the Constitution]." ; see Cf. We reach the same conclusion as to the concurrent jurisdiction bases to which Art. I, 8, cl. 17, does not apply: "Nothing in the language of the [Twenty-first] Amendment nor in its history leads to [the] extraordinary conclusion" that the Amendment abolished federal immunity with respect to taxes on sales of liquor to the military on bases where the United States and Mississippi exercise *614 concurrent jurisdiction. Department of ; James Beam involved a Kentucky tax upon the importation into that State of whiskey produced in Scotland and transported through the United States directly to bonded warehouses in Kentucky. The Court held that the tax was prohibited by the Export-Import Clause of the Constitution, Art. I, 10, cl. 2, and that the Amendment had not repealed that clause: "To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned. Nothing in the language of the Amendment nor in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and now that the claim for the first time is squarely presented, we expressly reject it." 377 U.S., at Hostetter held that the Twenty-first Amendment did not supersede the Commerce Clause, Art. I, 8, cl. 3, so as to permit the State of New York to prohibit the sale of liquor, under the supervision of United States Customs, to departing international airline passengers. We said that "[s]uch a conclusion would be patently bizarre and is demonstrably incorrect." Similarly, it is a "patently bizarre" and "extraordinary conclusion" to suggest that the Twenty-first Amendment abolished federal immunity as respects taxes on sales to the bases where the United States and Mississippi exercise concurrent jurisdiction, and "now that the claim for the first time is squarely presented, we expressly reject it." Reversed. *615 MR. JUSTICE DOUGLAS and MR. JUSTICE REHNQUIST dissent for the reasons stated in the dissenting opinion of MR. JUSTICE DOUGLAS in United

Justice Brennan

dissenting

Fisher v. Berkeley

https://www.courtlistener.com/opinion/111607/fisher-v-berkeley/

https://www.courtlistener.com/api/rest/v3/clusters/111607/

1985-044

Since Parker v. Brown, 317 U.S. 341 (1943), the Court has wrestled with the question of the degree to which federal antitrust laws prohibit state and local governments from imposing anticompetitive restraints on trade. Laws which impose such restraints have been held to be exempt from antitrust scrutiny if they constitute action of the State itself in its sovereign capacity, or state-authorized municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. See Community Communications Co. v. Boulder, 455 U.S. 40, 52 (1982). Today, the Court holds that a municipality's price-fixing scheme is not pre-empted by the federal antitrust laws whether or not the scheme is state-authorized, or furthers or implements a clearly articulated and affirmatively expressed state policy. Because today's decision discards over 40 years of carefully considered precedent, I respectfully dissent. I A Berkeley's Rent Stabilization Ordinance (hereafter Ordinance) effectively fixes prices for rental units in the city of Berkeley. In Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982), we held that a state statute "may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under § 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation." *275 In this case, by declaring maximum prices landlords may charge, Berkeley's Ordinance irresistibly pressures landlords to fix prices for their rental units. Thus, the Ordinance "facially conflict[s] with the Sherman Act because it mandate[s] [price fixing], an activity that has long been regarded as a per se violation of the Sherman Act." Id., at 659-660 (emphasis in original). The Court recognizes that the Ordinance imposes anticompetitive restraints on trade, and that it has the same effect on the housing market as would a conspiracy by landlords to fix rental prices. Ante, at 266. Despite this, the Court holds that the Ordinance is not pre-empted by the Sherman Act because prices are fixed "unilaterally" by the city, rather than by "contract, combination, or conspiracy." I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of pre-emption. Certainly, nothing we said in Rice supports such a narrow view of pre-emption.[1] Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), a wine wholesaler sought to enjoin enforcement of a California statute which effectively *276 required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine-pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute challenged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkeley's Ordinance compels landlords to charge prices set by the city. The city "holds the power to prevent price competition by dictating the prices charged" by landlords. Id., at 103. "[S]uch vertical control destroys horizontal competition as effectively as if [landlords] `formed a combination and endeavored to establish the same restrictions . . . by agreement with each other.' " Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 408 (1911)). Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951), is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, "when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." Id., at 389. "[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids `horizontal' price fixing." Ibid. (emphasis in original). B Even if I accepted the Court's analysis of the antitrust pre-emption issue, I would find a functional "combination" in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other — a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion — that *277 "[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law." Ante, at 267. The Court doesn't explain why this is so — it simply baldly asserts that "[t]he ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy." Ibid. The best I can make of this is that the Court apparently would interpret the Sherman Act to forbid only privately arranged price-fixing schemes. See ante, at 267-269. That interpretation would be plainly misguided. Section 1 of the Sherman Act declares illegal restraints of trade resulting from any "contract, combination . . . , or conspiracy." 15 U.S. C. § 1. Understandably, that wording has led the Court to draw a "basic distinction" between concerted and independent action, and to hold that "[i]ndependent action is not proscribed" by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761 (1984). However, until today we have not held, or indeed even suggested, that government-imposed restraints on economic actions cannot constitute concerted action. Rather, both Schwegmann and Midcal held that state statutes which "had a coercive effect upon parties who must obey the law" violated § 1.[2] *278 If the Ordinance allowed the individual landlords ultimately to set their own rental prices, I might understand the Court's conclusion that any resulting price restraints did not necessarily result from collective action. Cf. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761. However, because the Ordinance has the force of law, the city can compel landlords to do what the Sherman Act plainly forbids — to fix prices for rental units in Berkeley. Regardless of whether the landlords "agree" to the prices charged, the circumstances here clearly "exclude the possibility that the [city and the landlords] were acting independently." 465 U.S., at 764. The Ordinance eliminates price competition more effectively than any private "agreement" ever could, and is therefore pre-empted by the Sherman Act. The Court's contrary conclusion does not further, as it argues, but rather distorts "traditional antitrust analysis." Ante, at 264. II Ultimately, the Court is holding that a municipality's authority to protect the public welfare should not be constrained by the Sherman Act. That holding excludes a broad range of local government anticompetitive activities from the reach of the antitrust laws. This flies in the face of the fact that Congress has not enacted such a broad antitrust exemption for municipalities. See Community Communications Co. v. Boulder, 455 U.S. 40 (1982); Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978); cf. 15 U.S. C. § 35(a) (1982 ed., Supp. II) (immunizing local governments *279 only from liability for damages for violations of the antitrust laws). "In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, . . . we [have been] especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach." Lafayette, supra, at 412-413 (plurality opinion). "The Parker state-action exemption reflects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours is a `dual system of government,' Parker, 317 U. S., at 351 (emphasis added), which has no place for sovereign cities." Community Communications Co. v. Boulder, supra, at 53. Of course, our decisions do not foreclose municipalities from enacting anticompetitive measures in the public interest, but only require that such actions be state-authorized and be implemented pursuant to a clearly articulated and affirmatively expressed state policy to displace competition with regulation or monopoly service. See 455 U.S., at 52. Berkeley's Ordinance plainly is not exempt from antitrust scrutiny under this standard. Appellees suggest that three considerations support their argument that the Ordinance implements a clearly articulated and affirmatively expressed state policy authorizing municipalities to enact rent control measures: (1) the state legislature's 1972 ratification of a city rent control charter amendment; (2) the California Supreme Court's decision in Birkenfeld v. City of Berkeley, 17 Cal. 3d 129, 550 P.2d 1001 (1976), which ultimately invalidated that amendment; and (3) the city's state-law obligation to provide affordable housing. None of these considerations support appellees' position. First, in 1972, Berkeley adopted a rent control charter amendment, which was approved by concurrent resolution of *280 both houses of the state legislature.[3] There are serious doubts that this purely pro forma approval would qualify the amendment for the Parker exemption. See Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). In any event, that amendment was subsequently invalidated by the California Supreme Court, and the legislature's actions respecting its passage afford no support for the claimed exemption of the current Ordinance from antitrust scrutiny. Second, the Birkenfeld decision, while invalidating Berkeley's rent control amendment, found state authority for such measures in constitutional provisions conferring upon cities the power to "make and enforce . . . all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." 17 Cal. 3d, at 140, 550 P. 2d, at 1009-1010. But we have made clear that such general grants of authority do not constitute the required mandate to engage in conduct that necessarily constitutes a violation of the antitrust laws. See Community Communications Co., 455 U. S., at 55. "Acceptance of such a proposition . . . would wholly eviscerate the concepts of `clear articulation and affirmative expression' that our precedents require." Id., at 56. Third, state law requires cities to "make adequate provision for the housing needs of all economic segments of the community." Cal. Govt. Code Ann. § 65580(d) (West 1983). But, although appellees argue that rent control measures are a "foreseeable result" of these statutory obligations, see Hallie v. Eau Claire, 471 U.S. 34 (1985), those laws are expressly neutral with respect to a city's authority to impose rent controls. California Govt. Code Ann. § 65589(b) (West 1983) expressly provides that "nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls." *281 See also Cal. Health & Safety Code Ann. § 50202 (West Supp. 1986) ("[N]othing in this division shall authorize the imposition of rent regulations or controls"). The requirement of " `clear articulation and affirmative expression' is not satisfied when the State's position is one of mere neutrality respecting the municipal actions challenged as anticompetitive." Community Communications Co., supra, at 55 (emphasis in original). Plainly, by that standard the Ordinance does not qualify for the Parker exemption from antitrust liability. III Finally, appellees suggest that a finding of pre-emption in this case will severely restrict a municipality's authority to enact a variety of measures in the public interest. "But this argument is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws." Community Communications Co., supra, at 56. Congress may ultimately agree with appellees' argument, and may choose to amend the antitrust laws to grant municipalities broad discretion to enact anticompetitive measures in the public interest. Pending such amendment, however, only a clearly articulated and affirmatively expressed state policy will exempt ordinances like this from the reach of the Sherman Act.

Since the Court has wrestled with the question of the degree to which federal antitrust laws prohibit state and local governments from imposing anticompetitive restraints on trade. Laws which impose such restraints have been held to be exempt from antitrust scrutiny if they constitute action of the State itself in its sovereign capacity, or state-authorized municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. See Community Today, the Court holds that a municipality's price-fixing scheme is not pre-empted by the federal antitrust laws whether or not the scheme is state-authorized, or furthers or implements a clearly articulated and affirmatively expressed state policy. Because today's decision discards over 40 years of carefully considered precedent, I respectfully dissent. I A Berkeley's Rent Stabilization Ordinance (hereafter Ordinance) effectively fixes prices for rental units in the city of Berkeley. In we held that a state statute "may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation." *275 In this case, by declaring maximum prices landlords may charge, Berkeley's Ordinance irresistibly pressures landlords to fix prices for their rental units. Thus, the Ordinance "facially conflict[s] with the Sherman Act because it mandate[s] [price fixing], an activity that has long been regarded as a per se violation of the Sherman Act." The Court recognizes that the Ordinance imposes anticompetitive restraints on trade, and that it has the same effect on the housing market as would a conspiracy by landlords to fix rental prices. Ante, at 266. Despite this, the Court holds that the Ordinance is not pre-empted by the Sherman Act because prices are fixed "unilaterally" by the city, rather than by "contract, combination, or conspiracy." I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of pre-emption. Certainly, nothing we said in Rice supports such a narrow view of pre-emption.[1] Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market. In California Retail Liquor Dealers a wine wholesaler sought to enjoin enforcement of a California statute which effectively *276 required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine-pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute challenged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkeley's Ordinance compels landlords to charge prices set by the city. The city "holds the power to prevent price competition by dictating the prices charged" by landlords. "[S]uch vertical control destroys horizontal competition as effectively as if [landlords] `formed a combination and endeavored to establish the same restrictions by agreement with each other.' " ). Schwegmann is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, "when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." "[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids `horizontal' price fixing." B Even if I accepted the Court's analysis of the antitrust pre-emption issue, I would find a functional "combination" in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other — a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion — that *277 "[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law." Ante, at 267. The Court doesn't explain why this is so — it simply baldly asserts that "[t]he ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy." The best I can make of this is that the Court apparently would interpret the Sherman Act to forbid only privately arranged price-fixing schemes. See ante, at 267-269. That interpretation would be plainly misguided. Section 1 of the Sherman Act declares illegal restraints of trade resulting from any "contract, combination or conspiracy." 15 U.S. C. 1. Understandably, that wording has led the Court to draw a "basic distinction" between concerted and independent action, and to hold that "[i]ndependent action is not proscribed" by 1. Monsanto 465 U.S. 7, However, until today we have not held, or indeed even suggested, that government-imposed restraints on economic actions cannot constitute concerted action. Rather, both Schwegmann and Midcal held that state statutes which "had a coercive effect upon parties who must obey the law" violated 1.[2] *278 If the Ordinance allowed the individual landlords ultimately to set their own rental prices, I might understand the Court's conclusion that any resulting price restraints did not necessarily result from collective action. Cf. Monsanto at However, because the Ordinance has the force of law, the city can compel landlords to do what the Sherman Act plainly forbids — to fix prices for rental units in Berkeley. Regardless of whether the landlords "agree" to the prices charged, the circumstances here clearly "exclude the possibility that the [city and the landlords] were acting independently." The Ordinance eliminates price competition more effectively than any private "agreement" ever could, and is therefore pre-empted by the Sherman Act. The Court's contrary conclusion does not further, as it argues, but rather distorts "traditional antitrust analysis." Ante, at 264. II Ultimately, the Court is holding that a municipality's authority to protect the public welfare should not be constrained by the Sherman Act. That holding excludes a broad range of local government anticompetitive activities from the reach of the antitrust laws. This flies in the face of the fact that Congress has not enacted such a broad antitrust exemption for municipalities. See Community ; ; cf. 15 U.S. C. 35(a) (1982 ed., Supp. II) (immunizing local governments *279 only from liability for damages for violations of the antitrust laws). "In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, we [have been] especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach." Lafayette, "The Parker state-action exemption reflects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours is a `dual system of government,' Parker, which has no place for sovereign cities." Community Of course, our decisions do not foreclose municipalities from enacting anticompetitive measures in the public interest, but only require that such actions be state-authorized and be implemented pursuant to a clearly articulated and affirmatively expressed state policy to displace competition with regulation or monopoly service. See 455 U.S., at Berkeley's Ordinance plainly is not exempt from antitrust scrutiny under this standard. Appellees suggest that three considerations support their argument that the Ordinance implements a clearly articulated and affirmatively expressed state policy authorizing municipalities to enact rent control measures: (1) the state legislature's 1972 ratification of a city rent control charter amendment; (2) the California Supreme Court's decision in which ultimately invalidated that amendment; and (3) the city's state-law obligation to provide affordable housing. None of these considerations support appellees' position. First, in 1972, Berkeley adopted a rent control charter amendment, which was approved by concurrent resolution of *280 both houses of the state legislature.[3] There are serious doubts that this purely pro forma approval would qualify the amendment for the Parker exemption. See In any event, that amendment was subsequently invalidated by the California Supreme Court, and the legislature's actions respecting its passage afford no support for the claimed exemption of the current Ordinance from antitrust scrutiny. Second, the Birkenfeld decision, while invalidating Berkeley's rent control amendment, found state authority for such measures in constitutional provisions conferring upon cities the power to "make and enforce all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." 550 P. 2d, at 1009-1010. But we have made clear that such general grants of authority do not constitute the required mandate to engage in conduct that necessarily constitutes a violation of the antitrust laws. See Community "Acceptance of such a proposition would wholly eviscerate the concepts of `clear articulation and affirmative expression' that our precedents require." Third, state law requires cities to "make adequate provision for the housing needs of all economic segments of the community." Cal. Govt. Code Ann. 65580(d) (West 1983). But, although appellees argue that rent control measures are a "foreseeable result" of these statutory obligations, see those laws are expressly neutral with respect to a city's authority to impose rent controls. California Govt. Code Ann. 65589(b) (West 1983) expressly provides that "nothing in this article shall be construed to be a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls." *281 See also Cal. Health & Safety Code Ann. 50202 (West Supp. 1986) ("[N]othing in this division shall authorize the imposition of rent regulations or controls"). The requirement of " `clear articulation and affirmative expression' is not satisfied when the State's position is one of mere neutrality respecting the municipal actions challenged as anticompetitive." Community Plainly, by that standard the Ordinance does not qualify for the Parker exemption from antitrust liability. III Finally, appellees suggest that a finding of pre-emption in this case will severely restrict a municipality's authority to enact a variety of measures in the public interest. "But this argument is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws." Community Congress may ultimately agree with appellees' argument, and may choose to amend the antitrust laws to grant municipalities broad discretion to enact anticompetitive measures in the public interest. Pending such amendment, however, only a clearly articulated and affirmatively expressed state policy will exempt ordinances like this from the reach of the Sherman Act.

Justice Stevens

majority

Cotton Petroleum Corp. v. New Mexico

https://www.courtlistener.com/opinion/112249/cotton-petroleum-corp-v-new-mexico/

https://www.courtlistener.com/api/rest/v3/clusters/112249/

1988-076

This case is a sequel to Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), in which we held that the Jicarilla Apache Tribe (Tribe) has the power to impose a severance tax on the production of oil and gas by non-Indian lessees of wells located on the Tribe's reservation. We must now decide whether the State of New Mexico can continue to impose its severance taxes on the same production of oil and gas. I All 742,135 acres of the Jicarilla Apache Reservation are located in northwestern New Mexico. Id., at 133. In 1887, President Cleveland issued an Executive Order setting aside this tract of public land "as a reservation for the use and occupation of the Jicarilla Apache Indians." 1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904). The only qualification contained in the order was a proviso protecting bona fide settlers from defeasance of previously acquired federal rights.[1]*167 Ibid. The land is still owned by the United States and is held in trust for the Tribe. The Tribe, which consists of approximately 2,500 enrolled members, is organized under the Indian Reorganization Act. 48 Stat. 984, 25 U.S. C. § 461 et seq. The Indian Mineral Leasing Act of 1938 (1938 Act) grants the Tribe authority, subject to the approval of the Secretary of the Interior (Secretary), to execute mineral leases. 52 Stat. 347, 25 U.S. C. § 396a et seq. Since at least as early as 1953, the Tribe has been leasing reservation lands to nonmembers for the production of oil and gas. See Merrion, supra, at 135. Mineral leases now encompass a substantial portion of the reservation and constitute the primary source of the Tribe's general operating revenues. In 1969, the Secretary approved an amendment to the Tribe's Constitution authorizing it to enact ordinances, subject to his approval, imposing taxes on non-members doing business in the reservation. See Revised Constitution of the Jicarilla Apache Tribe, Art. XI, § 1(e) (Equity). The Tribe enacted such an ordinance in 1976, imposing a severance tax on "any oil and natural gas severed, saved and removed from Tribal lands." Oil and Gas Severance Tax, Ordinance No. 77-0-02, Jicarilla Apache Tribal Code (hereinafter J. A. T. C.), Tit. 11, ch. 1 (1987) (Equity); see also Merrion, supra, at 135-136. The Secretary approved the ordinance later that year, and in 1982 this Court upheld the Tribe's power to impose a severance tax on pre-existing as well as future leases. See Merrion, supra. Subsequently, the Tribe enacted a privilege tax, which the *168 Secretary also approved. See Oil and Gas Privilege Tax, Ordinance No. 85-0-434, J. A. T. C., Tit. 11, ch. 2 (1985).[2] In 1976, Cotton Petroleum Corporation (Cotton), a non-Indian company in the business of extracting and marketing oil and gas, acquired five leases covering approximately 15,000 acres of the reservation. There were then 15 operating wells on the leased acreage and Cotton has since drilled another 50 wells. The leases were issued by the Tribe and the United States under the authority of the 1938 Act. Pursuant to the terms of the leases, Cotton pays the Tribe a rent of $125 per acre, plus a royalty of 12 1/2 percent of the value of its production.[3] In addition, Cotton pays the Tribe's oil and gas severance and privilege taxes, which amount to approximately 6 percent of the value of its production. Thus, Cotton's aggregate payment to the Tribe includes an acreage rent in excess of $1 million, plus royalties and taxes amounting to about 18 1/2 percent of its production. Prior to 1982, Cotton paid, without objection, five different oil and gas production taxes to the State of New Mexico.[4] The state taxes amount to about 8 percent of the value of Cotton's production. The same 8 percent is collected from producers throughout the State. Thus, on wells outside the *169 reservation, the total tax burden is only 8 percent, while Cotton's reservation wells are taxed at a total rate of 14 percent (8 percent by the State and 6 percent by the Tribe). No state tax is imposed on the royalties received by the Tribe. At the end of our opinion in Merrion, 455 U. S., at 158-159, n. 26, we added a footnote rejecting the taxpayer's argument that the tribal tax was invalid as a "multiple tax burden on interstate commerce" because imposed on the same activity already taxed by the State. One of the reasons the argument failed was that the taxpayer had made no attempt to show that the Tribe was "seek[ing] to seize more tax revenues than would be fairly related to the services provided by the Tribe." Ibid. After making that point, the footnote suggested that the state tax might be invalid under the Commerce Clause if in excess of what "the State's contact with the activity would justify."[5]Ibid. (emphasis in original). *170 In 1982, Cotton paid its state taxes under protest and then brought an action in the District Court for Santa Fe County challenging the taxes under the Indian Commerce, Interstate Commerce, Due Process, and Supremacy Clauses of the Federal Constitution. App. 2-15. Relying on the Merrion footnote, Cotton contended that state taxes imposed on reservation activity are only valid if related to actual expenditures by the State in relation to the activity being taxed. Record 421. In support of this theory, Cotton presented evidence at trial tending to prove that the amount of tax it paid to the State far exceeded the value of services that the State provided to it and that the taxes paid by all nonmember oil producers far exceeded the value of services provided to the reservation as a whole.[6] Cotton did not, however, attempt to prove that the state taxes imposed any burden on the Tribe. After trial, the Tribe sought, and was granted, leave to file a brief amicus curiae. Id., at 128. The Tribe argued that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates and would diminish the desirability of on-reservation oil and gas leases. Id., at 124. The Tribe expressed a particular concern about what it characterized as a failure of the State "to provide services commensurate with the taxes collected." Ibid. *171 After the Tribe filed its brief, the New Mexico District Court issued a decision upholding the state taxes. App. to Juris. Statement 14. The District Court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton,"[7] and concluded that the State had a valid interest in imposing taxes on non-Indians on the reservation.[8] Squarely rejecting Cotton's theory of the case, the court stated that "[t]he theory of public finance does not require expenditures equal to revenues." Id., at 17. Turning to the question whether the state taxes were inconsistent with the federal interest in fostering the economic development of Indian tribes, the District Court found that the "economic and legal burden of paying the state taxes falls on Cotton or its buyers" and that "[n]o economic burden falls on the tribe by virtue of the state taxes." Id., at 15. More specifically, it found that the state taxes had not affected the Tribe's ability to collect its taxes or to impose a higher *172 tax, and had "not in any way deterred production of oil and gas" on the reservation. Id., at 16-17. It concluded that the taxes had no adverse impact on tribal interests and that they were not pre-empted by federal law. Id., at 17-18. Finally, the District Court held that the taxes were fully consistent with the Commerce and Due Process Clauses of the Federal Constitution. Ibid. The New Mexico Court of Appeals affirmed. 106 N. M. 517, 745 P.2d 1170 (1987). Like the District Court, it was left unpersuaded by Cotton's contention that the New Mexico taxes are invalid because the State's expenditures on reservation activity do not equal the revenues collected. The Court of Appeals correctly noted that the Merrion footnote, 455 U.S., at 159, n. 26, "intimate[s] no opinion on the possibility of such a challenge," but simply suggests that a state tax "might" be invalid if greater than the State's "contact with the [on-reservation] activity would justify." 106 N. M., at 520, 745 P.2d, at 1173. Finding no support for Cotton's position in Merrion, the Court of Appeals looked instead to our opinion in Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), and concluded that a State's power to tax an activity connected to interstate commerce is not limited to the value of the services provided in support of that activity. 106 N. M., at 521, 745 P.2d, at 1174. Agreeing with the trial court that the New Mexico taxes were fairly related to the services provided to Cotton, the Court of Appeals rejected Cotton's Commerce Clause challenge. Ibid. The Tribe, again participating as an amicus curiae, urged a different approach to the case. Unlike Cotton, the Tribe argued that the state taxes could not withstand traditional pre-emption analysis. The Tribe conceded that state laws, to the extent they do not interfere with tribal self-government, may control the conduct of non-Indians on the reservation. It maintained, however, that the taxes at issue interfered with its ability to raise taxes and thus with its right to self-government. The Court of Appeals rejected *173 this argument because the record contained no evidence of any adverse impact on the Tribe and, indeed, indicated that the Tribe could impose even higher taxes than it had without adverse effect.[9] The New Mexico Supreme Court granted, but then quashed, a writ of certiorari. 106 N. M. 511, 745 P.2d 1159 (1987). We then noted probable jurisdiction and invited the parties to brief and argue the following additional question: "Does the Commerce Clause require that an Indian Tribe be treated as a State for purposes of determining whether a state tax on nontribal activities conducted on an Indian Reservation must be apportioned to account for taxes imposed on those same activities by the Indian Tribe?" 485 U.S. 1005 (1988). We now affirm the judgment of the New Mexico Court of Appeals. II This Court's approach to the question whether a State may tax on-reservation oil production by non-Indian lessees has varied over the course of the past century. At one time, such a tax was held invalid unless expressly authorized by Congress; more recently, such taxes have been upheld unless expressly or impliedly prohibited by Congress. The changed approach to these taxes is one aspect of the evolution of the doctrine of intergovernmental tax immunity that we recently discussed in detail in South Carolina v. Baker, 485 U.S. 505 (1988). During the first third of this century, this Court frequently invalidated state taxes that arguably imposed an indirect economic *174 burden on the Federal Government or its instrumentalities by application of the "intergovernmental immunity" doctrine. That doctrine "was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax `on' the government because it burdened the government's power to enter into the contract." Id., at 518. In a case decided in 1922, the Court applied the intergovernmental immunity doctrine to invalidate a state tax on income derived by a non-Indian lessee from the sale of his interest in oil produced on Indian land. See Gillespie v. Oklahoma, 257 U.S. 501. Consistently with the view of intergovernmental immunity that then prevailed, the Court stated that "a tax upon such profits is a direct hamper upon the effort of the United States to make the best terms that it can for its wards." Id., at 506 (citing Weston v. Charleston, 2 Pet. 449, 468 (1829)). The same reasoning was used to invalidate a variety of other state taxes imposed on non-Indian lessees at that time.[10] Shortly after reaching its zenith in the Gillespie decision, the doctrine of intergovernmental tax immunity started a long path in decline and has now been "thoroughly repudiated" by modern case law. South Carolina v. Baker, supra, at 520. In 1932, four Members of this Court argued that Gillespie was unsound and should be overruled. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 401 (Stone, J., dissenting); id., at 405 (Brandeis, J., dissenting). Five years later, the Court took a substantial step in that direction, rejecting the view that a nondiscriminatory state tax on a *175 private party contracting with the Government is invalid because the economic burden of the tax may fall on the Government. See James v. Dravo Contracting Co., 302 U.S. 134 (1937). "With the rationale for conferring a tax immunity on parties dealing with another government rejected, the government contract immunities recognized under prior doctrine were, one by one, eliminated." South Carolina v. Baker, supra, at 522. Specifically, in Helvering v. Mountain Producers Corp., 303 U.S. 376, 386-387 (1938), the Court squarely overruled Gillespie, supra. Thus, after Mountain Producers Corp., supra, was decided, oil and gas lessees operating on Indian reservations were subject to nondiscriminatory state taxation as long as Congress did not act affirmatively to pre-empt the state taxes. See ibid. See also Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949). In sum, it is well settled that, absent express congressional authorization, a State cannot tax the United States directly. See McCulloch v. Maryland, 4 Wheat. 316 (1819). It is also clear that the tax immunity of the United States is shared by the Indian tribes for whose benefit the United States holds reservation lands in trust. See Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985). Under current doctrine, however, a State can impose a nondiscriminatory tax on private parties with whom the United States or an Indian tribe does business, even though the financial burden of the tax may fall on the United States or tribe. See id., at 765; South Carolina v. Baker, supra, at 523. Although a lessee's oil production on Indian lands is therefore not "automatically exempt from state taxation," Congress does, of course, retain the power to grant such immunity. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150 (1973). Whether such immunity shall be granted is thus a question that "is essentially legislative in character." Texas Co., supra, at 365-366. The question for us to decide is whether Congress has acted to grant the Tribe such immunity, either expressly or *176 by plain implication.[11] In addition, we must consider Cotton's argument that the "multiple burden" imposed by the state and tribal taxes is unconstitutional. III Although determining whether federal legislation has pre-empted state taxation of lessees of Indian land is primarily an exercise in examining congressional intent, the history of tribal sovereignty serves as a necessary "backdrop" to that process. Cf. Rice v. Rehner, 463 U.S. 713, 719 (1983) (quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 (1973)). As a result, questions of pre-emption in this area are not resolved by reference to standards of pre-emption that have developed in other areas of the law, and are not controlled by "mechanical or absolute conceptions of state or tribal sovereignty." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980). Instead, we have applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved. Each case "requires a particularized examination of the relevant state, federal, and tribal interests." Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838 (1982). Moreover, in examining the pre-emptive force of the relevant federal legislation, we are cognizant of both the broad policies that underlie the legislation and the history of tribal independence in the field at issue. See ibid. It bears emphasis that although congressional silence no longer entails a broad-based immunity from taxation for private parties doing business with Indian tribes, federal pre-emption is not limited to cases in which Congress has expressly — as compared to *177 impliedly — pre-empted the state activity. Finally, we note that although state interests must be given weight and courts should be careful not to make legislative decisions in the absence of congressional action, ambiguities in federal law are, as a rule, resolved in favor of tribal independence. See ibid. Against this background, Cotton argues that the New Mexico taxes are pre-empted by the "federal laws and policies which protect tribal self-government and strengthen impoverished reservation economies." Brief for Appellants 16. Most significantly, Cotton contends that the 1938 Act exhibits a strong federal interest in guaranteeing Indian tribes the maximum return on their oil and gas leases. Moreover, Cotton maintains that the Federal and Tribal Governments, acting pursuant to the 1938 Act, its accompanying regulations, and the Jicarilla Apache Tribal Code, exercise comprehensive regulatory control over Cotton's on-reservation activity. Cotton describes New Mexico's responsibilities, in contrast, as "significantly limited." Brief for Appellants 21. Thus, weighing the respective state, federal, and tribal interests, Cotton concludes that the New Mexico taxes unduly interfere with the federal interest in promoting tribal economic self-sufficiency and are not justified by an adequate state interest. We disagree. The 1938 Act neither expressly permits state taxation nor expressly precludes it, but rather simply provides that "unallotted lands within any Indian reservation or lands owned by any tribe . . . may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council . . . , for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U.S. C. § 396a. The Senate and House Reports that accompanied the Act, moreover — even when considered in their broadest possible terms — shed little light on congressional intent concerning state taxation of oil and gas produced on leased lands. See S. Rep. No. 985, 75th Cong., 1st Sess. (1937); H. R. Rep. No. 1872, 75th Cong., *178 3d Sess. (1938). Both Reports reflect that the proposed legislation was suggested by the Secretary and considered by the appropriate committees, which recommended that it pass without amendment. Beyond this procedural summary, the Reports simply rely on the Secretary's letter of transmittal to describe the purpose of the Act. That letter provides that the legislation was intended, in light of the disarray of federal law in the area, "to obtain uniformity so far as practicable of the law relating to the leasing of tribal lands for mining purposes," and, in particular, was designed to "bring all mineral leasing matters in harmony with the Indian Reorganization Act." Id., at 1, 3; S. Rep. No. 985, supra, at 2, 3. In addition, the letter contains the following passage: "It is not believed that the present law is adequate to give the Indians the greatest return from their property. As stated, present law provides for locating and taking mineral leases in the same manner as mining locations are made on the public lands of the United States; but there are disadvantages in following this procedure on Indian lands that are not present in applying for a claim on the public domain. For instance, on the public domain the discoverer of a mineral deposit gets extralateral rights and can follow the ore beyond the side lines indefinitely, while on the Indian lands under the act of June 30, 1919, he is limited to the confines of the survey markers not to exceed 600 feet by 1,500 feet in any one claim. The draft of the bill herewith would permit the obtaining of sufficient acreage to remove the necessity for extralateral rights with all of its attending controversies." Id., at 2; H. R. Rep. No. 1872, supra, at 2 (emphasis added). Relying on the first sentence in this paragraph, Cotton argues that the 1938 Act embodies a broad congressional policy of maximizing revenues for Indian tribes. Cotton finds support for this proposition in Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). That case raised the question *179 whether the 1938 Act authorizes state taxation of a tribe's royalty interests under oil and gas leases issued to nonmembers. Applying the settled rule that a tribe may only be directly taxed by a State if "Congress has made its intention to [lift the tribe's exemption] unmistakably clear," id., at 765, we concluded that "the State may not tax Indian royalty income from leases issued pursuant to the 1938 Act," id., at 768. In a footnote we added the observation that direct state taxation of Indian revenues would frustrate the 1938 Act's purpose of "ensur[ing] that Indians receive `the greatest return from their property,' [S. Rep. No. 985, supra, at] 2; H. R. Rep. No. 1872, supra, at 2." Id., at 767, n. 5. To the extent Cotton seeks to give the Secretary's reference to "the greatest return from their property" talismanic effect, arguing that these words demonstrate that Congress intended to guarantee Indian tribes the maximum profit available without regard to competing state interests, it overstates its case. There is nothing remarkable in the proposition that, in authorizing mineral leases, Congress sought to provide Indian tribes with a profitable source of revenue. It is however quite remarkable, indeed unfathomable in our view, to suggest that Congress intended to remove all state-imposed obstacles to profitability by attaching to the Senate and House Reports a letter from the Secretary that happened to include the phrase "the greatest return from their property." Read in the broadest terms possible, the relevant paragraph suggests that Congress sought to remove "disadvantages in [leasing mineral rights] on Indian lands that are not present in applying for a claim on the public domain." S. Rep. No. 985, supra, at 2; H. R. Rep. No. 1872, supra, at 2. By 1938, however, it was established that oil and gas lessees of public lands were subject to state taxation. See Mid-Northern Oil Co. v. Walker, 268 U.S. 45 (1925). It is thus apparent that Congress was not concerned with state taxation, but with matters such as the unavailability of extralateral mineral rights on Indian land. Nor do we *180 read the Blackfeet footnote, 471 U.S., at 767, n. 5, to give the Secretary's words greater effect. We think it clear that the footnote simply stands for the proposition that the Act's purpose of creating a source of revenue for Indian tribes provides evidence that Congress did not intend to authorize direct state taxation of Indian royalties. We thus agree that a purpose of the 1938 Act is to provide Indian tribes with badly needed revenue, but find no evidence for the further supposition that Congress intended to remove all barriers to profit maximization. The Secretary's letter of transmittal, even when read permissively for broad policy goals and even when read to resolve ambiguities in favor of tribal independence, supports no more. Our review of the legislation that preceded the 1938 Act provides no additional support for Cotton's expansive view of the Act's purpose. This history is relevant in that it supplies both the legislative background against which Congress enacted the 1938 Act and the relevant "backdrop" of tribal independence. Congress first authorized mineral leasing on Indian lands in 1891. See Act of Feb. 28, 1891, § 3, 26 Stat. 795, 25 U.S. C. § 397 (1891 Act). That legislation, which empowered tribes to enter into grazing and mining leases, only applied to lands "occupied by Indians who have bought and paid for the same," and was thus interpreted to be inapplicable to Executive Order reservations. See British-American Oil Producing Co. v. Board of Equalization of Montana, 299 U.S. 159, 161-162, 164 (1936). Mineral leasing on reservations created by Executive Order — like the Jicarilla Apache Reservation — was not authorized until almost four decades later. After years of debate concerning whether Indians had any right to share in royalties derived from oil and gas leases in Executive Order reservations,[12]*181 Congress finally enacted legislation in 1927 that authorized such leases. See Indian Oil Act of 1927, 44 Stat. (part 2) 1347, 25 U.S. C. § 398a (1927 Act). While both the 1891 and 1927 Acts were in effect, Gillespie was the prevailing law and, under its expansive view of inter-governmental tax immunity, States were powerless to impose severance taxes on oil produced on Indian reservations unless Congress expressly waived that immunity. Just two years after Gillespie was decided, Congress took such express action and authorized state taxation of oil and gas production in treaty reservations. See Indian Oil Leasing Act of 1924, 43 Stat. 244 (1924 Act), current version at 25 U.S. C. § 398. See also British-American Oil Producing Co. v. Board of Equalization, supra (applying 1924 Act to uphold state tax imposed on the production of oil and gas in *182 the Blackfeet Indian Reservation). More significantly for purposes of this case, when Congress first authorized oil and gas leasing on Executive Order reservations in the 1927 Act, it expressly waived immunity from state taxation of oil and gas lessees operating in those reservations. See 44 Stat. (part 2) 1347, 25 U.S. C. § 398c. Thus, at least as to Executive Order reservations, state taxation of nonmember oil and gas lessees was the norm from the very start. There is, accordingly, simply no history of tribal independence from state taxation of these lessees to form a "backdrop" against which the 1938 Act must be read. We are also unconvinced that the contrast between the 1927 Act's express waiver of immunity and the 1938 Act's silence on the subject suggests that Congress intended to repeal the waiver in the 1938 Act and thus to diametrically change course by implicitly barring state taxation. The general repealer clause contained in the 1938 Act provides that "[a]ll Act[s] or parts of Acts inconsistent herewith are hereby repealed." 52 Stat. 348. Although one might infer from this clause that all preceding, nonconflicting legislation in the area, like the 1927 Act's waiver provision, is implicitly incorporated, we need not go so far to simply conclude that the 1938 Act's omission demonstrates no congressional purpose to close the door to state taxation. Moreover, the contrast between the 1927 and 1938 Acts is easily explained by the contemporaneous history of the doctrine of intergovernmental tax immunity. In 1927, Gillespie prevailed, and States were only permitted to tax lessees of Indian lands if Congress expressly so provided. By the time the 1938 Act was enacted, however, Gillespie had been overruled and replaced by the modern rule permitting such taxes absent congressional disapproval.[13] Thus, Congress' approaches to both the *183 1927 and 1938 Acts were fully consistent with an intent to permit state taxation of nonmember lessees.[14] Cotton nonetheless maintains that our decisions in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and Ramah Navajo School Bd., Inc. v. Bureau of Revenue of *184 New Mexico, 458 U.S. 832 (1982), compel the conclusion that the New Mexico taxes are pre-empted by federal law. In pressing this argument, Cotton ignores the admonition included in both of those decisions that the relevant pre-emption test is a flexible one sensitive to the particular state, federal, and tribal interests involved. See id., at 838; Bracker, supra, at 145. In Bracker, we addressed the question whether Arizona could impose its motor carrier license and use fuel taxes on a nonmember logging company's use of roads located solely within an Indian reservation. Significantly, the roads at issue were "built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors," 448 U.S., at 150, and the State was "unable to identify any regulatory function or service [it] performed . . . that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation," id., at 148-149. See also id., at 174 (Powell, J., concurring) ("The State has no interest in raising revenues from the use of Indian roads that cost it nothing and over which it exercises no control"). Moreover, it was undisputed in Bracker that the economic burden of the taxes ultimately fell on the Tribe. Id., at 151. Based on these facts and on our conclusion that collection of the taxes would undermine federal policy "in a context in which the Federal Government has undertaken to regulate the most minute details" of the Tribe's timber operations, we held that the taxes were pre-empted. Id., at 149. Ramah Navajo School Bd. involved a similar factual scenario. In the late 1960's, New Mexico closed the only public high school that served the Ramah Navajo children. The State then sought to tax two nonmember construction firms hired by the Tribe to build a school in the reservation. As in Bracker, the State asserted no legitimate regulatory interest that might justify the tax. Ramah Navajo School Bd., supra, at 843-846. Also as in Bracker, the economic burden of the tax ultimately fell on the Tribe. And finally, again *185 as in Bracker, we noted that federal law imposed a comprehensive regulatory scheme. Ramah Navajo School Bd., 458 U. S., at 839-842. We concluded: "Having declined to take any responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education — a scheme which has `left the State with no duties or responsibilities.' " Id., at 843 (quoting Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 691 (1965)). The factual findings of the New Mexico District Court clearly distinguish this case from both Bracker, supra, and Ramah Navajo School Bd., supra. After conducting a trial, that court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton," costing the State approximately $3 million per year. App. to Juris. Statement 16. Indeed, Cotton concedes that from 1981 through 1985 New Mexico provided its operations with services costing $89,384, but argues that the cost of these services is disproportionate to the $2,293,953 in taxes the State collected from Cotton. Brief for Appellants 13-14. Neither Bracker, nor Ramah Navajo School Bd., however, imposes such a proportionality requirement on the States.[15] Rather, both cases involved complete abdication or noninvolvement of the State in the on-reservation activity. The present case is also unlike Bracker and Ramah Navajo School Bd., in that the District Court found that "[n]o economic burden falls on the tribe by virtue of the state taxes," App. to Juris. Statement 15, and that the Tribe could, in fact, increase its taxes without adversely affecting on-reservation oil and gas development, id., at 17. Finally, the District Court found that the *186 State regulates the spacing and mechanical integrity of wells located on the reservation. Id., at 16. Thus, although the federal and tribal regulations in this case are extensive,[16] they are not exclusive, as were the regulations in Bracker and Ramah Navajo School Bd. We thus conclude that federal law, even when given the most generous construction, does not pre-empt New Mexico's oil and gas severance taxes. This is not a case in which the State has had nothing to do with the on-reservation activity, save tax it. Nor is this a case in which an unusually large state tax has imposed a substantial burden on the Tribe.[17] It is, of course, reasonable to infer that the New *187 Mexico taxes have at least a marginal effect on the demand for on-reservation leases, the value to the Tribe of those leases, and the ability of the Tribe to increase its tax rate. Any impairment to the federal policy favoring the exploitation of on-reservation oil and gas resources by Indian tribes that might be caused by these effects, however, is simply too indirect and too insubstantial to support Cotton's claim of pre-emption. To find pre-emption of state taxation in such indirect burdens on this broad congressional purpose, absent some special factor such as those present in Bracker and Ramah Navajo School Bd., would be to return to the pre-1937 doctrine of intergovernmental tax immunity.[18] Any adverse effect on the Tribe's finances caused by the taxation of a private party contracting with the Tribe would be ground to strike the state tax. Absent more explicit guidance from Congress, we decline to return to this long-discarded and thoroughly repudiated doctrine. IV Cotton also argues that New Mexico's severance taxes — "insofar as they are imposed without allocation or apportionment on top of Jicarilla Apache tribal taxes" — impose "an unlawful *188 multiple tax burden on interstate commerce." Brief for Appellants 33. In support of this argument, Cotton relies on three facts: (1) that the State and the Tribe tax the same activity; (2) that the total tax burden on Cotton is higher than the burden on its off-reservation competitors who pay no tribal tax; and (3) that the state taxes generate revenues that far exceed the value of the services it provides on the reservation. As we pointed out in the Merrion footnote, see n. 5, supra, a multiple taxation issue may arise when more than one State attempts to tax the same activity. If a unitary business derives income from several States, each State may only tax the portion of that income that is attributable to activity within its borders.[19] See, e. g., Exxon Corp. v. Wisconsin Department of Revenue, 447 U.S. 207 (1980). Thus, in such a case, an apportionment formula is necessary in order to identify the scope of the taxpayer's business that is within the taxing jurisdiction of each State. In this case, however, all of Cotton's leases are located entirely within the borders of the State of New Mexico and also within the borders of the Jicarilla Apache Reservation. Indeed, they are also within the borders of the United States. There are, therefore, three different governmental entities, each of which has taxing jurisdiction over all of the non-Indian wells. Cf. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980) (Indian Tribe did not oust State of power to impose cigarette tax on on-reservation sales to non-Indian customers by imposing its own tax on transaction). *189 The federal sovereign has the undoubted power to prohibit taxation of the Tribe's lessees by the Tribe, by the State, or by both, but since it has not exercised that power, concurrent taxing jurisdiction over all of Cotton's on-reservation leases exists. Cf. Commonwealth Edison Co. v. Montana, 453 U. S., at 617 (noting that because the taxed activity took place exclusively within Montana — although much of it on federal lands within the State — no nexus or apportionment problem existed). Unless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases. It is, of course, true that the total taxes paid by Cotton are higher than those paid by off-reservation producers. But neither the State nor the Tribe imposes a discriminatory tax. The burdensome consequence is entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction. As we noted in Merrion, the tribal tax does "not treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation." 455 U.S., at 157-158. Similarly, the New Mexico taxes are administered in an evenhanded manner and are imposed at a uniform rate throughout the State — both on and off the reservation. See 106 N. M., at 521, 745 P.2d, at 1174. Cotton's most persuasive argument is based on the evidence that tax payments by reservation lessees far exceed the value of services provided by the State to the lessees, or more generally, to the reservation as a whole. See n. 6, supra. There are, however, two sufficient reasons for rejecting this argument. First, the relevant services provided by the State include those that are available to the lessees and the members of the Tribe off the reservation as well as on it. The intangible value of citizenship in an organized society is not easily measured in dollars and cents; moreover, the District Court found that the actual per capita state expenditures for Jicarilla members are equal to or greater than *190 the per capita expenditures for non-Indian citizens. See App. to Juris. Statement 16. Second, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer — or by those living in the community where the taxpayer is located — must equal the amount of its tax obligations. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491, n. 21 (1987). As we recently explained: "[T]here is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be reasonably related to the value of the services provided to the activity. Instead, our consistent rule has been: " `Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied. " `A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good.' Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 521-523 (1937) (citations and footnote omitted). ..... "There is no reason to suppose that this latitude afforded the States under the Due Process Clause is somehow divested by the Commerce Clause merely because the taxed activity has some connection to interstate commerce; *191 particularly when the tax is levied on an activity conducted within the State." Commonwealth Edison Co., supra, at 622-623. Cotton, in effect, asks us to divest New Mexico of its normal latitude because its taxes have "some connection" to commerce with the Tribe. The connection, however, is by no means close enough. There is simply no evidence in the record that the tax has had an adverse effect on the Tribe's ability to attract oil and gas lessees. It is, of course, reasonable to infer that the existence of the state tax imposes some limit on the profitability of Indian oil and gas leases — just as it no doubt imposes a limit on the profitability of off-reservation leasing arrangements — but that is precisely the same indirect burden that we rejected as a basis for granting non-Indian contractors an immunity from state taxation in Helvering v. Mountain Producers Corp., 303 U.S. 376 (1938); Oklahoma Tax Comm'n v. United States, 319 U.S. 598 (1943); Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342 (1949); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463 (1976); and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980). V In our order noting probable jurisdiction we invited the parties to address the question whether the Tribe should be treated as a State for the purpose of determining whether New Mexico's taxes must be apportioned. All of the Indian tribes that have filed amicus curiae briefs addressing this question — including the Jicarilla Apache Tribe — have uniformly taken the position that Indian tribes are not States within the meaning of the Commerce Clause. This position is supported by the text of the Clause itself. Article I, § 8, cl. 3, provides that the "Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Thus, the Commerce Clause draws a clear distinction between "States" and "Indian *192 Tribes." As Chief Justice Marshall observed in Cherokee Nation v. Georgia, 5 Pet. 1, 18 (1831): "The objects to which the power of regulating commerce might be directed, are divided into three distinct classes — foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct." In fact, the language of the Clause no more admits of treating Indian tribes as States than of treating foreign nations as States. See ibid. It is also well established that the Interstate Commerce and Indian Commerce Clauses have very different applications. In particular, while the Interstate Commerce Clause is concerned with maintaining free trade among the States even in the absence of implementing federal legislation, see McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330 (1944); Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs, see Morton v. Mancari, 417 U.S. 535, 551-552 (1974); F. Cohen, Handbook of Federal Indian Law 207-208, and nn. 2, 3 and 9-11 (1982). The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause. Most notably, as our discussion of Cotton's "multiple taxation" argument demonstrates, the fact that States and tribes have concurrent jurisdiction over the same territory makes it inappropriate to apply Commerce Clause doctrine developed in the context of commerce "among" States with mutually exclusive territorial jurisdiction to trade "with" Indian tribes. Accordingly, we have no occasion to modify our comment on this question in the Bracker case: "Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it *193A treacherous to import to one notions of pre-emption that are properly applied to the other." 448 U.S., at 143. The judgment of the New Mexico Court of Appeals is Affirmed.

This case is a sequel to in which we held that the Jicarilla Apache Tribe (Tribe) has the power to impose a severance tax on the production of oil and gas by non-Indian lessees of wells located on the Tribe's reservation. We must now decide whether the State of New Mexico can continue to impose its severance taxes on the same production of oil and gas. I All 742,13 acres of the Jicarilla Apache Reservation are located in northwestern New Mexico. In 87, President Cleveland issued an Executive Order setting aside this tract of public land "as a reservation for the use and occupation of the Jicarilla Apache Indians." 1 C. Kappler, Indian Affairs, Laws and Treaties 87 (1904). The only qualification contained in the order was a proviso protecting bona fide settlers from defeasance of previously acquired federal rights.[1]*17 The land is still owned by the United States and is held in trust for the Tribe. The Tribe, which consists of approximately 2,00 enrolled members, is organized under the Indian Reorganization Act. 2 U.S. C. 41 et seq. The Indian Mineral Leasing Act of 1938 (1938 Act) grants the Tribe authority, subject to the approval of the Secretary of the Interior (Secretary), to execute mineral leases. 2 U.S. C. 39a et seq. Since at least as early as 193, the Tribe has been leasing reservation lands to nonmembers for the production of oil and gas. See Mineral leases now encompass a substantial portion of the reservation and constitute the primary source of the Tribe's general operating revenues. In 199, the Secretary approved an amendment to the Tribe's Constitution authorizing it to enact ordinances, subject to his approval, imposing taxes on non-members doing business in the reservation. See Revised Constitution of the Jicarilla Apache Tribe, Art. XI, 1(e) (Equity). The Tribe enacted such an ordinance in 197, imposing a severance tax on "any oil and natural gas severed, saved and removed from Tribal lands." Oil and Gas Severance Tax, Ordinance No. 77-0-02, Jicarilla Apache Tribal Code (hereinafter J. A. T. C.), Tit. 11, ch. 1 (Equity); see also -13. The Secretary approved the ordinance later that year, and in 1982 this Court upheld the Tribe's power to impose a severance tax on pre-existing as well as future leases. See Subsequently, the Tribe enacted a privilege tax, which the * Secretary also approved. See Oil and Gas Privilege Tax, Ordinance No. 8-0-434, J. A. T. C., Tit. 11, ch. 2[2] In 197, Cotton Petroleum Corporation (Cotton), a non-Indian company in the business of extracting and marketing oil and gas, acquired five leases covering approximately 1,000 acres of the reservation. There were then 1 operating wells on the leased acreage and Cotton has since drilled another 0 wells. The leases were issued by the Tribe and the United States under the authority of the 1938 Act. Pursuant to the terms of the leases, Cotton pays the Tribe a rent of $12 per acre, plus a royalty of 12 1/2 percent of the value of its production.[3] In addition, Cotton pays the Tribe's oil and gas severance and privilege taxes, which amount to approximately percent of the value of its production. Thus, Cotton's aggregate payment to the Tribe includes an acreage rent in excess of $1 million, plus royalties and taxes amounting to about 1/2 percent of its production. Prior to 1982, Cotton paid, without objection, five different oil and gas production taxes to the State of New Mexico.[4] The state taxes amount to about 8 percent of the value of Cotton's production. The same 8 percent is collected from producers throughout the State. Thus, on wells outside the *19 reservation, the total tax burden is only 8 percent, while Cotton's reservation wells are taxed at a total rate of 14 percent (8 percent by the State and percent by the Tribe). No state tax is imposed on the royalties received by the Tribe. At the end of our opinion in -19, n. 2, we added a rejecting the taxpayer's argument that the tribal tax was invalid as a "multiple tax burden on interstate commerce" because imposed on the same activity already taxed by the State. One of the reasons the argument failed was that the taxpayer had made no attempt to show that the Tribe was "seek[ing] to seize more tax revenues than would be fairly related to the services provided by the Tribe." After making that point, the suggested that the state tax might be invalid under the Commerce Clause if in excess of what "the State's contact with the activity would justify."[] (emphasis in original). *170 In 1982, Cotton paid its state taxes under protest and then brought an action in the District Court for Santa Fe County challenging the taxes under the Indian Commerce, Interstate Commerce, Due Process, and Supremacy Clauses of the Federal Constitution. App. 2-1. Relying on the Cotton contended that state taxes imposed on reservation activity are only valid if related to actual expenditures by the State in relation to the activity being taxed. Record 421. In support of this theory, Cotton presented evidence at trial tending to prove that the amount of tax it paid to the State far exceeded the value of services that the State provided to it and that the taxes paid by all nonmember oil producers far exceeded the value of services provided to the reservation as a whole.[] Cotton did not, however, attempt to prove that the state taxes imposed any burden on the Tribe. After trial, the Tribe sought, and was granted, leave to file a brief amicus curiae. The Tribe argued that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates and would diminish the desirability of on-reservation oil and gas leases. The Tribe expressed a particular concern about what it characterized as a failure of the State "to provide services commensurate with the taxes collected." *171 After the Tribe filed its brief, the New Mexico District Court issued a decision upholding the state taxes. App. to Juris. Statement 14. The District Court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton,"[7] and concluded that the State had a valid interest in imposing taxes on non-Indians on the reservation.[8] Squarely rejecting Cotton's theory of the case, the court stated that "[t]he theory of public finance does not require expenditures equal to revenues." Turning to the question whether the state taxes were inconsistent with the federal interest in fostering the economic development of Indian tribes, the District Court found that the "economic and legal burden of paying the state taxes falls on Cotton or its buyers" and that "[n]o economic burden falls on the tribe by virtue of the state taxes." More specifically, it found that the state taxes had not affected the Tribe's ability to collect its taxes or to impose a higher * tax, and had "not in any way deterred production of oil and gas" on the reservation. It concluded that the taxes had no adverse impact on tribal interests and that they were not pre-empted by federal law. -. Finally, the District Court held that the taxes were fully consistent with the Commerce and Due Process Clauses of the Federal Constitution. The New Mexico Court of Appeals affirmed. 10 N. M. 17, Like the District Court, it was left unpersuaded by Cotton's contention that the New Mexico taxes are invalid because the State's expenditures on reservation activity do not equal the revenues collected. The Court of Appeals correctly noted that the 4 U.S., 9, n. 2, "intimate[s] no opinion on the possibility of such a challenge," but simply suggests that a state tax "might" be invalid if greater than the State's "contact with the [on-reservation] activity would justify." 10 N. M., at Finding no support for Cotton's position in the Court of Appeals looked instead to our opinion in Commonwealth Edison and concluded that a State's power to tax an activity connected to interstate commerce is not limited to the value of the services provided in support of that activity. 10 N. M., at Agreeing with the trial court that the New Mexico taxes were fairly related to the services provided to Cotton, the Court of Appeals rejected Cotton's Commerce Clause challenge. The Tribe, again participating as an amicus curiae, urged a different approach to the case. Unlike Cotton, the Tribe argued that the state taxes could not withstand traditional pre-emption analysis. The Tribe conceded that state laws, to the extent they do not interfere with tribal self-government, may control the conduct of non-Indians on the reservation. It maintained, however, that the taxes at issue interfered with its ability to raise taxes and thus with its right to self-government. The Court of Appeals rejected *173 this argument because the record contained no evidence of any adverse impact on the Tribe and, indeed, indicated that the Tribe could impose even higher taxes than it had without adverse effect.[9] The New Mexico Supreme Court granted, but then quashed, a writ of certiorari. 10 N. M. 11, We then noted probable jurisdiction and invited the parties to brief and argue the following additional question: "Does the Commerce Clause require that an Indian Tribe be treated as a State for purposes of determining whether a state tax on nontribal activities conducted on an Indian Reservation must be apportioned to account for taxes imposed on those same activities by the Indian Tribe?" We now affirm the judgment of the New Mexico Court of Appeals. II This Court's approach to the question whether a State may tax on-reservation oil production by non-Indian lessees has varied over the course of the past century. At one time, such a tax was held invalid unless expressly authorized by Congress; more recently, such taxes have been upheld unless expressly or impliedly prohibited by Congress. The changed approach to these taxes is one aspect of the evolution of the doctrine of intergovernmental tax immunity that we recently discussed in detail in South During the first third of this century, this Court frequently invalidated state taxes that arguably imposed an indirect economic *174 burden on the Federal Government or its instrumentalities by application of the "intergovernmental immunity" doctrine. That doctrine "was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax `on' the government because it burdened the government's power to enter into the contract." In a case decided in 1922, the Court applied the intergovernmental immunity doctrine to invalidate a state tax on income derived by a non-Indian lessee from the sale of his interest in oil produced on Indian land. See Consistently with the view of intergovernmental immunity that then prevailed, the Court stated that "a tax upon such profits is a direct hamper upon the effort of the United States to make the best terms that it can for its wards." at 0 ). The same reasoning was used to invalidate a variety of other state taxes imposed on non-Indian lessees at that time.[10] Shortly after reaching its zenith in the decision, the doctrine of intergovernmental tax immunity started a long path in decline and has now been "thoroughly repudiated" by modern case law. South at In 1932, four Members of this Court argued that was unsound and should be overruled. See (Stone, J., dissenting); Five years later, the Court took a substantial step in that direction, rejecting the view that a nondiscriminatory state tax on a *17 private party contracting with the Government is invalid because the economic burden of the tax may fall on the Government. See "With the rationale for conferring a tax immunity on parties dealing with another government rejected, the government contract immunities recognized under prior doctrine were, one by one, eliminated." South Specifically, in the Court squarely overruled Thus, after Mountain Producers was decided, oil and gas lessees operating on Indian reservations were subject to nondiscriminatory state taxation as long as Congress did not act affirmatively to pre-empt the state taxes. See See also Oklahoma Tax In sum, it is well settled that, absent express congressional authorization, a State cannot tax the United States directly. See It is also clear that the tax immunity of the United States is shared by the Indian tribes for whose benefit the United States holds reservation lands in trust. See Under current doctrine, however, a State can impose a nondiscriminatory tax on private parties with whom the United States or an Indian tribe does business, even though the financial burden of the tax may fall on the United States or tribe. See ; South Although a lessee's oil production on Indian lands is therefore not "automatically exempt from state taxation," Congress does, of course, retain the power to grant such immunity. Mescalero Apache Whether such immunity shall be granted is thus a question that "is essentially legislative in character." Texas The question for us to decide is whether Congress has acted to grant the Tribe such immunity, either expressly or *17 by plain implication.[11] In addition, we must consider Cotton's argument that the "multiple burden" imposed by the state and tribal taxes is unconstitutional. III Although determining whether federal legislation has pre-empted state taxation of lessees of Indian land is primarily an exercise in examining congressional intent, the history of tribal sovereignty serves as a necessary "backdrop" to that process. Cf. ). As a result, questions of pre-emption in this area are not resolved by reference to standards of pre-emption that have developed in other areas of the law, and are not controlled by "mechanical or absolute conceptions of state or tribal sovereignty." White Mountain Apache Instead, we have applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved. Each case "requires a particularized examination of the relevant state, federal, and tribal interests." Ramah Navajo School Moreover, in examining the pre-emptive force of the relevant federal legislation, we are cognizant of both the broad policies that underlie the legislation and the history of tribal independence in the field at issue. See It bears emphasis that although congressional silence no longer entails a broad-based immunity from taxation for private parties doing business with Indian tribes, federal pre-emption is not limited to cases in which Congress has expressly — as compared to *177 impliedly — pre-empted the state activity. Finally, we note that although state interests must be given weight and courts should be careful not to make legislative decisions in the absence of congressional action, ambiguities in federal law are, as a rule, resolved in favor of tribal independence. See Against this background, Cotton argues that the New Mexico taxes are pre-empted by the "federal laws and policies which protect tribal self-government and strengthen impoverished reservation economies." Brief for Appellants 1. Most significantly, Cotton contends that the 1938 Act exhibits a strong federal interest in guaranteeing Indian tribes the maximum return on their oil and gas leases. Moreover, Cotton maintains that the Federal and Tribal Governments, acting pursuant to the 1938 Act, its accompanying regulations, and the Jicarilla Apache Tribal Code, exercise comprehensive regulatory control over Cotton's on-reservation activity. Cotton describes New Mexico's responsibilities, in contrast, as "significantly limited." Brief for Appellants 21. Thus, weighing the respective state, federal, and tribal interests, Cotton concludes that the New Mexico taxes unduly interfere with the federal interest in promoting tribal economic self-sufficiency and are not justified by an adequate state interest. We disagree. The 1938 Act neither expressly permits state taxation nor expressly precludes it, but rather simply provides that "unallotted lands within any Indian reservation or lands owned by any tribe may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 2 U.S. C. 39a. The Senate and House Reports that accompanied the Act, moreover — even when considered in their broadest possible terms — shed little light on congressional intent concerning state taxation of oil and gas produced on leased lands. See S. Rep. No. 7th Cong., 1st Sess. ; H. R. Rep. No. 7th Cong., *178 3d Sess. Both Reports reflect that the proposed legislation was suggested by the Secretary and considered by the appropriate committees, which recommended that it pass without amendment. Beyond this procedural summary, the Reports simply rely on the Secretary's letter of transmittal to describe the purpose of the Act. That letter provides that the legislation was intended, in light of the disarray of federal law in the area, "to obtain uniformity so far as practicable of the law relating to the leasing of tribal lands for mining purposes," and, in particular, was designed to "bring all mineral leasing matters in harmony with the Indian Reorganization Act." ; S. Rep. No. In addition, the letter contains the following passage: "It is not believed that the present law is adequate to give the Indians the greatest return from their property. As stated, present law provides for locating and taking mineral leases in the same manner as mining locations are made on the public lands of the United States; but there are disadvantages in following this procedure on Indian lands that are not present in applying for a claim on the public domain. For instance, on the public domain the discoverer of a mineral deposit gets extralateral rights and can follow the ore beyond the side lines indefinitely, while on the Indian lands under the act of June 30, 1919, he is limited to the confines of the survey markers not to exceed 00 feet by 1,00 feet in any one claim. The draft of the bill herewith would permit the obtaining of sufficient acreage to remove the necessity for extralateral rights with all of its attending controversies." ; H. R. Rep. No. Relying on the first sentence in this paragraph, Cotton argues that the 1938 Act embodies a broad congressional policy of maximizing revenues for Indian tribes. Cotton finds support for this proposition in That case raised the question *179 whether the 1938 Act authorizes state taxation of a tribe's royalty interests under oil and gas leases issued to nonmembers. Applying the settled rule that a tribe may only be directly taxed by a State if "Congress has made its intention to [lift the tribe's exemption] unmistakably clear," we concluded that "the State may not tax Indian royalty income from leases issued pursuant to the 1938 Act," In a we added the observation that direct state taxation of Indian revenues would frustrate the 1938 Act's purpose of "ensur[ing] that Indians receive `the greatest return from their property,' [S. Rep. No. at] 2; H. R. Rep. No." To the extent Cotton seeks to give the Secretary's reference to "the greatest return from their property" talismanic effect, arguing that these words demonstrate that Congress intended to guarantee Indian tribes the maximum profit available without regard to competing state interests, it overstates its case. There is nothing remarkable in the proposition that, in authorizing mineral leases, Congress sought to provide Indian tribes with a profitable source of revenue. It is however quite remarkable, indeed unfathomable in our view, to suggest that Congress intended to remove all state-imposed obstacles to profitability by attaching to the Senate and House Reports a letter from the Secretary that happened to include the phrase "the greatest return from their property." Read in the broadest terms possible, the relevant paragraph suggests that Congress sought to remove "disadvantages in [leasing mineral rights] on Indian lands that are not present in applying for a claim on the public domain." S. Rep. No. ; H. R. Rep. No. By 1938, however, it was established that oil and gas lessees of public lands were subject to state taxation. See Mid-Northern Oil v. Walker, It is thus apparent that Congress was not concerned with state taxation, but with matters such as the unavailability of extralateral mineral rights on Indian land. Nor do we *0 read the Blackfeet 471 U.S., to give the Secretary's words greater effect. We think it clear that the simply stands for the proposition that the Act's purpose of creating a source of revenue for Indian tribes provides evidence that Congress did not intend to authorize direct state taxation of Indian royalties. We thus agree that a purpose of the 1938 Act is to provide Indian tribes with badly needed revenue, but find no evidence for the further supposition that Congress intended to remove all barriers to profit maximization. The Secretary's letter of transmittal, even when read permissively for broad policy goals and even when read to resolve ambiguities in favor of tribal independence, supports no more. Our review of the legislation that preceded the 1938 Act provides no additional support for Cotton's expansive view of the Act's purpose. This history is relevant in that it supplies both the legislative background against which Congress enacted the 1938 Act and the relevant "backdrop" of tribal independence. Congress first authorized mineral leasing on Indian lands in 91. See Act of Feb. 28, 91, 3, 2 U.S. C. 397 (91 Act). That legislation, which empowered tribes to enter into grazing and mining leases, only applied to lands "occupied by Indians who have bought and paid for the same," and was thus interpreted to be inapplicable to Executive Order reservations. See British-American Oil Producing v. Board of of Mineral leasing on reservations created by Executive Order — like the Jicarilla Apache Reservation — was not authorized until almost four decades later. After years of debate concerning whether Indians had any right to share in royalties derived from oil and gas leases in Executive Order reservations,[12]*1 Congress finally enacted legislation in 1927 that authorized such leases. See Indian Oil Act of 1927, 44 Stat. (part 2) 1347, 2 U.S. C. 398a (1927 Act). While both the 91 and 1927 Acts were in effect, was the prevailing law and, under its expansive view of inter-governmental tax immunity, States were powerless to impose severance taxes on oil produced on Indian reservations unless Congress expressly waived that immunity. Just two years after was decided, Congress took such express action and authorized state taxation of oil and gas production in treaty reservations. See Indian Oil Leasing Act of 1924, (1924 Act), current version U.S. C. 398. See also British-American Oil Producing v. Board of More significantly for purposes of this case, when Congress first authorized oil and gas leasing on Executive Order reservations in the 1927 Act, it expressly waived immunity from state taxation of oil and gas lessees operating in those reservations. See 44 Stat. (part 2) 1347, 2 U.S. C. 398c. Thus, at least as to Executive Order reservations, state taxation of nonmember oil and gas lessees was the norm from the very start. There is, accordingly, simply no history of tribal independence from state taxation of these lessees to form a "backdrop" against which the 1938 Act must be read. We are also unconvinced that the contrast between the 1927 Act's express waiver of immunity and the 1938 Act's silence on the subject suggests that Congress intended to repeal the waiver in the 1938 Act and thus to diametrically change course by implicitly barring state taxation. The general repealer clause contained in the 1938 Act provides that "[a]ll Act[s] or parts of Acts inconsistent herewith are hereby repealed." Although one might infer from this clause that all preceding, nonconflicting legislation in the area, like the 1927 Act's waiver provision, is implicitly incorporated, we need not go so far to simply conclude that the 1938 Act's omission demonstrates no congressional purpose to close the door to state taxation. Moreover, the contrast between the 1927 and 1938 Acts is easily explained by the contemporaneous history of the doctrine of intergovernmental tax immunity. In 1927, prevailed, and States were only permitted to tax lessees of Indian lands if Congress expressly so provided. By the time the 1938 Act was enacted, however, had been overruled and replaced by the modern rule permitting such taxes absent congressional disapproval.[13] Thus, Congress' approaches to both the *3 1927 and 1938 Acts were fully consistent with an intent to permit state taxation of nonmember lessees.[14] Cotton nonetheless maintains that our decisions in White Mountain Apache and Ramah Navajo School compel the conclusion that the New Mexico taxes are pre-empted by federal law. In pressing this argument, Cotton ignores the admonition included in both of those decisions that the relevant pre-emption test is a flexible one sensitive to the particular state, federal, and tribal interests involved. See at ; at In we addressed the question whether Arizona could impose its motor carrier license and use fuel taxes on a nonmember logging company's use of roads located solely within an Indian reservation. Significantly, the roads at issue were "built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors," 448 U.S., 0, and the State was "unable to identify any regulatory function or service [it] performed that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation," See also 4 ("The State has no interest in raising revenues from the use of Indian roads that cost it nothing and over which it exercises no control"). Moreover, it was undisputed in that the economic burden of the taxes ultimately fell on the Tribe. 1. Based on these facts and on our conclusion that collection of the taxes would undermine federal policy "in a context in which the Federal Government has undertaken to regulate the most minute details" of the Tribe's timber operations, we held that the taxes were pre-empted. Ramah Navajo School involved a similar factual scenario. In the late 190's, New Mexico closed the only public high school that served the Ramah Navajo children. The State then sought to tax two nonmember construction firms hired by the Tribe to build a school in the reservation. As in the State asserted no legitimate regulatory interest that might justify the tax. Ramah Navajo School Also as in the economic burden of the tax ultimately fell on the Tribe. And finally, again * as in we noted that federal law imposed a comprehensive regulatory scheme. Ramah Navajo School -842. We concluded: "Having declined to take any responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education — a scheme which has `left the State with no duties or responsibilities.' " ). The factual findings of the New Mexico District Court clearly distinguish this case from both and Ramah Navajo School After conducting a trial, that court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton," costing the State approximately $3 million per year. App. to Juris. Statement 1. Indeed, Cotton concedes that from 1981 through 1 New Mexico provided its operations with services costing $89,384, but argues that the cost of these services is disproportionate to the $2,293,93 in taxes the State collected from Cotton. Brief for Appellants 13-14. Neither nor Ramah Navajo School however, imposes such a proportionality requirement on the States.[1] Rather, both cases involved complete abdication or noninvolvement of the State in the on-reservation activity. The present case is also unlike and Ramah Navajo School in that the District Court found that "[n]o economic burden falls on the tribe by virtue of the state taxes," App. to Juris. Statement 1, and that the Tribe could, in fact, increase its taxes without adversely affecting on-reservation oil and gas development, Finally, the District Court found that the * State regulates the spacing and mechanical integrity of wells located on the reservation. Thus, although the federal and tribal regulations in this case are extensive,[1] they are not exclusive, as were the regulations in and Ramah Navajo School We thus conclude that federal law, even when given the most generous construction, does not pre-empt New Mexico's oil and gas severance taxes. This is not a case in which the State has had nothing to do with the on-reservation activity, save tax it. Nor is this a case in which an unusually large state tax has imposed a substantial burden on the Tribe.[17] It is, of course, reasonable to infer that the New *7 Mexico taxes have at least a marginal effect on the demand for on-reservation leases, the value to the Tribe of those leases, and the ability of the Tribe to increase its tax rate. Any impairment to the federal policy favoring the exploitation of on-reservation oil and gas resources by Indian tribes that might be caused by these effects, however, is simply too indirect and too insubstantial to support Cotton's claim of pre-emption. To find pre-emption of state taxation in such indirect burdens on this broad congressional purpose, absent some special factor such as those present in and Ramah Navajo School would be to return to the pre-1937 doctrine of intergovernmental tax immunity.[] Any adverse effect on the Tribe's finances caused by the taxation of a private party contracting with the Tribe would be ground to strike the state tax. Absent more explicit guidance from Congress, we decline to return to this long-discarded and thoroughly repudiated doctrine. IV Cotton also argues that New Mexico's severance taxes — "insofar as they are imposed without allocation or apportionment on top of Jicarilla Apache tribal taxes" — impose "an unlawful *8 multiple tax burden on interstate commerce." Brief for Appellants 33. In support of this argument, Cotton relies on three facts: (1) that the State and the Tribe tax the same activity; (2) that the total tax burden on Cotton is higher than the burden on its off-reservation competitors who pay no tribal tax; and (3) that the state taxes generate revenues that far exceed the value of the services it provides on the reservation. As we pointed out in the see n. a multiple taxation issue may arise when more than one State attempts to tax the same activity. If a unitary business derives income from several States, each State may only tax the portion of that income that is attributable to activity within its borders.[19] See, e. g., Exxon v. Wisconsin Department of Revenue, Thus, in such a case, an apportionment formula is necessary in order to identify the scope of the taxpayer's business that is within the taxing jurisdiction of each State. In this case, however, all of Cotton's leases are located entirely within the borders of the State of New Mexico and also within the borders of the Jicarilla Apache Reservation. Indeed, they are also within the borders of the United States. There are, therefore, three different governmental entities, each of which has taxing jurisdiction over all of the non-Indian wells. Cf. *9 The federal sovereign has the undoubted power to prohibit taxation of the Tribe's lessees by the Tribe, by the State, or by both, but since it has not exercised that power, concurrent taxing jurisdiction over all of Cotton's on-reservation leases exists. Cf. Commonwealth Edison 43 U. S., at 17 Unless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases. It is, of course, true that the total taxes paid by Cotton are higher than those paid by off-reservation producers. But neither the State nor the Tribe imposes a discriminatory tax. The burdensome consequence is entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction. As we noted in the tribal tax does "not treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation." 4 U.S., 7-. Similarly, the New Mexico taxes are administered in an evenhanded manner and are imposed at a uniform rate throughout the State — both on and off the reservation. See 10 N. M., at Cotton's most persuasive argument is based on the evidence that tax payments by reservation lessees far exceed the value of services provided by the State to the lessees, or more generally, to the reservation as a whole. See n. There are, however, two sufficient reasons for rejecting this argument. First, the relevant services provided by the State include those that are available to the lessees and the members of the Tribe off the reservation as well as on it. The intangible value of citizenship in an organized society is not easily measured in dollars and cents; moreover, the District Court found that the actual per capita state expenditures for Jicarilla members are equal to or greater than *190 the per capita expenditures for non-Indian citizens. See App. to Juris. Statement 1. Second, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer — or by those living in the community where the taxpayer is located — must equal the amount of its tax obligations. See Keystone Bituminous Coal As we recently explained: "[T]here is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be reasonably related to the value of the services provided to the activity. Instead, our consistent rule has been: " `Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied. " `A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good.' Carmichael v. Southern Coal & Coke 301 U.S. 49, -23 (citations and omitted). "There is no reason to suppose that this latitude afforded the States under the Due Process Clause is somehow divested by the Commerce Clause merely because the taxed activity has some connection to interstate commerce; *191 particularly when the tax is levied on an activity conducted within the State." Commonwealth Edison at 22-23. Cotton, in effect, asks us to divest New Mexico of its normal latitude because its taxes have "some connection" to commerce with the Tribe. The connection, however, is by no means close enough. There is simply no evidence in the record that the tax has had an adverse effect on the Tribe's ability to attract oil and gas lessees. It is, of course, reasonable to infer that the existence of the state tax imposes some limit on the profitability of Indian oil and gas leases — just as it no doubt imposes a limit on the profitability of off-reservation leasing arrangements — but that is precisely the same indirect burden that we rejected as a basis for granting non-Indian contractors an immunity from state taxation in ; Oklahoma Tax 319 U.S. 98 ; Oklahoma Tax ; 42 U.S. 43 (197); and V In our order noting probable jurisdiction we invited the parties to address the question whether the Tribe should be treated as a State for the purpose of determining whether New Mexico's taxes must be apportioned. All of the Indian tribes that have filed amicus curiae briefs addressing this question — including the Jicarilla Apache Tribe — have uniformly taken the position that Indian tribes are not States within the meaning of the Commerce Clause. This position is supported by the text of the Clause itself. Article I, 8, cl. 3, provides that the "Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Thus, the Commerce Clause draws a clear distinction between "States" and "Indian *192 Tribes." As Chief Justice Marshall observed in Cherokee Pet. 1, : "The objects to which the power of regulating commerce might be directed, are divided into three distinct classes — foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct." In fact, the language of the Clause no more admits of treating Indian tribes as States than of treating foreign nations as States. See It is also well established that the Interstate Commerce and Indian Commerce Clauses have very different applications. In particular, while the Interstate Commerce Clause is concerned with maintaining free trade among the States even in the absence of implementing federal legislation, see McLeod v. J. E. Dilworth ; the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs, see 417 U.S. 3, 1-2 ; F. Cohen, Handbook of Federal Indian Law 207-208, and nn. 2, 3 and 9-11 The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause. Most notably, as our discussion of Cotton's "multiple taxation" argument demonstrates, the fact that States and tribes have concurrent jurisdiction over the same territory makes it inappropriate to apply Commerce Clause doctrine developed in the context of commerce "among" States with mutually exclusive territorial jurisdiction to trade "with" Indian tribes. Accordingly, we have no occasion to modify our comment on this question in the case: "Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it *193A treacherous to import to one notions of pre-emption that are properly applied to the other." The judgment of the New Mexico Court of Appeals is Affirmed.

Justice Marshall

dissenting

Trans World Airlines, Inc. v. Hardison

https://www.courtlistener.com/opinion/109692/trans-world-airlines-inc-v-hardison/

https://www.courtlistener.com/api/rest/v3/clusters/109692/

1976-138

One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq., has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee's religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed—Sundays, Christmas, and Easter— but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations, and in a long line of decisions. Initially the Commission concluded that an employer was "free under Title VII to establish a normal workweek . . . generally applicable to all employees," and that an employee could not "demand any alteration in [his work schedule] to accommodate his religious needs." 29 CFR §§ 1605.1 (a) (3), (b) (3) (1967). Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where "undue hardship" would result—for example, "where the employee's needed work cannot be performed *86 by another employee of substantially similar qualifications during the period of absence." 29 CFR § 1605.1 (b) (1976).[1] In amending Title VII in 1972 Congress confronted the same problem, and adopted the second position of the EEOC. Pub. L. 92-261, § 2(7), 86 Stat. 103, codified at 42 U.S. C. § 2000e (j) (1970 ed., Supp. V). Both before and after the 1972 amendment the lower courts have considered at length the circumstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results, ante, at 75 n. 10. And on two occasions this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Parker Seal Co. v. Cummins, 429 U.S. 65 (1976); Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971). Today's decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not *87 really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today's result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent. I With respect to each of the proposed accommodations to respondent Hardison's religious observances that the Court discusses, it ultimately notes that the accommodation would have required "unequal treatment," ante, at 81, 84-85, in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with "sound and fury," ultimately "signif[y] nothing." The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules.[2] What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each *88 instance, the question is whether the employee is to be exempt from the rule's demands. To do so will always result in a privilege being "allocated according to religious beliefs," ante, at 85, unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless "undue hardship" would result. The point is perhaps best made by considering a not altogether hypothetical example. See CCH EEOC Decisions (1973) ¶ 6180. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship—or any hardship at all. Yet as I understand the Court's analysis—and nothing in the Court's response, ante, at 83 n. 14, 84 n. 15, is to the contrary—the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute. In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments to Title VII which is briefly recounted in the Court's opinion, ante, at 73-75 That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. Dewey v. Reynolds Metals Co., 429 F.2d 324 (CA6 1970), *89 aff'd by equally divided Court, 402 U.S. 689 (1971); Riley v. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev'd, 464 F.2d 1113 (CA5 1972). These courts reasoned, in language strikingly similar to today's decision, that to excuse religious observers from neutral work rules would "discriminate against . . . other employees" and "constitute unequal administration of the collective-bargaining agreement." Dewey v. Reynolds Metals Co., supra, at 330. They therefore refused to equate "religious discrimination with failure to accommodate." 429 F.2d, at 335. When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed the Congress of these decisions which, he said, had "clouded" the meaning of religious discrimination. 118 Cong. Rec. 706 (1972). He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse "to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days." Id., at 705. His amendment was unanimously approved by the Senate on a roll-call vote, id., at 731, and was accepted by the Conference Committee, H. R. Rep. No. 92-899, p. 15 (1972); S. Rep. No. 92-681, p. 15 (1972), whose report was approved by both Houses, 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent. The Court's interpretation of the statute, by effectively nullifying it, has the singular advantage of making consideration of petitioners' constitutional challenge unnecessary. The Court does not even rationalize its construction on this ground, however, nor could it, since "resort to an alternative construction to avoid deciding a constitutional question is appropriate *90 only when such a course is `fairly possible' or when the statute provides a `fair alternative' construction." Swain v. Pressley, 430 U.S. 372, 378 n. 11 (1977). Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employees) to incur substantial costs to aid the religious observer,[3] not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties, e. g., Wisconsin v. Yoder, 406 U.S. 205, 234-235, n. 22 (1972); Sherbert v. Verner, 374 U.S. 398, 409 (1963); Zorach v. Clauson, 343 U.S. 306 (1952), even when the exemption was in no way compelled by the Free Exercise Clause, e. g., Gillette v. United States, 401 U.S. 437 (1971); Welsh v. United States, 398 U.S. 333, 371-372 (1970) (WHITE, J., dissenting); Sherbert v. Verner, supra, at 422 (Harlan, J., dissenting); Braunfeld v. Brown, 366 U.S. 599, 608 (1961) (dictum); McGowan v. Maryland, 366 U.S. 420, 520 (1961) (opinion of Frankfurter, J.).[4] If the State does not establish *91 religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does—and, consistently with the First Amendment, can—require employers to grant privileges to religious observers as part of the accommodation process. II Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA's business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent's Sabbath observance was that it "held several meetings with [respondent] . . . [and] authorized the union steward to search for someone who would swap shifts." 375 F. Supp. 877, 890-891 (WD Mo. 1974). To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense. The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during *92 respondent's Sabbath shift.[5] Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, ante, at 80-81, or because "more than a de minimis cost," ante, at 84, would have been imposed on TWA. But the Court's myopic view of the available options is not supported by either the District Court's findings or the evidence adduced at trial. Thus, the Court's conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.[6] *93 To begin with, the record simply does not support the Court's assertion, made without accompanying citations, that "[t]here were no volunteers to relieve Hardison on Saturdays," ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136,[7] and the union stipulated that its steward had not done so either, id., at 158.[8] Thus, contrary to the Court's assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substituted *94 for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months[9] or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent's Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the "graveyard" shift) was dissatisfied with his hours. Id., at 70. Thus, respondent's religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights[10] and without *95 imposing significant costs on TWA. Of course, it is also possible that no trade—or none consistent with the seniority system—could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR § 1605.1 (c) (1976). Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden. Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent —assuming that someone would have been willing to work Saturdays for premium pay—and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer—and the total number of overtime hours available for other employees—would not have reflected Hardison's Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.[11] Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from transferring *96 departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.[12] Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered "undue hardship" to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.[13] What makes today's decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for *97 worshiping their God.[14] The ultimate tragedy is that despite Congress' best efforts, one of this Nation's pillars of strength— our hospitality to religious diversity—has been seriously eroded. All Americans will be a little poorer until today's decision is erased. I respectfully dissent.

One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e et seq., has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee's religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed—Sundays, Christmas, and Easter— but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations, and in a long line of decisions. Initially the Commission concluded that an employer was "free under Title VII to establish a normal workweek generally applicable to all employees," and that an employee could not "demand any alteration in [his work schedule] to accommodate his religious needs." 29 CFR 1605.1 (3), (3) (1967). Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where "undue hardship" would result—for example, "where the employee's needed work cannot be performed *86 by another employee of substantially similar qualifications during the period of absence." 29 CFR 1605.1[1] In amending Title VII in Congress confronted the same problem, and adopted the second position of the EEOC. Pub. L. 92-261, 2(7), codified at 42 U.S. C. 2000e (j) ( ed., Supp. V). Both before and after the amendment the lower courts have considered at length the circumstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results, ante, at 75 n. 10. And on two occasions this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Parker Seal ; Today's decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not *87 really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today's result is intolerable, for the Court adopts the very position that Congress expressly rejected in as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent. I With respect to each of the proposed accommodations to respondent Hardison's religious observances that the Court discusses, it ultimately notes that the accommodation would have required "unequal treatment," ante, at 81, 84-85, in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with "sound and fury," ultimately "signif[y] nothing." The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules.[2] What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each *88 instance, the question is whether the employee is to be exempt from the rule's demands. To do so will always result in a privilege being "allocated according to religious beliefs," ante, at 85, unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless "undue hardship" would result. The point is perhaps best made by considering a not altogether hypothetical example. See CCH EEOC Decisions (1973) ¶ 6180. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship—or any hardship at all. Yet as I understand the Court's analysis—and nothing in the Court's response, ante, at 83 n. 14, 84 n. 15, is to the contrary—the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute. In reaching this result, the Court seems almost oblivious of the legislative history of the amendments to Title VII which is briefly recounted in the Court's opinion, ante, at 73-75 That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. *89 aff'd by equally divided Court, ; rev'd, These courts reasoned, in language strikingly similar to today's decision, that to excuse religious observers from neutral work rules would "discriminate against other employees" and "constitute unequal administration of the collective-bargaining agreement." They therefore refused to equate "religious discrimination with failure to accommodate." When Congress was reviewing Title VII in Senator Jennings Randolph informed the Congress of these decisions which, he said, had "clouded" the meaning of religious discrimination. 118 Cong. Rec. 706 He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse "to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days." His amendment was unanimously approved by the Senate on a roll-call vote, and was accepted by the Conference Committee, H. R. Rep. No. 92-899, p. 15 ; S. Rep. No. 92-681, p. 15 whose report was approved by both Houses, 118 Cong. Rec. 7169, 7573 Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent. The Court's interpretation of the statute, by effectively nullifying it, has the singular advantage of making consideration of petitioners' constitutional challenge unnecessary. The Court does not even rationalize its construction on this ground, however, nor could it, since "resort to an alternative construction to avoid deciding a constitutional question is appropriate *90 only when such a course is `fairly possible' or when the statute provides a `fair alternative' construction." Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employees) to incur substantial costs to aid the religious observer,[3] not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties, e. g., ; ; even when the exemption was in no way compelled by the Free Exercise Clause, e. g., ; ; ; ;[4] If the State does not establish *91 religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does—and, consistently with the First Amendment, can—require employers to grant privileges to religious observers as part of the accommodation process. II Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA's business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent's Sabbath observance was that it "held several meetings with [respondent] [and] authorized the union steward to search for someone who would swap shifts." To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense. The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during *92 respondent's Sabbath shift.[5] Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, ante, at 80-81, or because "more than a de minimis cost," ante, at 84, would have been imposed on TWA. But the Court's myopic view of the available options is not supported by either the District Court's findings or the evidence adduced at trial. Thus, the Court's conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.[6] *93 To begin with, the record simply does not support the Court's assertion, made without accompanying citations, that "[t]here were no volunteers to relieve Hardison on Saturdays," ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136,[7] and the union stipulated that its steward had not done so either,[8] Thus, contrary to the Court's assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substituted *94 for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months[9] or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent's Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the "graveyard" shift) was dissatisfied with his hours. Thus, respondent's religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights[10] and without *95 imposing significant costs on TWA. Of course, it is also possible that no trade—or none consistent with the seniority system—could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR 1605.1 Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden. Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent —assuming that someone would have been willing to work Saturdays for premium pay—and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer—and the total number of overtime hours available for other employees—would not have reflected Hardison's Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.[11] Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from transferring *96 departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.[12] Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered "undue hardship" to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.[13] What makes today's decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for *97 worshiping their God.[14] The ultimate tragedy is that despite Congress' best efforts, one of this Nation's pillars of strength— our hospitality to religious diversity—has been seriously eroded. All Americans will be a little poorer until today's decision is erased. I respectfully dissent.

per_curiam

per_curiam

Califano v. Torres

https://www.courtlistener.com/opinion/109805/califano-v-torres/

https://www.courtlistener.com/api/rest/v3/clusters/109805/

1977-040

Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these *2 cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed.[1] I One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 86 Stat. 1465, 42 U.S. C. § 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 49 Stat. 620, 42 U.S. C. § 301 et seq.; Aid to the Blind, 49 Stat. 645, 42 U.S. C. § 1201 et seq.; Aid to the Disabled, 64 Stat. 555, 42 U.S. C. § 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U.S. C. § 1381 et seq. The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611 (f) of the Act, as set forth in 42 U.S. C. § 1382 (f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines "the United States" as "the 50 States and the District of Columbia." § 1614 (e), as set forth in 42 U.S. C. § 1382c (e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs.[2] Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved *3 to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico.[3] Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held §§ 1611 (f) and 1614 (e) unconstitutional as applied to Torres. Torres v. Mathews, 426 F. Supp. 1106.[4] Soon after that decision appellees Colon and Vega also sued in the Puerto Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico.[5] *4 II In Shapiro v. Thompson, 394 U.S. 618 (1969), and Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, "the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents." Id., at 261. In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now.[6] Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each *5 State under our Constitution to enact laws uniformly applicable to all of its residents. If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute "is entitled to a strong presumption of constitutionality." Mathews v. De Castro, 429 U.S. 181, 185 (1976). "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." Jefferson v. Hackney, 406 U.S. 535, 546 (1972). See also Califano v. Jobst, 434 U.S. 47, 53-54; Califano v. Goldfarb, 430 U.S. 199, 210 (1977); Helvering v. Davis, 301 U.S. 619, 640 (1937).[7] The judgments are reversed. So ordered. MR. JUSTICE BRENNAN would affirm. MR. JUSTICE MARSHALL would note probable jurisdiction and set these cases for oral argument.

Certain benefits under the Social Security Act, as amended in 1972, are payable only to residents of the United States, defined as the 50 States and the District of Columbia. The District Court for the District of Puerto Rico held in these *2 cases that this geographic limitation is unconstitutional as applied to persons who upon moving to Puerto Rico lost the benefits to which they were entitled while residing in the United States. The Secretary of Health, Education, and Welfare, responsible for the administration of the Social Security Act, has appealed.[1] I One of the 1972 amendments to the Social Security Act created a uniform program, known as the Supplemental Security Income (SSI) program, for aid to qualified aged, blind, and disabled persons. 42 U.S. C. 1381 et seq. (1970 ed., Supp. V). This federally administered program replaced the federal-state programs of Old Age Assistance, 42 U.S. C. 301 et seq.; Aid to the Blind, 42 U.S. C. 1201 et seq.; Aid to the Disabled, 42 U.S. C. 1351 et seq.; and Aid to the Aged, Blind, and Disabled, 42 U.S. C. 1381 et seq. The exclusion of Puerto Rico in the amended program is apparent in the definitional section. Section 1611 (f) of the Act, as set forth in 42 U.S. C. 1382 (f) (1970 ed., Supp. V), states that no individual is eligible for benefits during any month in which he or she is outside the United States. The Act defines "the United States" as "the 50 States and the District of Columbia." 1614 (e), as set forth in 42 U.S. C. 1382c (e) (1970 ed., Supp. V). The repeal of the pre-existing programs did not apply to Puerto Rico. Thus persons in Puerto Rico are not eligible to receive SSI benefits, but are eligible to receive benefits under the pre-existing programs.[2] Appellee Torres received SSI benefits while residing in Connecticut; the benefits were discontinued when he moved *3 to Puerto Rico. Similarly, appellees Colon and Vega received benefits as residents of Massachusetts and New Jersey, respectively, but lost them on moving to Puerto Rico.[3] Torres filed a complaint in the District Court of Puerto Rico claiming that the exclusion of Puerto Rico from the SSI program was unconstitutional, and a three-judge court was convened to adjudicate the suit. Viewing the geographic limitations in the law as an interference with the constitutional right of residents of the 50 States and the District of Columbia to travel, the court searched for a compelling governmental interest to justify such interference. Finding none, the court held 1611 (f) and 1614 (e) unconstitutional as applied to Torres.[4] Soon after that decision appellees Colon and Vega also sued in the Puerto Rico District Court. Relying on the Torres decision, a single judge enjoined the Social Security Administration from discontinuing their SSI benefits on the basis of their change of residency to Puerto Rico.[5] *4 II In and Memorial this Court held that laws prohibiting newly arrived residents in a State or county from receiving the same vital benefits as other residents unconstitutionally burdened the right of interstate travel. As the Court said in Memorial Hospital, "the right of interstate travel must be seen as insuring new residents the same right to vital governmental benefits and privileges in the States to which they migrate as are enjoyed by other residents." In the present cases the District Court altogether transposed that proposition. It held that the Constitution requires that a person who travels to Puerto Rico must be given benefits superior to those enjoyed by other residents of Puerto Rico if the newcomer enjoyed those benefits in the State from which he came. This Court has never held that the constitutional right to travel embraces any such doctrine, and we decline to do so now.[6] Such a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any persons who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each *5 State under our Constitution to enact laws uniformly applicable to all of its residents. If there ever could be a case where a person who has moved from one State to another might be entitled to invoke the law of the State from which he came as a corollary of his constitutional right to travel, this is surely not it. For we deal here with a constitutional attack upon a law providing for governmental payments of monetary benefits. Such a statute "is entitled to a strong presumption of constitutionality." "So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket." See also ;[7] The judgments are reversed. So ordered. MR. JUSTICE BRENNAN would affirm. MR. JUSTICE MARSHALL would note probable jurisdiction and set these cases for oral argument.

Justice Thomas

majority

Walden v. Fiore

https://www.courtlistener.com/opinion/2654532/walden-v-fiore/

https://www.courtlistener.com/api/rest/v3/clusters/2654532/

2013-021

This case asks us to decide whether a court in Nevada may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Geor- gia would delay the return of funds to plaintiffs with connections to Nevada. Because the defendant had no other contacts with Nevada, and because a plaintiff ’s con- tacts with the forum State cannot be “decisive in deter- mining whether the defendant’s due process rights are violated,” Rush v. Savchuk, 444 U.S. 320, 332 (1980), we hold that the court in Nevada may not exercise personal jurisdiction under these circumstances. I Petitioner Anthony Walden serves as a police officer for the city of Covington, Georgia. In August 2006, petitioner was working at the Atlanta Hartsfield-Jackson Airport as a deputized agent of the Drug Enforcement Administra- tion (DEA). As part of a task force, petitioner conducted investigative stops and other law enforcement functions in support of the DEA’s airport drug interdiction program. On August 8, 2006, Transportation Security Admin- 2 WALDEN v. FIORE Opinion of the Court istration agents searched respondents Gina Fiore and Keith Gipson and their carry-on bags at the San Juan airport in Puerto Rico. They found almost $97,000 in cash. Fiore explained to DEA agents in San Juan that she and Gipson had been gambling at a casino known as the El San Juan, and that they had residences in both Cali- fornia and Nevada (though they provided only California identification). After respondents were cleared for depar- ture, a law enforcement official at the San Juan airport notified petitioner’s task force in Atlanta that respondents had boarded a plane for Atlanta, where they planned to catch a connecting flight to Las Vegas, Nevada. When respondents arrived in Atlanta, petitioner and another DEA agent approached them at the departure gate for their flight to Las Vegas. In response to petition- er’s questioning, Fiore explained that she and Gipson were professional gamblers. Respondents maintained that the cash they were carrying was their gambling “ ‘bank’ ” and winnings. App. 15, 24. After using a drug-sniffing dog to perform a sniff test, petitioner seized the cash.1 Petitioner advised respondents that their funds would be returned if they later proved a legitimate source for the cash. Re- spondents then boarded their plane. After respondents departed, petitioner moved the cash to a secure location and the matter was forwarded to DEA headquarters. The next day, petitioner received a phone call from respondents’ attorney in Nevada seeking return of the funds. On two occasions over the next month, peti- tioner also received documentation from the attorney regarding the legitimacy of the funds. At some point after petitioner seized the cash, he helped draft an affidavit to show probable cause for forfeiture of —————— 1 Respondents allege that the sniff test was “at best, inconclusive,” and there is no indication in the pleadings that drugs or drug residue were ever found on or with the cash. App. 21. Cite as: 571 U. S. ____ (2014) 3 Opinion of the Court the funds and forwarded that affidavit to a United States Attorney’s Office in Georgia.2 According to respondents, the affidavit was false and misleading because petitioner misrepresented the encounter at the airport and omitted exculpatory information regarding the lack of drug evi- dence and the legitimate source of the funds. In the end, no forfeiture complaint was filed, and the DEA returned the funds to respondents in March 2007. Respondents filed suit against petitioner in the United States District Court for the District of Nevada, seeking money damages under Bivens v. Six Unknown Fed. Nar- cotics Agents, 403 U.S. 388 (1971). Respondents alleged that petitioner violated their Fourth Amendment rights by (1) seizing the cash without probable cause; (2) keeping the money after concluding it did not come from drug- related activity; (3) drafting and forwarding a probable cause affidavit to support a forfeiture action while know- ing the affidavit contained false statements; (4) willfully seeking forfeiture while withholding exculpatory informa- tion; and (5) withholding that exculpatory information from the United States Attorney’s Office. The District Court granted petitioner’s motion to dis- miss. Relying on this Court’s decision in Calder v. Jones, 465 U.S. 783 (1984), the court determined that petition- er’s search of respondents and his seizure of the cash in Georgia did not establish a basis to exercise personal jurisdiction in Nevada. The court concluded that even if petitioner caused harm to respondents in Nevada while knowing they lived in Nevada, that fact alone did not confer jurisdiction. Because the court dismissed the com- plaint for lack of personal jurisdiction, it did not determine —————— 2 The alleged affidavit is not in the record. Because this case comes to us at the motion-to-dismiss stage, we take respondents’ factual allega- tions as true, including their allegations regarding the existence and content of the affidavit. 4 WALDEN v. FIORE Opinion of the Court whether venue was proper. On appeal, a divided panel of the United States Court of Appeals for the Ninth Circuit reversed. The Court of Appeals assumed the District Court had correctly deter- mined that petitioner’s search and seizure in Georgia could not support exercise of jurisdiction in Nevada. The court held, however, that the District Court could properly exercise jurisdiction over “the false probable cause affida- vit aspect of the case.” 688 F.3d 558, 577 (2011). Accord- ing to the Court of Appeals, petitioner “expressly aimed” his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a “significant connection” to Nevada.3 Id., at 581. After determining that the delay in returning the funds to respondents caused them “foreseeable harm” in Nevada and that the exercise of personal jurisdiction over petitioner was otherwise reasonable, the court found the District Court’s exercise of personal jurisdiction to be proper.4 Id., at 582, 585. The Ninth Circuit denied re- hearing en banc, with eight judges, in two separate opin- ions, dissenting. Id., at 562, 568. We granted certiorari to decide whether due process permits a Nevada court to exercise jurisdiction over peti- tioner. 568 U. S. ___ (2013). We hold that it does not and —————— 3 The allegations in the complaint suggested to the Court of Appeals that petitioner “definitely knew, at some point after the seizure but before providing the alleged false probable cause affidavit, that [re- spondents] had a significant connection to Nevada.” 688 F.3d, at 578. 4 Judge Ikuta dissented. In her view, the “false affidavit/forfeiture proceeding aspect” over which the majority found jurisdiction proper was not raised as a separate claim in the complaint, and she found it “doubtful that such a constitutional tort even exists.” Id., at 593. After the court denied rehearing en banc, the majority explained in a post- script that it viewed the filing of the false affidavit, which effected a “continued seizure” of the funds, as a separate Fourth Amendment violation. Id., at 588–589. Petitioner does not dispute that reading here. Cite as: 571 U. S. ____ (2014) 5 Opinion of the Court therefore reverse.5 II A “Federal courts ordinarily follow state law in determin- ing the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 6). This is because a federal district court’s authority to assert personal jurisdiction in most cases is linked to service of process on a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed. Rule of Civ. Proc. 4(k)(1)(A). Here, Nevada has authorized its courts to exercise juris- diction over persons “on any basis not inconsistent with . . . the Constitution of the United States.” Nev. Rev. Stat. §14.065 (2011). Thus, in order to determine whether the Federal District Court in this case was authorized to exercise jurisdiction over petitioner, we ask whether the exercise of jurisdiction “comports with the limits imposed by federal due process” on the State of Nevada. Daimler, supra, at ___ (slip op., at 6). B 1 The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have “certain minimum con- tacts . . . such that the maintenance of the suit does not —————— 5 We also granted certiorari on the question whether Nevada is a proper venue for the suit under 28 U.S. C. §1391(b)(2). Because we resolve the case on jurisdictional grounds, we do not decide whether venue was proper in Nevada. 6 WALDEN v. FIORE Opinion of the Court offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This case addresses the “minimum contacts” necessary to create specific jurisdiction.6 The inquiry whether a forum State may assert specific jurisdiction over a nonres- ident defendant “focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Keeton v. Hus- tler Magazine, Inc., 465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State. Two related aspects of this necessary relationship are relevant in this case. First, the relationship must arise out of contacts that the “defendant himself ” creates with the forum State. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defend- ant—not the convenience of plaintiffs or third parties. See World-Wide Volkswagen Corp., supra, at 291–292. We have consistently rejected attempts to satisfy the defendant- focused “minimum contacts” inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 417 (1984) (“[The] unilateral —————— 6 “Specific” or “case-linked” jurisdiction “depends on an ‘affiliatio[n] between the forum and the underlying controversy’ ” (i.e., an “activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation”). Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___, ___ (2011) (slip op., at 2). This is in contrast to “general” or “all purpose” jurisdiction, which permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit (e.g., domicile). Respondents rely on specific jurisdiction only. Cite as: 571 U. S. ____ (2014) 7 Opinion of the Court activity of another party or a third person is not an appro- priate consideration when determining whether a defend- ant has sufficient contacts with a forum State to justify an assertion of jurisdiction”). We have thus rejected a plain- tiff ’s argument that a Florida court could exercise per- sonal jurisdiction over a trustee in Delaware based solely on the contacts of the trust’s settlor, who was domiciled in Florida and had executed powers of appointment there. Hanson v. Denckla, 357 U.S. 235, 253–254 (1958). We have likewise held that Oklahoma courts could not exer- cise personal jurisdiction over an automobile distributor that supplies New York, New Jersey, and Connecticut dealers based only on an automobile purchaser’s act of driving it on Oklahoma highways. World-Wide Volks- wagen Corp., supra, at 298. Put simply, however sig- nificant the plaintiff ’s contacts with the forum may be, those contacts cannot be “decisive in determining whether the defendant’s due process rights are violated.” Rush, 444 U.S., at 332. Second, our “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. See, e.g., International Shoe, supra, at 319 (Due process “does not contemplate that a state may make binding a judg- ment in personam against an individual . . . with which the state has no contacts, ties, or relations”); Hanson, supra, at 251 (“However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him”). Accordingly, we have upheld the assertion of juris- diction over defendants who have purposefully “reach[ed] out beyond” their State and into another by, for example, entering a contractual relationship that “envisioned con- tinuing and wide-reaching contacts” in the forum State, Burger King, supra, at 479–480, or by circulating maga- 8 WALDEN v. FIORE Opinion of the Court zines to “deliberately exploi[t]” a market in the forum State, Keeton, supra, at 781. And although physical pres- ence in the forum is not a prerequisite to jurisdiction, Burger King, supra, at 476, physical entry into the State— either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact. See, e.g., Keeton, supra, at 773–774. But the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him. See Burger King, supra, at 478 (“If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot”); Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U.S. 84, 93 (1978) (declining to “find personal jurisdiction in a State . . . merely because [the plaintiff in a child support action] was residing there”). To be sure, a defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties. But a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. See Rush, supra, at 332 (“Naturally, the parties’ relation- ships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction”). Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the “random, fortuitous, or attenuated” contacts he makes by interacting with other persons affiliated with the State. Burger King, 471 U.S., at 475 (internal quota- tion marks omitted). Cite as: 571 U. S. ____ (2014) 9 Opinion of the Court 2 These same principles apply when intentional torts are involved. In that context, it is likewise insufficient to rely on a defendant’s “random, fortuitous, or attenuated con- tacts” or on the “unilateral activity” of a plaintiff. Ibid. (same). A forum State’s exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on inten- tional conduct by the defendant that creates the necessary contacts with the forum. Calder v. Jones, 465 U.S. 783, illustrates the applica- tion of these principles. In Calder, a California actress brought a libel suit in California state court against a reporter and an editor, both of whom worked for the Na- tional Enquirer at its headquarters in Florida. The plain- tiff ’s libel claims were based on an article written and edited by the defendants in Florida for publication in the National Enquirer, a national weekly newspaper with a California circulation of roughly 600,000. We held that California’s assertion of jurisdiction over the defendants was consistent with due process. Although we recognized that the defendants’ activities “focus[ed]” on the plaintiff, our jurisdictional inquiry “focuse[d] on ‘the relationship among the defendant, the forum, and the litigation.’ ” Id., at 788 (quoting Shaffer, 433 U.S., at 204). Specifically, we examined the various contacts the defend- ants had created with California (and not just with the plaintiff) by writing the allegedly libelous story. We found those forum contacts to be ample: The defend- ants relied on phone calls to “California sources” for the information in their article; they wrote the story about the plaintiff ’s activities in California; they caused reputa- tional injury in California by writing an allegedly libelous article that was widely circulated in the State; and the “brunt” of that injury was suffered by the plaintiff in that State. 465 U.S., at 788–789. “In sum, California [wa]s the focal point both of the story and of the harm suffered.” 10 WALDEN v. FIORE Opinion of the Court Id., at 789. Jurisdiction over the defendants was “there- fore proper in California based on the ‘effects’ of their Florida conduct in California.” Ibid. The crux of Calder was that the reputation-based “ef- fects” of the alleged libel connected the defendants to California, not just to the plaintiff. The strength of that connection was largely a function of the nature of the libel tort. However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons. See Restate- ment (Second) of Torts §577, Comment b (1976); see also ibid. (“[R]eputation is the estimation in which one’s char- acter is held by his neighbors or associates”). Accordingly, the reputational injury caused by the defendants’ story would not have occurred but for the fact that the defend- ants wrote an article for publication in California that was read by a large number of California citizens. Indeed, because publication to third persons is a necessary ele- ment of libel, see id., §558, the defendants’ intentional tort actually occurred in California. Keeton, 465 U.S., at 777 (“The tort of libel is generally held to occur wherever the offending material is circulated”). In this way, the “ef- fects” caused by the defendants’ article—i.e., the injury to the plaintiff ’s reputation in the estimation of the Califor- nia public—connected the defendants’ conduct to Califor- nia, not just to a plaintiff who lived there. That connec- tion, combined with the various facts that gave the article a California focus, sufficed to authorize the California court’s exercise of jurisdiction.7 —————— 7 The defendants in Calder argued that no contacts they had with California were sufficiently purposeful because their employer was responsible for circulation of the article. See Calder v. Jones, 465 U.S. 783, 789 (1984). We rejected that argument. Even though the defend- ants did not circulate the article themselves, they “expressly aimed” “their intentional, and allegedly tortious, actions” at California be- cause they knew the National Enquirer “ha[d] its largest circulation” in Cite as: 571 U. S. ____ (2014) 11 Opinion of the Court III Applying the foregoing principles, we conclude that petitioner lacks the “minimal contacts” with Nevada that are a prerequisite to the exercise of jurisdiction over him. Hanson, 357 U.S., at 251. It is undisputed that no part of petitioner’s course of conduct occurred in Nevada. Peti- tioner approached, questioned, and searched respondents, and seized the cash at issue, in the Atlanta airport. It is alleged that petitioner later helped draft a “false probable cause affidavit” in Georgia and forwarded that affidavit to a United States Attorney’s Office in Georgia to support a potential action for forfeiture of the seized funds. 688 F.3d, at 563. Petitioner never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada. In short, when viewed through the proper lens—whether the defendant’s actions connect him to the forum—petitioner formed no jurisdictionally rele- vant contacts with Nevada. The Court of Appeals reached a contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents. See Rush, 444 U.S., at 332. Rather than assessing petitioner’s own contacts with Nevada, the Court of Appeals looked to petitioner’s knowledge of respondents’ “strong forum connections.” 688 F.3d, at 577–579, 581. In the court’s view, that knowledge, combined with its conclusion that respondents suffered foreseeable harm in Nevada, satis- fied the “minimum contacts” inquiry.8 Id., at 582. This approach to the “minimum contacts” analysis —————— California, and that the article would “have a potentially devastating impact” there. Id., at 789–790. 8 Respondents propose a substantially similar analysis. They suggest that “a defendant creates sufficient minimum contacts with a forum when he (1) intentionally targets (2) a known resident of the forum (3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the forum state.” Brief for Respondents 26–27. 12 WALDEN v. FIORE Opinion of the Court impermissibly allows a plaintiff ’s contacts with the de- fendant and forum to drive the jurisdictional analysis. Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada con- nections. Such reasoning improperly attributes a plain- tiff ’s forum connections to the defendant and makes those connections “decisive” in the jurisdictional analysis. See Rush, supra, at 332. It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself. Relying on Calder, respondents emphasize that they suffered the “injury” caused by petitioner’s allegedly tor- tious conduct (i.e., the delayed return of their gambling funds) while they were residing in the forum. Brief for Respondents 14. This emphasis is likewise misplaced. As previously noted, Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State. The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way. Respondents’ claimed injury does not evince a connec- tion between petitioner and Nevada. Even if we consider the continuation of the seizure in Georgia to be a distinct injury, it is not the sort of effect that is tethered to Nevada in any meaningful way. Respondents (and only respond- ents) lacked access to their funds in Nevada not because anything independently occurred there, but because Ne- vada is where respondents chose to be at a time when they desired to use the funds seized by petitioner. Respondents would have experienced this same lack of access in Cali- fornia, Mississippi, or wherever else they might have traveled and found themselves wanting more money than Cite as: 571 U. S. ____ (2014) 13 Opinion of the Court they had. Unlike the broad publication of the forum- focused story in Calder, the effects of petitioner’s con- duct on respondents are not connected to the forum State in a way that makes those effects a proper basis for jurisdiction.9 The Court of Appeals pointed to other possible contacts with Nevada, each ultimately unavailing. Respondents’ Nevada attorney contacted petitioner in Georgia, but that is precisely the sort of “unilateral activity” of a third party that “cannot satisfy the requirement of contact with the forum State.” Hanson, 357 U.S., at 253. Respondents allege that some of the cash seized in Georgia “originated” in Nevada, but that attenuated connection was not created by petitioner, and the cash was in Georgia, not Nevada, when petitioner seized it. Finally, the funds were eventu- ally returned to respondents in Nevada, but petitioner had nothing to do with that return (indeed, it seems likely that it was respondents’ unilateral decision to have their funds sent to Nevada). * * * Well-established principles of personal jurisdiction are sufficient to decide this case. The proper focus of the —————— 9 Respondents warn that if we decide petitioner lacks minimum con- tacts in this case, it will bring about unfairness in cases where inten- tional torts are committed via the Internet or other electronic means (e.g., fraudulent access of financial accounts or “phishing” schemes). As an initial matter, we reiterate that the “minimum contacts” inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff. World-Wide Volkswagen Corp. v. Woodson, 444 U. S., 286, 291–292 (1980). In any event, this case does not present the very different questions whether and how a defendant’s virtual “presence” and conduct translate into “contacts” with a particular State. To the contrary, there is no question where the conduct giving rise to this litigation took place: Petitioner seized physical cash from respondents in the Atlanta airport, and he later drafted and forwarded an affidavit in Georgia. We leave questions about virtual contacts for another day. 14 WALDEN v. FIORE Opinion of the Court “minimum contacts” inquiry in intentional-tort cases is “ ‘the relationship among the defendant, the forum, and the litigation.’ ” Calder, 465 U.S., at 788. And it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State. In this case, the application of those principles is clear: Petitioner’s rele- vant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdic- tion. We therefore reverse the judgment of the Court of Appeals. It is so ordered

This case asks us to decide whether a court in Nevada may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Geor- gia would delay the return of funds to plaintiffs with connections to Nevada. Because the defendant had no other contacts with Nevada, and because a plaintiff ’s con- tacts with the forum State cannot be “decisive in deter- mining whether the defendant’s due process rights are violated,” we hold that the court in Nevada may not exercise personal jurisdiction under these circumstances. I Petitioner Anthony Walden serves as a police officer for the city of Covington, Georgia. In August 2006, petitioner was working at the Atlanta Hartsfield-Jackson Airport as a deputized agent of the Drug Enforcement Administra- tion (DEA). As part of a task force, petitioner conducted investigative stops and other law enforcement functions in support of the DEA’s airport drug interdiction program. On August 8, 2006, Transportation Security Admin- 2 WALDEN v. FIORE Opinion of the Court istration agents searched respondents Gina Fiore and Keith Gipson and their carry-on bags at the San Juan airport in Puerto Rico. They found almost $97,000 in cash. Fiore explained to DEA agents in San Juan that she and Gipson had been gambling at a casino known as the El San Juan, and that they had residences in both Cali- fornia and Nevada (though they provided only California identification). After respondents were cleared for depar- ture, a law enforcement official at the San Juan airport notified petitioner’s task force in Atlanta that respondents had boarded a plane for Atlanta, where they planned to catch a connecting flight to Las Vegas, Nevada. When respondents arrived in Atlanta, petitioner and another DEA agent approached them at the departure gate for their flight to Las Vegas. In response to petition- er’s questioning, Fiore explained that she and Gipson were professional gamblers. Respondents maintained that the cash they were carrying was their gambling “ ‘bank’ ” and winnings. App. 15, 24. After using a drug-sniffing dog to perform a sniff test, petitioner seized the cash.1 Petitioner advised respondents that their funds would be returned if they later proved a legitimate source for the cash. Re- spondents then boarded their plane. After respondents departed, petitioner moved the cash to a secure location and the matter was forwarded to DEA headquarters. The next day, petitioner received a phone call from respondents’ attorney in Nevada seeking return of the funds. On two occasions over the next month, peti- tioner also received documentation from the attorney regarding the legitimacy of the funds. At some point after petitioner seized the cash, he helped draft an affidavit to show probable cause for forfeiture of —————— 1 Respondents allege that the sniff test was “at best, inconclusive,” and there is no indication in the pleadings that drugs or drug residue were ever found on or with the cash. App. 21. Cite as: 571 U. S. (2014) 3 Opinion of the Court the funds and forwarded that affidavit to a United States Attorney’s Office in Georgia.2 According to respondents, the affidavit was false and misleading because petitioner misrepresented the encounter at the airport and omitted exculpatory information regarding the lack of drug evi- dence and the legitimate source of the funds. In the end, no forfeiture complaint was filed, and the DEA returned the funds to respondents in March 2007. Respondents filed suit against petitioner in the United States District Court for the District of Nevada, seeking money damages under Respondents alleged that petitioner violated their Fourth Amendment rights by (1) seizing the cash without probable cause; (2) keeping the money after concluding it did not come from drug- related activity; (3) drafting and forwarding a probable cause affidavit to support a forfeiture action while know- ing the affidavit contained false statements; (4) willfully seeking forfeiture while withholding exculpatory informa- tion; and (5) withholding that exculpatory information from the United States Attorney’s Office. The District Court granted petitioner’s motion to dis- miss. Relying on this Court’s decision in the court determined that petition- er’s search of respondents and his seizure of the cash in Georgia did not establish a basis to exercise personal jurisdiction in Nevada. The court concluded that even if petitioner caused harm to respondents in Nevada while knowing they lived in Nevada, that fact alone did not confer jurisdiction. Because the court dismissed the com- plaint for lack of personal jurisdiction, it did not determine —————— 2 The alleged affidavit is not in the record. Because this case comes to us at the motion-to-dismiss stage, we take respondents’ factual allega- tions as true, including their allegations regarding the existence and content of the affidavit. 4 WALDEN v. FIORE Opinion of the Court whether venue was proper. On appeal, a divided panel of the United States Court of Appeals for the Ninth Circuit reversed. The Court of Appeals assumed the District Court had correctly deter- mined that petitioner’s search and seizure in Georgia could not support exercise of jurisdiction in Nevada. The court held, however, that the District Court could properly exercise jurisdiction over “the false probable cause affida- vit aspect of the case.” Accord- ing to the Court of Appeals, petitioner “expressly aimed” his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a “significant connection” to Nevada.3 After determining that the delay in returning the funds to respondents caused them “foreseeable harm” in Nevada and that the exercise of personal jurisdiction over petitioner was otherwise reasonable, the court found the District Court’s exercise of personal jurisdiction to be proper.4 The Ninth Circuit denied re- hearing en banc, with eight judges, in two separate opin- ions, dissenting. We granted certiorari to decide whether due process permits a Nevada court to exercise jurisdiction over peti- tioner. 568 U. S. (2013). We hold that it does not and —————— 3 The allegations in the complaint suggested to the Court of Appeals that petitioner “definitely knew, at some point after the seizure but before providing the alleged false probable cause affidavit, that [re- spondents] had a significant connection to Nevada.” 4 Judge Ikuta dissented. In her view, the “false affidavit/forfeiture proceeding aspect” over which the majority found jurisdiction proper was not raised as a separate claim in the complaint, and she found it “doubtful that such a constitutional tort even exists.” After the court denied rehearing en banc, the majority explained in a post- script that it viewed the filing of the false affidavit, which effected a “continued seizure” of the funds, as a separate Fourth Amendment violation. at 588–589. Petitioner does not dispute that reading here. Cite as: 571 U. S. (2014) 5 Opinion of the Court therefore reverse.5 II A “Federal courts ordinarily follow state law in determin- ing the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U. S. (2014) (slip op., at 6). This is because a federal district court’s authority to assert personal jurisdiction in most cases is linked to service of process on a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed. Rule of Civ. Proc. 4(k)(1)(A). Here, Nevada has authorized its courts to exercise juris- diction over persons “on any basis not inconsistent with the Constitution of the United States.” Nev. Rev. Stat. Thus, in order to determine whether the Federal District Court in this case was authorized to exercise jurisdiction over petitioner, we ask whether the exercise of jurisdiction “comports with the limits imposed by federal due process” on the State of Nevada. Daimler, at (slip op., at 6). B 1 The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts. World-Wide Volkswagen Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have “certain minimum con- tacts such that the maintenance of the suit does not —————— 5 We also granted certiorari on the question whether Nevada is a proper venue for the suit under 28 U.S. C. Because we resolve the case on jurisdictional grounds, we do not decide whether venue was proper in Nevada. 6 WALDEN v. FIORE Opinion of the Court offend ‘traditional notions of fair play and substantial justice.’ ” International Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting 463 (1940)). This case addresses the “minimum contacts” necessary to create specific jurisdiction.6 The inquiry whether a forum State may assert specific jurisdiction over a nonres- ident defendant “focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” ). For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum Two related aspects of this necessary relationship are relevant in this case. First, the relationship must arise out of contacts that the “defendant himself ” creates with the forum Burger Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defend- ant—not the convenience of plaintiffs or third parties. See World-Wide Volkswagen at –292. We have consistently rejected attempts to satisfy the defendant- focused “minimum contacts” inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum See Helicopteros Nacionales de Colombia, S. (“[The] unilateral —————— 6 “Specific” or “case-linked” jurisdiction “depends on an ‘affiliatio[n] between the forum and the underlying controversy’ ” (i.e., an “activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation”). Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. (slip op., at 2). This is in contrast to “general” or “all purpose” jurisdiction, which permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit (e.g., domicile). Respondents rely on specific jurisdiction only. Cite as: 571 U. S. (2014) 7 Opinion of the Court activity of another party or a third person is not an appro- priate consideration when determining whether a defend- ant has sufficient contacts with a forum State to justify an assertion of jurisdiction”). We have thus rejected a plain- tiff ’s argument that a Florida court could exercise per- sonal jurisdiction over a trustee in Delaware based solely on the contacts of the trust’s settlor, who was domiciled in Florida and had executed powers of appointment there. We have likewise held that Oklahoma courts could not exer- cise personal jurisdiction over an automobile distributor that supplies New York, New Jersey, and Connecticut dealers based only on an automobile purchaser’s act of driving it on Oklahoma highways. World-Wide Volks- wagen Put simply, however sig- nificant the plaintiff ’s contacts with the forum may be, those contacts cannot be “decisive in determining whether the defendant’s due process rights are violated.” 444 U.S., at Second, our “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there. See, e.g., International (Due process “does not contemplate that a state may make binding a judg- ment in personam against an individual with which the state has no contacts, ties, or relations”); (“However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him”). Accordingly, we have upheld the assertion of juris- diction over defendants who have purposefully “reach[ed] out beyond” their State and into another by, for example, entering a contractual relationship that “envisioned con- tinuing and wide-reaching contacts” in the forum State, Burger at 479–480, or by circulating maga- 8 WALDEN v. FIORE Opinion of the Court zines to “deliberately exploi[t]” a market in the forum State, And although physical pres- ence in the forum is not a prerequisite to jurisdiction, Burger physical entry into the State— either by the defendant in person or through an agent, goods, mail, or some other means—is certainly a relevant contact. See, e.g., at 773–774. But the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him. See Burger (“If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot”); (declining to “find personal jurisdiction in a State merely because [the plaintiff in a child support action] was residing there”). To be sure, a defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties. But a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. See at (“Naturally, the parties’ relation- ships with each other may be significant in evaluating their ties to the forum. The requirements of International however, must be met as to each defendant over whom a state court exercises jurisdiction”). Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the “random, fortuitous, or attenuated” contacts he makes by interacting with other persons affiliated with the Burger 471 U.S., at (internal quota- tion marks omitted). Cite as: 571 U. S. (2014) 9 Opinion of the Court 2 These same principles apply when intentional torts are involved. In that context, it is likewise insufficient to rely on a defendant’s “random, fortuitous, or attenuated con- tacts” or on the “unilateral activity” of a plaintiff. (same). A forum State’s exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on inten- tional conduct by the defendant that creates the necessary contacts with the forum. illustrates the applica- tion of these principles. In a California actress brought a libel suit in California state court against a reporter and an editor, both of whom worked for the Na- tional Enquirer at its headquarters in Florida. The plain- tiff ’s libel claims were based on an article written and edited by the defendants in Florida for publication in the National Enquirer, a national weekly newspaper with a California circulation of roughly 600,000. We held that California’s assertion of jurisdiction over the defendants was consistent with due process. Although we recognized that the defendants’ activities “focus[ed]” on the plaintiff, our jurisdictional inquiry “focuse[d] on ‘the relationship among the defendant, the forum, and the litigation.’ ” (quoting 433 U.S., at ). Specifically, we examined the various contacts the defend- ants had created with California (and not just with the plaintiff) by writing the allegedly libelous story. We found those forum contacts to be ample: The defend- ants relied on phone calls to “California sources” for the information in their article; they wrote the story about the plaintiff ’s activities in California; they caused reputa- tional injury in California by writing an allegedly libelous article that was widely circulated in the State; and the “brunt” of that injury was suffered by the plaintiff in that 465 U.S., –789. “In sum, California [wa]s the focal point both of the story and of the harm suffered.” 10 WALDEN v. FIORE Opinion of the Court Jurisdiction over the defendants was “there- fore proper in California based on the ‘effects’ of their Florida conduct in California.” The crux of was that the reputation-based “ef- fects” of the alleged libel connected the defendants to California, not just to the plaintiff. The strength of that connection was largely a function of the nature of the libel tort. However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons. See Restate- ment (Second) of Torts §, Comment b (1976); see also (“[R]eputation is the estimation in which one’s char- acter is held by his neighbors or associates”). Accordingly, the reputational injury caused by the defendants’ story would not have occurred but for the fact that the defend- ants wrote an article for publication in California that was read by a large number of California citizens. Indeed, because publication to third persons is a necessary ele- ment of libel, see the defendants’ intentional tort actually occurred in California. (“The tort of libel is generally held to occur wherever the offending material is circulated”). In this way, the “ef- fects” caused by the defendants’ article—i.e., the injury to the plaintiff ’s reputation in the estimation of the Califor- nia public—connected the defendants’ conduct to Califor- nia, not just to a plaintiff who lived there. That connec- tion, combined with the various facts that gave the article a California focus, sufficed to authorize the California court’s exercise of jurisdiction.7 —————— 7 The defendants in argued that no contacts they had with California were sufficiently purposeful because their employer was responsible for circulation of the article. See 465 U.S. 783, 789 We rejected that argument. Even though the defend- ants did not circulate the article themselves, they “expressly aimed” “their intentional, and allegedly tortious, actions” at California be- cause they knew the National Enquirer “ha[d] its largest circulation” in Cite as: 571 U. S. (2014) 11 Opinion of the Court III Applying the foregoing principles, we conclude that petitioner lacks the “minimal contacts” with Nevada that are a prerequisite to the exercise of jurisdiction over him. 357 U.S., It is undisputed that no part of petitioner’s course of conduct occurred in Nevada. Peti- tioner approached, questioned, and searched respondents, and seized the cash at issue, in the Atlanta airport. It is alleged that petitioner later helped draft a “false probable cause affidavit” in Georgia and forwarded that affidavit to a United States Attorney’s Office in Georgia to support a potential action for forfeiture of the seized funds. 688 F.3d, at 563. Petitioner never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada. In short, when viewed through the proper lens—whether the defendant’s actions connect him to the forum—petitioner formed no jurisdictionally rele- vant contacts with Nevada. The Court of Appeals reached a contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents. See 444 U.S., at Rather than assessing petitioner’s own contacts with Nevada, the Court of Appeals looked to petitioner’s knowledge of respondents’ “strong forum connections.” 688 F.3d, at –579, 581. In the court’s view, that knowledge, combined with its conclusion that respondents suffered foreseeable harm in Nevada, satis- fied the “minimum contacts” inquiry.8 This approach to the “minimum contacts” analysis —————— California, and that the article would “have a potentially devastating impact” there. –790. 8 Respondents propose a substantially similar analysis. They suggest that “a defendant creates sufficient minimum contacts with a forum when he (1) intentionally targets (2) a known resident of the forum (3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the forum state.” Brief for Respondents 26–27. 12 WALDEN v. FIORE Opinion of the Court impermissibly allows a plaintiff ’s contacts with the de- fendant and forum to drive the jurisdictional analysis. Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada con- nections. Such reasoning improperly attributes a plain- tiff ’s forum connections to the defendant and makes those connections “decisive” in the jurisdictional analysis. See at It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself. Relying on respondents emphasize that they suffered the “injury” caused by petitioner’s allegedly tor- tious conduct (i.e., the delayed return of their gambling funds) while they were residing in the forum. Brief for Respondents 14. This emphasis is likewise misplaced. As previously noted, made clear that mere injury to a forum resident is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way. Respondents’ claimed injury does not evince a connec- tion between petitioner and Nevada. Even if we consider the continuation of the seizure in Georgia to be a distinct injury, it is not the sort of effect that is tethered to Nevada in any meaningful way. Respondents (and only respond- ents) lacked access to their funds in Nevada not because anything independently occurred there, but because Ne- vada is where respondents chose to be at a time when they desired to use the funds seized by petitioner. Respondents would have experienced this same lack of access in Cali- fornia, Mississippi, or wherever else they might have traveled and found themselves wanting more money than Cite as: 571 U. S. (2014) 13 Opinion of the Court they had. Unlike the broad publication of the forum- focused story in the effects of petitioner’s con- duct on respondents are not connected to the forum State in a way that makes those effects a proper basis for jurisdiction.9 The Court of Appeals pointed to other possible contacts with Nevada, each ultimately unavailing. Respondents’ Nevada attorney contacted petitioner in Georgia, but that is precisely the sort of “unilateral activity” of a third party that “cannot satisfy the requirement of contact with the forum ” Respondents allege that some of the cash seized in Georgia “originated” in Nevada, but that attenuated connection was not created by petitioner, and the cash was in Georgia, not Nevada, when petitioner seized it. Finally, the funds were eventu- ally returned to respondents in Nevada, but petitioner had nothing to do with that return (indeed, it seems likely that it was respondents’ unilateral decision to have their funds sent to Nevada). * * * Well-established principles of personal jurisdiction are sufficient to decide this case. The proper focus of the —————— 9 Respondents warn that if we decide petitioner lacks minimum con- tacts in this case, it will bring about unfairness in cases where inten- tional torts are committed via the Internet or other electronic means (e.g., fraudulent access of financial accounts or “phishing” schemes). As an initial matter, we reiterate that the “minimum contacts” inquiry principally protects the liberty of the nonresident defendant, not the interests of the plaintiff. World-Wide Volkswagen –292 In any event, this case does not present the very different questions whether and how a defendant’s virtual “presence” and conduct translate into “contacts” with a particular To the contrary, there is no question where the conduct giving rise to this litigation took place: Petitioner seized physical cash from respondents in the Atlanta airport, and he later drafted and forwarded an affidavit in Georgia. We leave questions about virtual contacts for another day. 14 WALDEN v. FIORE Opinion of the Court “minimum contacts” inquiry in intentional-tort cases is “ ‘the relationship among the defendant, the forum, and the litigation.’ ” 465 U.S., And it is the defendant, not the plaintiff or third parties, who must create contacts with the forum In this case, the application of those principles is clear: Petitioner’s rele- vant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdic- tion. We therefore reverse the judgment of the Court of Appeals. It is so ordered

Justice Blackmun

majority

Sorenson v. Secretary of Treasury

https://www.courtlistener.com/opinion/111634/sorenson-v-secretary-of-treasury/

https://www.courtlistener.com/api/rest/v3/clusters/111634/

1985-071

The Internal Revenue Code and the Social Security Act direct the Secretary of the Treasury to "intercept" certain *853 tax refunds payable to persons who have failed to meet child-support obligations. In this case, the United States Court of Appeals for the Ninth Circuit ruled that payments involving earned-income credits could be intercepted. 752 F.2d 1433 (1985). We granted certiorari, 472 U.S. 1016 (1985), because this ruling was in conflict with decisions of the Courts of Appeals for the Second and Tenth Circuits. See Rucker v. Secretary of Treasury, 751 F.2d 351 (CA10 1984); Nelson v. Regan, 731 F.2d 105 (CA2), cert. denied sub nom. Manning v. Nelson, 469 U.S. 853 (1984). I A Stanley Sorenson, the husband of petitioner Marie Sorenson, was legally obligated to make child-support payments for a child of his previous marriage who was in the custody of his former wife. Mr. Sorenson was unemployed because of a disability and fell behind on those support payments. His former wife applied for welfare benefits from the State of Washington. Since 1975, the program for Aid to Families with Dependent Children (AFDC) has required, as a condition of eligibility, that applicants for welfare assign to the State concerned any right to child-support payments that has accrued at the time of assignment. Pub. L. 93-647, § 101(c)(5)(C), 88 Stat. 2359, 42 U.S. C. § 602(a)(26)(A).[1] Thus, Stanley Sorenson's former wife turned over to the State her right to collect the payments Mr. Sorenson had failed to make. Stanley and Marie Sorenson also had their own dependent child living with them. They thus were potentially eligible *854 to receive an earned-income credit. For the calendar year 1981, the time relevant to this lawsuit, § 43 of the Internal Revenue Code of 1954, as amended, provided that an individual responsible for the support of a child living with him was allowed "as a credit against the tax imposed . . . for the taxable year an amount equal to 10 percent of so much of the earned income for the taxable year as does not exceed $5,000." As the amount of the taxpayer's earned income increased, the amount of the credit decreased, reaching zero when the taxpayer's adjusted gross income reached $10,000.[2] Unlike certain other credits, which can be used only to offset tax that would otherwise be owed, the earned-income credit is "refundable." Thus, if an individual's earned-income credit exceeds his tax liability, the excess amount is "considered an overpayment" of tax under § 6401(b), as it then read, of the 1954 Code.[3] Subject to specified setoffs, *855 § 6402(a) directs the Secretary to credit or refund "any overpayment" to the person who made it.[4] An individual who is entitled to an earned-income credit that exceeds the amount of tax he owes thereby receives the difference as if he had overpaid his tax in that amount. B In February 1982, petitioner and her husband timely filed a joint federal income tax return for the calendar year 1981. Petitioner had worked during part of that year, and all the Sorenson family income for the year was attributable to her wages and unemployment compensation benefits. By the return so filed, the Sorensons anticipated a refund of $1408.90, consisting in part of excess withholding on petitioner's wages and in part of an earned-income credit. The Internal Revenue Service, however, notified the Sorensons that $1,132 of the anticipated refund was being retained, under the authority granted it by the tax-intercept law, and *856 would be paid over to the State of Washington because that State had been assigned the right to collect Mr. Sorenson's unpaid child-support obligations. See Second Declaration of Peter Greenfield, Exh. B, Sorenson v. Secretary of Treasury, No. C82-441C (WD Wash.). The tax-intercept law essentially directs the Secretary to give priority to a State's claim for recoupment of welfare payments made to a family who failed to receive child support, see § 402(a)(26)(A) of the Social Security Act, as amended, 42 U.S. C. § 602(a)(26)(A), over an individual's claim for refund of tax overpayment. See § 6402(a), as amended, of the 1954 Code. The intercept law originally was enacted as part of the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, § 2331, 95 Stat. 860. First, OBRA § 2331(a) added § 464 to the Social Security Act, 42 U.S. C. § 664. That section directs the Secretaries of the Treasury and of Health and Human Services to establish a scheme by which a State is to notify the Secretary of the Treasury of persons who owe past-due child-support payments that have been assigned to it, and directs the Secretary of the Treasury to intercept tax-refund payments that would otherwise be paid to those persons: "Upon receiving notice from a State agency administering [an AFDC plan] . . . that a named individual owes past-due support which has been assigned to such State pursuant to section 402(a)(26), the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual's *857 home address) for distribution in accordance with section 457(b)(3)." § 464(a), 42 U.S. C. § 664(a).[5] Section 2331(c) of OBRA amended the Internal Revenue Code. It added a new subsection to the provision governing the Secretary of the Treasury's authority to refund overpayments to taxpayers. The new subsection, § 6402(c), requires the Secretary to withhold from the refund otherwise due the taxpayer the amount owed the State in past-due child support and to remit the amount withheld to the State: "The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person's future liability for an internal revenue tax." C After negotiations concerning the status of tax refunds in community property States such as Washington — issues that are not germane to the question now presented to this Court — the Secretary ultimately withheld only half of the refund increment the Sorensons claimed. Petitioner then filed *858 a class action in the United States District Court for the Western District of Washington seeking, among other things, a declaration that § 464 of the Social Security Act did not reach a refund attributable to an excess earned-income credit. The District Court rejected the Secretary's jurisdictional arguments, which were renewed on appeal to the Court of Appeals but which are not pressed in this Court. See Brief for Respondents 5, n. 1. But it agreed with the Secretary's arguments on the merits and granted summary judgment for the Government. 557 F. Supp. 729 (1982). The Court of Appeals affirmed that judgment. 752 F.2d 1433 (CA9 1985). It rejected petitioner's statutory construction arguments, and held that, since the Code expressly defined excess earned-income credits as "overpayments," and disbursed those excess credits to recipients through the income tax refund process, the credits were "payable `as' refunds of federal taxes paid" and therefore could be intercepted. Id., at 1441 (emphasis in original). Congress used the broad terms "any amounts" and "any overpayment" in the tax-intercept law and gave no indication that it intended to exclude earned-income credit payments from these terms. The Court of Appeals also rejected petitioner's argument that the Secretary's position conflicted with Congress' intention to provide benefits to the poor through the earned-income credit. First, the legislative history of § 43 did not suggest that the earned-income credit was intended primarily as a type of welfare grant; rather, it was meant to negate the disincentive to work caused by Social Security taxes. Since the earned-income credit was payable as a lump sum, it was more like excess withholding, which was clearly reachable by the intercept program, than it was like wages, a portion of which Congress exempted from the assessment and collection process. See 752 F.2d, at 1443, n. 1. Second, had Congress intended to exempt earned-income credit payments from the intercept program, it could have done so expressly. Instead, it provided that any amount payable *859 through the federal tax-refund process might be intercepted. "In the face of this rather clear statutory mandate," said the Court of Appeals, "we conclude that we are not free to speculate that Congress intended otherwise." Id., at 1443. II Petitioner advances two arguments to support her claim that an excess earned-income credit cannot be intercepted. First, she claims that the language and structure of the interlocking statutory provisions that make up the intercept law exclude an earned-income credit from its reach: excess earned-income credits are neither "overpayments" nor "refunds of Federal taxes paid," and only those items are subject to interception. Second, she claims that permitting interception of an earned-income credit would frustrate Congress' aims in providing the credit, and thus that Congress could not have intended the intercept law to reach earned-income credits. We find neither argument persuasive. A The Internal Revenue Code's treatment of earned-income credits supports the Government's position. An individual can receive the amount by which his entitlement to an earned-income credit exceeds his tax liability only because § 6401(b) of the Code defines that amount as an "overpayment," and § 6402 provides a mechanism for disbursing overpayments, namely, the income tax refund process. The refundability of the earned-income credit is thus inseparable from its classification as an overpayment of tax. Petitioner therefore acknowledges that the excess earned-income credit is an "overpayment" for purposes of § 6402(a), the general provision that authorizes all tax refunds. See n. 4, supra. If it were not, the Secretary would lack authorization for refunding it to her. She claims, however, that while an excess earned-income credit is an "overpayment" for purposes of § 6402(a), it is not an "overpayment" for purposes of § 6402(c), which requires that the "amount of any overpayment . . . *860 shall be reduced by the amount of any past-due support" assigned to the State. The normal rule of statutory construction assumes that " `identical words used in different parts of the same act are intended to have the same meaning.' " Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934), quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). That the Internal Revenue Code includes an explicit definition of "overpayment" in the same subchapter strengthens the presumption. And that both subsections concern the tax-refund treatment of "overpayment[s]" is especially damaging to any claim that "the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent." Stockholms Enskilda Bank, 293 U. S., at 87. Petitioner and the two Courts of Appeals that have excluded excess earned-income credits from the definition of "overpayment" used in § 6402(c) offer two bases for their position. First, they believe that § 6402(c) limits § 6401(b)'s broad definition "by [using] the phrase `overpayment to be refunded to the person making the overpayment.' " Nelson v. Regan, 731 F. 2d, at 111; see Rucker v. Secretary of Treasury, 751 F. 2d, at 356. Not all overpayments, they suggest, are refunded to persons who "made" them, since some — those consisting of earned-income credits — may be refunded to persons who actually have not paid any tax. We disagree. All refunds made by the Secretary under § 6402(a) are paid to "the person who made the overpayment." The phrase merely identifies the person entitled to the refund; it does not restrict the nature of the refund itself. Petitioner must characterize herself as a person who has "made" an overpayment; otherwise, she cannot claim her excess earned-income credit. The phrase in § 6402(c) on which petitioner and the Second and Tenth Circuits relied is virtually identical to the phrase used in § 6402(a). Since the words cannot have *861 the limiting effect petitioner proposes when used in § 6402(a), no justification exists for giving them such a construction in § 6402(c). Second, petitioner and the Second and Tenth Circuits perceive a tension between § 6402(b)'s and § 6402(a)'s treatment of excess earned-income credits and § 464(a)'s treatment of interceptable amounts. As used in those Code sections, "overpayment" includes more than "refunds of Federal taxes paid," the phrase used in the Social Security Act. Since § 464 and § 6402(c) were enacted simultaneously as part of OBRA, petitioner and the two Circuits believe that § 6402(c) should be harmonized with § 464 rather than with §§ 6401(b) and 6402(a). See Rucker v. Secretary of Treasury, 751 F. 2d, at 357; Nelson v. Regan, 731 F. 2d., at 111. This second argument, it seems to us, misperceives the structure of the tax-intercept law, and manufactures a tension that need not exist. OBRA's placement of provisions regarding interception in both Acts reflects a division of functions. The tax-intercept program lies at the intersection of the Social Security Act's concern in Subchapter IV, Part D, with child support, and the Internal Revenue Code's concern in Chapter 65, Subchapter A, with the treatment of credits in the tax-refund process. Section 464 addresses the concerns of the States that have received AFDC-related grants. It defines past-due child support, authorizes procedures by which the States can notify the Secretary of the Treasury of their entitlement to recover such past-due support, and directs the Secretary to aid the States, through his control over the tax-refund process, in recouping that support. Sections 6401 and 6402 address the operation of the tax-refund process under the Internal Revenue Code. They define the status of certain tax credits, set up a mechanism for disbursing refunds, and direct the Secretary to divert certain amounts from the refund process. To the extent that the tax-intercept law regulates the relationship of the Secretary of the Treasury to refund claimants, it does so through *862 § 6402, and not through a provision that governs the Secretary's relationship to state agencies. Petitioner, however, views § 6402(c)'s reference to § 464 as indicating that § 464(a) is meant to be read into § 6402(c) as a limitation on the Secretary's intercept powers. This argument depends on a somewhat strained construction of § 6402(c)'s statement that "[t]he amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support . . . owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act." Petitioner claims that "[t]he words `in accordance with section 464 of the Social Security Act' . . . do not modify `has been notified by a State,' as one might initially assume. Rather they belatedly modify the words `shall be reduced.' " Brief for Petitioner 18. In petitioner's view, her construction would lead to the conclusion that a refund can be reduced only to the extent that the refund represents a refund of tax actually paid, since that is all § 464(a) permits. We disagree with both petitioner's construction of § 6402(c) and her reading of § 464(a). First, it seems far more plausible that the words modify the nearest verb. If they are given this more natural reading, then § 6402(c) directs the Secretary to intercept only that amount which properly is classified as past-due support and of which he properly has been notified. But even if the reference in § 6402(c) to § 464 were read to refer solely to § 464(a),[6] nothing in that subsection exempts excess earned-income credits from interception. Petitioner and the Second and Tenth Circuits recast their *863 argument regarding the meaning of "overpayment" by contending that the amount of a refund that is attributable to an excess earned-income credit is not a "refun[d] of Federal taxes paid," and that § 464(a) permits interception of only "amounts, as refunds of Federal taxes paid": "A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer's liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax." Rucker v. Secretary of Treasury, 751 F. 2d, at 356. But just as eligibility for an earned-income credit does not depend upon an individual's actually having paid any tax, the Code's classification of the credit as an "overpayment" to be refunded is similarly independent of the individual's actually having made any payment. Cf. § 6401(c). The Ninth Circuit correctly held that, to the extent an excess earned-income credit is "payable" to an individual, it is payable as if it were a refund of tax paid. 752 F.2d, at 1441. Section 464(a)'s reference to the tax-refund process is best understood as a directive to the Secretary that he follow the procedures established by the Internal Revenue Code for calculating and disbursing refunds, rather than as an attempt implicitly to redefine terms given special meaning by the Code. B Nor do we agree with petitioner's claim that Congress did not intend the intercept program to reach excess earned-income credits. Petitioner and the Government agree that Congress never mentioned the earned-income credit in enacting OBRA. See Brief for Petitioner 24; Tr. of Oral Arg. 21. But it defies belief that Congress was unaware, when it provided in § 6402(c) that "any overpayment to be refunded . . . shall be reduced by the amount of any past-due support" (emphasis *864 added), that this would include refunds attributable to excess earned-income credits. Congress had previously expressly defined an excess earned-income credit as an "overpayment," in § 6401(b) of the Internal Revenue Code — the section immediately preceding the section to which Congress added the intercept provision.[7] What petitioner and the Second and Tenth Circuits are really claiming is that the intercept law should be read narrowly to avoid frustrating the goals of the earned-income credit program. The earned-income credit was enacted to reduce the disincentive to work caused by the imposition of Social Security taxes on earned income (welfare payments are not similarly taxed), to stimulate the economy by funneling funds to persons likely to spend the money immediately, and to provide relief for low-income families hurt by rising food and energy prices.[8] Each is an undeniably important objective. It is impossible, however, for us to say that these goals outweigh the goals served by the subsequently enacted tax-intercept program — securing child support from absent *865 parents whenever possible and reducing the number of families on welfare.[9] Congress of course could conclude that families eligible for earned-income credits have a more compelling claim to the funds involved than do either the States or non-AFDC families. But it is equally clear that Congress could have decided that the more pressing need was to alleviate the "devastating consequences for children and the taxpayers" of the epidemic of nonsupport. See Hearing before the Senate Committee on Finance on Spending Reduction Proposals, 97th Cong., 1st Sess., pt. 1, p. 34 (1981) (statement of Secretary Schweiker).[10] The ordering of competing social policies is a quintessentially legislative function. In light of Congress' decision to direct the interception of any overpayment otherwise refundable to a taxpayer, the Ninth Circuit correctly refused to "speculate that Congress intended otherwise." 752 F.2d, at 1443. Its judgment, accordingly, is affirmed. It is so ordered.

The Internal Revenue Code and the Social Security Act direct the Secretary of the Treasury to "intercept" certain *853 tax refunds payable to persons who have failed to meet child-support obligations. In this case, the United States Court of Appeals for the Ninth Circuit ruled that payments involving earned-income credits could be intercepted. We granted certiorari, because this ruling was in conflict with decisions of the Courts of Appeals for the Second and Tenth Circuits. See ; (CA2), cert. denied sub nom. I A Stanley Sorenson, the husband of petitioner Marie Sorenson, was legally obligated to make child-support payments for a child of his previous marriage who was in the custody of his former wife. Mr. Sorenson was unemployed because of a disability and fell behind on those support payments. His former wife applied for welfare benefits from the State of Washington. Since 1975, the program for Aid to Families with Dependent Children (AFDC) has required, as a condition of eligibility, that applicants for welfare assign to the State concerned any right to child-support payments that has accrued at the time of assignment. (c)(5)(C), 2 U.S. C. 602(a)(26)(A).[1] Thus, Stanley Sorenson's former wife turned over to the State her right to collect the payments Mr. Sorenson had failed to make. Stanley and Marie Sorenson also had their own dependent child living with them. They thus were potentially eligible *85 to receive an earned-income credit. For the calendar year 1981, the time relevant to this lawsuit, 3 of the Internal Revenue Code of 195, as amended, provided that an individual responsible for the support of a child living with him was allowed "as a credit against the tax imposed for the taxable year an amount equal to 10 percent of so much of the earned income for the taxable year as does not exceed $5,000." As the amount of the taxpayer's earned income increased, the amount of the credit decreased, reaching zero when the taxpayer's adjusted gross income reached $10,000.[2] Unlike certain other credits, which can be used only to offset tax that would otherwise be owed, the earned-income credit is "refundable." Thus, if an individual's earned-income credit exceeds his tax liability, the excess amount is "considered an overpayment" of tax under 601(b), as it then read, of the 195 Code.[3] Subject to specified setoffs, *855 602(a) directs the Secretary to credit or refund "any overpayment" to the person who made it.[] An individual who is entitled to an earned-income credit that exceeds the amount of tax he owes thereby receives the difference as if he had overpaid his tax in that amount. B In February petitioner and her husband timely filed a joint federal income tax return for the calendar year 1981. Petitioner had worked during part of that year, and all the Sorenson family income for the year was attributable to her wages and unemployment compensation benefits. By the return so filed, the Sorensons anticipated a refund of $108.90, consisting in part of excess withholding on petitioner's wages and in part of an earned-income credit. The Internal Revenue Service, however, notified the Sorensons that $1,132 of the anticipated refund was being retained, under the authority granted it by the tax-intercept law, and *856 would be paid over to the State of Washington because that State had been assigned the right to collect Mr. Sorenson's unpaid child-support obligations. See Second Declaration of Peter Greenfield, Exh. B, Sorenson v. Secretary of Treasury, No. C82-1C (WD Wash.). The tax-intercept law essentially directs the Secretary to give priority to a State's claim for recoupment of welfare payments made to a family who failed to receive child support, see 02(a)(26)(A) of the Social Security Act, as amended, 2 U.S. C. 602(a)(26)(A), over an individual's claim for refund of tax overpayment. See 602(a), as amended, of the 195 Code. The intercept law originally was enacted as part of the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, 2331, First, OBRA 2331(a) added 6 to the Social Security Act, 2 U.S. C. 66. That section directs the Secretaries of the Treasury and of Health and Human Services to establish a scheme by which a State is to notify the Secretary of the Treasury of persons who owe past-due child-support payments that have been assigned to it, and directs the Secretary of the Treasury to intercept tax-refund payments that would otherwise be paid to those persons: "Upon receiving notice from a State agency administering [an AFDC plan] that a named individual owes past-due support which has been assigned to such State pursuant to section 02(a)(26), the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual's *857 home address) for distribution in accordance with section 57(b)(3)." 6(a), 2 U.S. C. 66(a).[5] Section 2331(c) of OBRA amended the Internal Revenue Code. It added a new subsection to the provision governing the Secretary of the Treasury's authority to refund overpayments to taxpayers. The new subsection, 602(c), requires the Secretary to withhold from the refund otherwise due the taxpayer the amount owed the State in past-due child support and to remit the amount withheld to the State: "The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 6(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 6 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person's future liability for an internal revenue tax." C After negotiations concerning the status of tax refunds in community property States such as Washington — issues that are not germane to the question now presented to this Court — the Secretary ultimately withheld only half of the refund increment the Sorensons claimed. Petitioner then filed *858 a class action in the United States District Court for the Western District of Washington seeking, among other things, a declaration that 6 of the Social Security Act did not reach a refund attributable to an excess earned-income credit. The District Court rejected the Secretary's jurisdictional arguments, which were renewed on appeal to the Court of Appeals but which are not pressed in this Court. See Brief for Respondents 5, n. 1. But it agreed with the Secretary's arguments on the merits and granted summary judgment for the Government. The Court of Appeals affirmed that judgment. It rejected petitioner's statutory construction arguments, and held that, since the Code expressly defined excess earned-income credits as "overpayments," and disbursed those excess credits to recipients through the income tax refund process, the credits were "payable `as' refunds of federal taxes paid" and therefore could be intercepted. Congress used the broad terms "any amounts" and "any overpayment" in the tax-intercept law and gave no indication that it intended to exclude earned-income credit payments from these terms. The Court of Appeals also rejected petitioner's argument that the Secretary's position conflicted with Congress' intention to provide benefits to the poor through the earned-income credit. First, the legislative history of 3 did not suggest that the earned-income credit was intended primarily as a type of welfare grant; rather, it was meant to negate the disincentive to work caused by Social Security taxes. Since the earned-income credit was payable as a lump sum, it was more like excess withholding, which was clearly reachable by the intercept program, than it was like wages, a portion of which Congress exempted from the assessment and collection process. See n. 1. Second, had Congress intended to exempt earned-income credit payments from the intercept program, it could have done so expressly. Instead, it provided that any amount payable *859 through the federal tax-refund process might be intercepted. "In the face of this rather clear statutory mandate," said the Court of Appeals, "we conclude that we are not free to speculate that Congress intended otherwise." II Petitioner advances two arguments to support her claim that an excess earned-income credit cannot be intercepted. First, she claims that the language and structure of the interlocking statutory provisions that make up the intercept law exclude an earned-income credit from its reach: excess earned-income credits are neither "overpayments" nor "refunds of Federal taxes paid," and only those items are subject to interception. Second, she claims that permitting interception of an earned-income credit would frustrate Congress' aims in providing the credit, and thus that Congress could not have intended the intercept law to reach earned-income credits. We find neither argument persuasive. A The Internal Revenue Code's treatment of earned-income credits supports the Government's position. An individual can receive the amount by which his entitlement to an earned-income credit exceeds his tax liability only because 601(b) of the Code defines that amount as an "overpayment," and 602 provides a mechanism for disbursing overpayments, namely, the income tax refund process. The refundability of the earned-income credit is thus inseparable from its classification as an overpayment of tax. Petitioner therefore acknowledges that the excess earned-income credit is an "overpayment" for purposes of 602(a), the general provision that authorizes all tax refunds. See n. If it were not, the Secretary would lack authorization for refunding it to her. She claims, however, that while an excess earned-income credit is an "overpayment" for purposes of 602(a), it is not an "overpayment" for purposes of 602(c), which requires that the "amount of any overpayment *860 shall be reduced by the amount of any past-due support" assigned to the State. The normal rule of statutory construction assumes that " `identical words used in different parts of the same act are intended to have the same meaning.' " 293 U.S. 8, (193), quoting Atlantic Cleaners & Dyers, 286 U.S. 27, 33 That the Internal Revenue Code includes an explicit definition of "overpayment" in the same subchapter strengthens the presumption. And that both subsections concern the tax-refund treatment of "overpayment[s]" is especially damaging to any claim that "the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent." Stockholms Enskilda 293 U. S., at Petitioner and the two Courts of Appeals that have excluded excess earned-income credits from the definition of "overpayment" used in 602(c) offer two bases for their position. First, they believe that 602(c) limits 601(b)'s broad definition "by [using] the phrase `overpayment to be refunded to the person making the overpayment.' " 731 F. 2d, at 111; see 751 F. 2d, at 356. Not all overpayments, they suggest, are refunded to persons who "made" them, since some — those consisting of earned-income credits — may be refunded to persons who actually have not paid any tax. We disagree. All refunds made by the Secretary under 602(a) are paid to "the person who made the overpayment." The phrase merely identifies the person entitled to the refund; it does not restrict the nature of the refund itself. Petitioner must characterize herself as a person who has "made" an overpayment; otherwise, she cannot claim her excess earned-income credit. The phrase in 602(c) on which petitioner and the Second and Tenth Circuits relied is virtually identical to the phrase used in 602(a). Since the words cannot have *861 the limiting effect petitioner proposes when used in 602(a), no justification exists for giving them such a construction in 602(c). Second, petitioner and the Second and Tenth Circuits perceive a tension between 602(b)'s and 602(a)'s treatment of excess earned-income credits and 6(a)'s treatment of interceptable amounts. As used in those Code sections, "overpayment" includes more than "refunds of Federal taxes paid," the phrase used in the Social Security Act. Since 6 and 602(c) were enacted simultaneously as part of OBRA, petitioner and the two Circuits believe that 602(c) should be harmonized with 6 rather than with 601(b) and 602(a). See 751 F. 2d, at 357; 731 F. 2d., at 111. This second argument, it seems to us, misperceives the structure of the tax-intercept law, and manufactures a tension that need not exist. OBRA's placement of provisions regarding interception in both Acts reflects a division of functions. The tax-intercept program lies at the intersection of the Social Security Act's concern in Subchapter IV, Part D, with child support, and the Internal Revenue Code's concern in Chapter 65, Subchapter A, with the treatment of credits in the tax-refund process. Section 6 addresses the concerns of the States that have received AFDC-related grants. It defines past-due child support, authorizes procedures by which the States can notify the Secretary of the Treasury of their entitlement to recover such past-due support, and directs the Secretary to aid the States, through his control over the tax-refund process, in recouping that support. Sections 601 and 602 address the operation of the tax-refund process under the Internal Revenue Code. They define the status of certain tax credits, set up a mechanism for disbursing refunds, and direct the Secretary to divert certain amounts from the refund process. To the extent that the tax-intercept law regulates the relationship of the Secretary of the Treasury to refund claimants, it does so through *862 602, and not through a provision that governs the Secretary's relationship to state agencies. Petitioner, however, views 602(c)'s reference to 6 as indicating that 6(a) is meant to be read into 602(c) as a limitation on the Secretary's intercept powers. This argument depends on a somewhat strained construction of 602(c)'s statement that "[t]he amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support owed by that person of which the Secretary has been notified by a State in accordance with section 6 of the Social Security Act." Petitioner claims that "[t]he words `in accordance with section 6 of the Social Security Act' do not modify `has been notified by a State,' as one might initially assume. Rather they belatedly modify the words `shall be reduced.' " Brief for Petitioner 18. In petitioner's view, her construction would lead to the conclusion that a refund can be reduced only to the extent that the refund represents a refund of tax actually paid, since that is all 6(a) permits. We disagree with both petitioner's construction of 602(c) and her reading of 6(a). First, it seems far more plausible that the words modify the nearest verb. If they are given this more natural reading, then 602(c) directs the Secretary to intercept only that amount which properly is classified as past-due support and of which he properly has been notified. But even if the reference in 602(c) to 6 were read to refer solely to 6(a),[6] nothing in that subsection exempts excess earned-income credits from interception. Petitioner and the Second and Tenth Circuits recast their *863 argument regarding the meaning of "overpayment" by contending that the amount of a refund that is attributable to an excess earned-income credit is not a "refun[d] of Federal taxes paid," and that 6(a) permits interception of only "amounts, as refunds of Federal taxes paid": "A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer's liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax." 751 F. 2d, at 356. But just as eligibility for an earned-income credit does not depend upon an individual's actually having paid any tax, the Code's classification of the credit as an "overpayment" to be refunded is similarly independent of the individual's actually having made any payment. Cf. 601(c). The Ninth Circuit correctly held that, to the extent an excess earned-income credit is "payable" to an individual, it is payable as if it were a refund of tax 752 F.2d, Section 6(a)'s reference to the tax-refund process is best understood as a directive to the Secretary that he follow the procedures established by the Internal Revenue Code for calculating and disbursing refunds, rather than as an attempt implicitly to redefine terms given special meaning by the Code. B Nor do we agree with petitioner's claim that Congress did not intend the intercept program to reach excess earned-income credits. Petitioner and the Government agree that Congress never mentioned the earned-income credit in enacting OBRA. See Brief for Petitioner 2; Tr. of Oral Arg. 21. But it defies belief that Congress was unaware, when it provided in 602(c) that "any overpayment to be refunded shall be reduced by the amount of any past-due support" (emphasis *86 added), that this would include refunds attributable to excess earned-income credits. Congress had previously expressly defined an excess earned-income credit as an "overpayment," in 601(b) of the Internal Revenue Code — the section immediately preceding the section to which Congress added the intercept provision.[7] What petitioner and the Second and Tenth Circuits are really claiming is that the intercept law should be read narrowly to avoid frustrating the goals of the earned-income credit program. The earned-income credit was enacted to reduce the disincentive to work caused by the imposition of Social Security taxes on earned income (welfare payments are not similarly taxed), to stimulate the economy by funneling funds to persons likely to spend the money immediately, and to provide relief for low-income families hurt by rising food and energy prices.[8] Each is an undeniably important objective. It is impossible, however, for us to say that these goals outweigh the goals served by the subsequently enacted tax-intercept program — securing child support from absent *865 parents whenever possible and reducing the number of families on welfare.[9] Congress of course could conclude that families eligible for earned-income credits have a more compelling claim to the funds involved than do either the States or non-AFDC families. But it is equally clear that Congress could have decided that the more pressing need was to alleviate the "devastating consequences for children and the taxpayers" of the epidemic of nonsupport. See Hearing before the Senate Committee on Finance on Spending Reduction Proposals, 97th Cong., 1st Sess., pt. 1, p. 3 (1981) (statement of Secretary Schweiker).[10] The ordering of competing social policies is a quintessentially legislative function. In light of Congress' decision to direct the interception of any overpayment otherwise refundable to a taxpayer, the Ninth Circuit correctly refused to "speculate that Congress intended otherwise." Its judgment, accordingly, is affirmed. It is so ordered.

Justice Burger

majority

Pinkus v. United States

https://www.courtlistener.com/opinion/109865/pinkus-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/109865/

1977-087

We granted certiorari in this case to decide whether the court's instructions in a trial for mailing obscene materials prior to 1973, and therefore tried under the Roth-Memoirs standards, could properly include children and sensitive persons within the definition of the community by whose standards obscenity is to be judged. We are also asked to determine whether the evidence supported a charge that members of deviant sexual groups may be considered in determining whether the materials appealed to prurient interest in sex; whether a charge of pandering was proper in light of the evidence; and whether comparison evidence proffered by petitioner should have been admitted on the issue of contemporary community standards. *295 Petitioner was convicted after a jury trial in United States District Court on 11 counts, charging that he had mailed obscene materials and advertising brochures for obscene materials in violation of 18 U.S. C. § 1461 (1976 ed.).[1] On appeal, his conviction was reversed on the grounds that the instructions to the jury defining obscenity had been cast under the standards established in Miller v. California, 413 U.S. 15 (1973), although the offenses charged occurred in 1971 when the standards announced in Roth v. United States, 354 U.S. 476 (1957), and particularized in Memoirs v. Massachusetts, 383 U.S. 413 (1966), were applicable. Accordingly, the case was remanded to the District Court for a new trial under the standards controlling in 1971. No. 73-2900 (CA9 Feb. 5, 1975, rehearing denied May 13, 1975); see Marks v. United States, 430 U.S. 188 (1977). On retrial in 1976, petitioner was again convicted on the same 11 counts. He was sentenced to terms of four years' imprisonment on each count, the terms to be served concurrently, and fined $500 on each count, for a total fine of $5,500. The Court of Appeals affirmed. 551 F.2d 1155 (CA9 1977). I The evidence presented by the Government in its case in chief consisted of materials mailed by the petitioner accompanied by a stipulation of facts which, among other things, recited that petitioner, knowing the contents of the mailings,[2] had "voluntarily and intentionally" used the mails on 11 occasions to deliver brochures illustrating sex books, magazines, *296 and films, and to deliver a sex magazine (one count) and a sex film (one count), with the intention that these were for the personal use of the recipients. From the stipulation and the record, it appears undisputed that the recipients were adults who resided both within and without the State of California. Because of the basis of our disposition of this case, it is unnecessary for us to review the contents of the exhibits in detail. The defense consisted of expert testimony and surveys offered to demonstrate that the materials did not appeal to prurient interest, were not in conflict with community standards, and had redeeming social value. Two films were proffered by the defense for the stated purpose of demonstrating that comparable material had received wide box office acceptance, thus demonstrating that the materials covered by the indictment were not obscene and complied with community standards. As a rebuttal witness, the Government presented an expert who testified as to what some of the exhibits depicted and that in his opinion they appealed to the prurient interest of the average person and to that of members of particular deviant groups. II In this Court, as in the Court of Appeals, petitioner challenges four parts of the jury instructions and the trial court's rejection of the comparison films. A. Instruction as to Children Petitioner challenges that part of the jury instruction which read: "In determining community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life." (Emphasis added.) *297 The Court of Appeals concluded that the inclusion of children was "unnecessary" and that it would "prefer that children be excluded from the court's [jury] instruction until the Supreme Court clearly indicates that inclusion is proper." 551 F.2d, at 1158. It correctly noted that this Court had been ambivalent on this point, having sustained the conviction in Roth, supra, where the instruction included children, and having intimated later in Ginzburg v. United States, 383 U.S. 463, 465 n. 3 (1966), that it did not necessarily approve the inclusion of "children" as part of the community instruction.[3] Reviewing the charge as a whole under the traditional standard of review, cogent arguments can be made that the inclusion of children was harmless error, see Hamling v. United States, 418 U.S. 87, 107 (1974); however, the courts, the bar, and the public are entitled to greater clarity than is offered by the ambiguous comment in Ginzburg on this score. Since this is a federal prosecution under an Act of Congress, we elect to take this occasion to make clear that children are not to be included for these purposes as part of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S. C. § 1461 (1976 ed.). Cf. Cupp v. Naughten, 414 U.S. 141, 146 (1973). Earlier in the same Term in which Roth was decided, the Court had reversed a conviction under a state statute which *298 made criminal the dissemination of a book "found to have a potentially deleterious influence on youth." Butler v. Michigan, 352 U.S. 380, 383 (1957). The statute was invalidated because its "incidence . . . is to reduce the adult population . . . to reading only what is fit for children." Ibid. The instruction given here, when read as a whole, did not have an effect so drastic as the Butler statute. But it may well be that a jury conscientiously striving to define the relevant community of persons, the "average person," Smith v. United States, 431 U.S. 291, 304 (1977), by whose standards obscenity is to be judged, would reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Cf. Ginsberg v. New York, 390 U.S. 629 (1968). There was no evidence that children were the intended recipients of the materials at issue here, or that petitioner had reason to know children were likely to receive the materials. Indeed, an affirmative representation was made that children were not involved in this case.[4] We therefore conclude it was error to instruct the jury that they were a part of the relevant community, and accordingly the conviction cannot stand. B. Instruction as to Sensitive Persons It does not follow, however, as petitioner contends, that the inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was error. The District Court's charge was: "Thus the brochures, magazines and film are not to be *299 judged on the basis of your personal opinion. Nor are they to be judged by their effect on a particularly sensitive or insensitive person or group in the community. You are to judge these materials by the standard of the hypothetical average person in the community, but in determining this average standard you must include the sensitive and the insensitive, in other words, you must include everyone in the community." (Emphasis added.) Petitioner's reliance on passages from Miller, 413 U. S., at 33, and Smith v. United States, supra, at 304, for the proposition that inclusion of sensitive persons in the relevant community was error is misplaced. In Miller we said, "[T]he primary concern with requiring a jury to apply the standard of `the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See Roth v. United States, supra, at 489." This statement was essentially repeated in Smith: "[T]he Court has held that § 1461 embodies a requirement that local rather than national standards should be applied. Hamling v. United States, supra. Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Hamling v. United States, supra; Miller v. California, supra; Roth v. United States, 354 U.S. 476 (1957). Both of these substantive limitations are passed on to the jury in the form of instructions." (Footnote omitted.) The point of these passages was to emphasize what was an issue central to Roth, that "judging obscenity by the effect of isolated passages upon the most susceptible persons, might well *300 encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press." 354 U.S., at 489.[5] But nothing in those opinions suggests that "sensitive" and "insensitive" persons, however defined, are to be excluded from the community as a whole for the purpose of deciding if materials are obscene. In the narrow and limited context of this case, the community includes all adults who constitute it, and a jury can consider them all in determining relevant community standards. The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of materials, not in including them along with all others in the community. See Mishkin v. New York, 383 U.S. 502, 508-509 (1966). Petitioner relies also on Hamling v. United States, 418 U.S. 87 (1974), to support his argument. Like Miller and Smith, supra, though, Hamling merely restated the by now familiar rule that jurors are not to base their decision about the materials on their "personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." 418 U.S., at 107. It is clear the trial court did not instruct the jury to focus on sensitive persons or groups. It explicitly said the jury should not use sensitive persons as a standard, and emphasized that in determining the "average person" standard the jury "must include the sensitive and the insensitive, in other words . . . everyone in the community." The difficulty of framing charges in this area is well recognized. But the term "average person" as used in this charge means what it usually means, and is no less clear than "reasonable person" used for generations in other contexts. Cf. Hamling v. United States, supra, at 104-105. Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical "average *301 person" he is to determine the collective view of the community, as best as it can be done. Simon E. Sobeloff, then Solicitor General, later Chief Judge of the United States Court of Appeals for the Fourth Circuit, very aptly stated the dilemma: "Is the so-called definition of negligence really a definition? What could be fuzzier than the instruction to the jury that negligence is a failure to observe that care which would be observed by a `reasonable man'—a chimerical creature conjured up to give an aura of definiteness where definiteness is not possible. . . . "Every man is likely to think of himself as the happy exemplification of `the reasonable man'; and so the standard he adopts in order to fulfill the law's prescription will resemble himself, or what he thinks he is, or what he thinks he should be, even if he is not. All these shifts and variations of his personal norm will find reflection in the verdict. The whole business is necessarily equivocal. This we recognize, but we are reconciled to the impossibility of discovering any form of words that will ring with perfect clarity and be automatically self-executing. Alas, there is no magic push-button in this or in other branches of the law." (Emphasis added.)[6] However one defines "sensitive" or "insensitive" persons, they are part of the community. The contention that the instruction was erroneous because it included sensitive persons is therefore without merit. C. Instruction as to Deviant Groups Challenge is made to the inclusion of "members of a deviant sexual group" in the charge which recited: "The first test to be applied, in determining whether a given picture is obscene, is whether the predominant *302 theme or purpose of the picture, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole or the prurient interest of members of a deviant sexual group at the time of mailing. . . . . . "In applying this test, the question involved is not how the picture now impresses the individual juror, but rather, considering the intended and probable recipients, how the picture would have impressed the average person, or a member of a deviant sexual group at the time they received the picture." Examination of some of the materials could lead to the reasonable conclusion that their prurient appeal would be more acute to persons of deviant persuasions, but it is equally clear they were intended to arouse the prurient interest of any reader or observer. Nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. See Hamling v. United States, supra, at 128-130. Many of the exhibits depicted aberrant sexual activities. These depictions were generally provided along with or as a part of the materials which apparently were thought likely to appeal to the prurient interest in sex of nondeviant persons. One of the mailings even provided a list of deviant sexual groups which the recipient was asked to mark to indicate interest in receiving the type of materials thought appealing to that particular group. Whether materials are obscene generally can be decided by viewing them; expert testimony is not necessary. Ginzburg v. United States, 383 U. S., at 465; Hamling v. United States, supra, at 100; see Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (STEWART, J., concurring). But petitioner claims that to support *303 an instruction on appeal to the prurient interest of deviants, the prosecution must come forward with evidence to guide the jury in its deliberations, since jurors cannot be presumed to know the reaction of such groups to stimuli as they would that of the average person. Concededly, in the past we have "reserve[d] judgment . . . on the extreme case . . . where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the [particular] prurient interest." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n. 6 (1973). But here we are not presented with that "extreme" case because the Government did in fact present expert testimony on rebuttal which, when combined with the exhibits themselves, sufficiently guided the jury. This instruction, therefore, was acceptable. D. Instruction as to Pandering Pandering is "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers." Ginzburg v. United States, supra, at 467, citing Roth v. United States, 354 U. S., at 495-496 (Warren, C. J., concurring). We have held, and reaffirmed, that to aid a jury in its determination of whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. Splawn v. California, 431 U.S. 595, 598 (1977); Hamling v. United States, 418 U. S., at 130. In essence, the Court has considered motivation relevant to the ultimate evaluation if the prosecution offers evidence of motivation. In this case the trial judge gave a pandering instruction to which the jury could advert if it found "this to be a close case" under the three part Roth-Memoirs test. This was not a so-called finding instruction which removed the jury's discretion; rather it permitted the jury to consider the touting descriptions along with the materials themselves to determine whether they were intended to appeal to the recipient's *304 prurient interest in sex, whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg, supra, at 466, if indeed the evidence admitted of any other purpose. And while it is true the Government offered no extensive evidence of the methods of production, editorial goals, if any, methods of operation, or means of delivery other than the mailings and the names, locations, and occupations of the recipients, the evidence was sufficient to trigger the Ginzburg pandering instruction. E. Exclusion of Comparison Evidence At trial petitioner proffered, and the trial judge rejected, two films which were said to have had considerable popular and commercial success when displayed in Los Angeles and elsewhere around the country. He proffered this assertedly comparable material as evidence that materials as explicit as his had secured community tolerance. Apparently the theory was that display of such movies had altered the level of community tolerance. On appeal the Court of Appeals began an inquiry into whether the comparison evidence should have been admitted. It held that exclusion of the evidence was proper as to the printed materials; but it abandoned the inquiry when, in reliance on the so-called concurrent-sentence doctrine, it concluded that even if the comparison evidence had been improperly excluded as to the count involving petitioner's film, the sentence would not be affected. It therefore exercised its discretion not to pass on the admissibility of the comparison evidence and hence did not review the conviction on the film count.[7] However, the sentences on the 11 counts were not in fact fully concurrent; petitioner's 11 prison terms of four years each were concurrent but the $500 fines on each of the counts *305 were cumulative, totaling $5,500, so that a separate fine of $500 was imposed on the film count. Petitioner thus had at least a pecuniary interest in securing review of his conviction on each of the counts. In light of our disposition of the case the issue of admissibility of the comparison evidence is not before us, and we leave it to the Court of Appeals to decide whether or to what extent such evidence is relevant to a jury's evaluation of community standards. Accordingly, the case is remanded to the Court of Appeals for further consideration consistent with this opinion. Reversed and remanded. MR.

We granted certiorari in this case to decide whether the court's instructions in a trial for mailing obscene materials prior to 3, and therefore tried under the -Memoirs standards, could properly include children and sensitive persons within the definition of the community by whose standards obscenity is to be judged. We are also asked to determine whether the evidence supported a charge that members of deviant sexual groups may be considered in determining whether the materials appealed to prurient interest in sex; whether a charge of pandering was proper in light of the evidence; and whether comparison evidence proffered by petitioner should have been admitted on the issue of contemporary community standards. *295 Petitioner was convicted after a jury trial in United District Court on 11 counts, charging that he had mailed obscene materials and advertising brochures for obscene materials in violation of 18 U.S. C. 1 (6 ed.).[1] On appeal, his conviction was reversed on the grounds that the instructions to the jury defining obscenity had been cast under the standards established in although the offenses charged occurred in 1 when the standards announced in and particularized in were applicable. Accordingly, the case was remanded to the District Court for a new trial under the standards controlling in 1. No. 73-2900 (CA9 Feb. 5, 5, rehearing denied May 13, 5); see On retrial in 6, petitioner was again convicted on the same 11 counts. He was sentenced to terms of four years' imprisonment on each count, the terms to be served concurrently, and fined $500 on each count, for a total fine of $5,500. The Court of Appeals affirmed. I The evidence presented by the Government in its case in chief consisted of materials mailed by the petitioner accompanied by a stipulation of facts which, among other things, recited that petitioner, knowing the contents of the mailings,[2] had "voluntarily and intentionally" used the mails on 11 occasions to deliver brochures illustrating sex books, magazines, *296 and films, and to deliver a sex magazine (one count) and a sex film (one count), with the intention that these were for the personal use of the recipients. From the stipulation and the record, it appears undisputed that the recipients were adults who resided both within and without the State of Because of the basis of our disposition of this case, it is unnecessary for us to review the contents of the exhibits in detail. The defense consisted of expert testimony and surveys offered to demonstrate that the materials did not appeal to prurient interest, were not in conflict with community standards, and had redeeming social value. Two films were proffered by the defense for the stated purpose of demonstrating that comparable material had received wide box office acceptance, thus demonstrating that the materials covered by the indictment were not obscene and complied with community standards. As a rebuttal witness, the Government presented an expert who testified as to what some of the exhibits depicted and that in his opinion they appealed to the prurient interest of the average person and to that of members of particular deviant groups. II In this Court, as in the Court of Appeals, petitioner challenges four parts of the jury instructions and the trial court's rejection of the comparison films. A. Instruction as to Children Petitioner challenges that part of the jury instruction which read: "In determining community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life." (Emphasis added.) *297 The Court of Appeals concluded that the inclusion of children was "unnecessary" and that it would "prefer that children be excluded from the court's [jury] instruction until the Supreme Court clearly indicates that inclusion is proper." It correctly noted that this Court had been ambivalent on this point, having sustained the conviction in where the instruction included children, and having intimated later in that it did not necessarily approve the inclusion of "children" as part of the community instruction.[3] Reviewing the charge as a whole under the traditional standard of review, cogent arguments can be made that the inclusion of children was harmless error, see ; however, the courts, the bar, and the public are entitled to greater clarity than is offered by the ambiguous comment in Ginzburg on this score. Since this is a federal prosecution under an Act of Congress, we elect to take this occasion to make clear that children are not to be included for these purposes as part of the "community" as that term relates to the "obscene materials" proscribed by 18 U.S. C. 1 (6 ed.). Cf. Earlier in the same Term in which was decided, the Court had reversed a conviction under a state statute which *298 made criminal the dissemination of a book "found to have a potentially deleterious influence on youth." The statute was invalidated because its "incidence is to reduce the adult population to reading only what is fit for children." The instruction given here, when read as a whole, did not have an effect so drastic as the Butler statute. But it may well be that a jury conscientiously striving to define the relevant community of persons, the "average person," by whose standards obscenity is to be judged, would reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Cf. There was no evidence that children were the intended recipients of the materials at issue here, or that petitioner had reason to know children were likely to receive the materials. Indeed, an affirmative representation was made that children were not involved in this case.[4] We therefore conclude it was error to instruct the jury that they were a part of the relevant community, and accordingly the conviction cannot stand. B. Instruction as to Sensitive Persons It does not follow, however, as petitioner contends, that the inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was error. The District Court's charge was: "Thus the brochures, magazines and film are not to be *299 judged on the basis of your personal opinion. Nor are they to be judged by their effect on a particularly sensitive or insensitive person or group in the community. You are to judge these materials by the standard of the hypothetical average person in the community, but in determining this average standard you must include the sensitive and the insensitive, in other words, you must include everyone in the community." (Emphasis added.) Petitioner's reliance on passages from and at for the proposition that inclusion of sensitive persons in the relevant community was error is misplaced. In we said, "[T]he primary concern with requiring a jury to apply the standard of `the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See" This statement was essentially repeated in : "[T]he Court has held that 1 embodies a requirement that local rather than national standards should be applied. Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Both of these substantive limitations are passed on to the jury in the form of instructions." (Footnote omitted.) The point of these passages was to emphasize what was an issue central to that "judging obscenity by the effect of isolated passages upon the most susceptible persons, might well *300 encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press." 354 U.S.,[5] But nothing in those opinions suggests that "sensitive" and "insensitive" persons, however defined, are to be excluded from the community as a whole for the purpose of deciding if materials are obscene. In the narrow and limited context of this case, the community includes all adults who constitute it, and a jury can consider them all in determining relevant community standards. The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of materials, not in including them along with all others in the community. See U.S. 502, Petitioner relies also on to support his argument. Like and though, Hamling merely restated the by now familiar rule that jurors are not to base their decision about the materials on their "personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." 418 U.S., at It is clear the trial court did not instruct the jury to focus on sensitive persons or groups. It explicitly said the jury should not use sensitive persons as a standard, and emphasized that in determining the "average person" standard the jury "must include the sensitive and the insensitive, in other words everyone in the community." The difficulty of framing charges in this area is well recognized. But the term "average person" as used in this charge means what it usually means, and is no less clear than "reasonable person" used for generations in other contexts. Cf. Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical "average *301 person" he is to determine the collective view of the community, as best as it can be done. Simon E. Sobeloff, then Solicitor General, later Chief Judge of the United Court of Appeals for the Fourth Circuit, very aptly stated the dilemma: "Is the so-called definition of negligence really a definition? What could be fuzzier than the instruction to the jury that negligence is a failure to observe that care which would be observed by a `reasonable man'—a chimerical creature conjured up to give an aura of definiteness where definiteness is not possible. "Every man is likely to think of himself as the happy exemplification of `the reasonable man'; and so the standard he adopts in order to fulfill the law's prescription will resemble himself, or what he thinks he is, or what he thinks he should be, even if he is not. All these shifts and variations of his personal norm will find reflection in the verdict. The whole business is necessarily equivocal. This we recognize, but we are reconciled to the impossibility of discovering any form of words that will ring with perfect clarity and be automatically self-executing. Alas, there is no magic push-button in this or in other branches of the law." (Emphasis added.)[6] However one defines "sensitive" or "insensitive" persons, they are part of the community. The contention that the instruction was erroneous because it included sensitive persons is therefore without merit. C. Instruction as to Deviant Groups Challenge is made to the inclusion of "members of a deviant sexual group" in the charge which recited: "The first test to be applied, in determining whether a given picture is obscene, is whether the predominant *302 theme or purpose of the picture, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole or the prurient interest of members of a deviant sexual group at the time of mailing. "In applying this test, the question involved is not how the picture now impresses the individual juror, but rather, considering the intended and probable recipients, how the picture would have impressed the average person, or a member of a deviant sexual group at the time they received the picture." Examination of some of the materials could lead to the reasonable conclusion that their prurient appeal would be more acute to persons of deviant persuasions, but it is equally clear they were intended to arouse the prurient interest of any reader or observer. Nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. See Many of the exhibits depicted aberrant sexual activities. These depictions were generally provided along with or as a part of the materials which apparently were thought likely to appeal to the prurient interest in sex of nondeviant persons. One of the mailings even provided a list of deviant sexual groups which the recipient was asked to mark to indicate interest in receiving the type of materials thought appealing to that particular group. Whether materials are obscene generally can be decided by viewing them; expert testimony is not necessary. U. S., at 465; ; see But petitioner claims that to support *303 an instruction on appeal to the prurient interest of deviants, the prosecution must come forward with evidence to guide the jury in its deliberations, since jurors cannot be presumed to know the reaction of such groups to stimuli as they would that of the average person. Concededly, in the past we have "reserve[d] judgment on the extreme case where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the [particular] prurient interest." Paris Adult Theatre But here we are not presented with that "extreme" case because the Government did in fact present expert testimony on rebuttal which, when combined with the exhibits themselves, sufficiently guided the jury. This instruction, therefore, was acceptable. D. Instruction as to Pandering Pandering is "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers." citing -496 We have held, and reaffirmed, that to aid a jury in its determination of whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. Splawn v. ; In essence, the Court has considered motivation relevant to the ultimate evaluation if the prosecution offers evidence of motivation. In this case the trial judge gave a pandering instruction to which the jury could advert if it found "this to be a close case" under the three part -Memoirs test. This was not a so-called finding instruction which removed the jury's discretion; rather it permitted the jury to consider the touting descriptions along with the materials themselves to determine whether they were intended to appeal to the recipient's * prurient interest in sex, whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg, if indeed the evidence admitted of any other purpose. And while it is true the Government offered no extensive evidence of the methods of production, editorial goals, if any, methods of operation, or means of delivery other than the mailings and the names, locations, and occupations of the recipients, the evidence was sufficient to trigger the Ginzburg pandering instruction. E. Exclusion of Comparison Evidence At trial petitioner proffered, and the trial judge rejected, two films which were said to have had considerable popular and commercial success when displayed in Los Angeles and elsewhere around the country. He proffered this assertedly comparable material as evidence that materials as explicit as his had secured community tolerance. Apparently the theory was that display of such movies had altered the level of community tolerance. On appeal the Court of Appeals began an inquiry into whether the comparison evidence should have been admitted. It held that exclusion of the evidence was proper as to the printed materials; but it abandoned the inquiry when, in reliance on the so-called concurrent-sentence doctrine, it concluded that even if the comparison evidence had been improperly excluded as to the count involving petitioner's film, the sentence would not be affected. It therefore exercised its discretion not to pass on the admissibility of the comparison evidence and hence did not review the conviction on the film count.[7] However, the sentences on the 11 counts were not in fact fully concurrent; petitioner's 11 prison terms of four years each were concurrent but the $500 fines on each of the counts *305 were cumulative, totaling $5,500, so that a separate fine of $500 was imposed on the film count. Petitioner thus had at least a pecuniary interest in securing review of his conviction on each of the counts. In light of our disposition of the case the issue of admissibility of the comparison evidence is not before us, and we leave it to the Court of Appeals to decide whether or to what extent such evidence is relevant to a jury's evaluation of community standards. Accordingly, the case is remanded to the Court of Appeals for further consideration consistent with this opinion. Reversed and remanded. MR.

Justice Powell

majority

Pennzoil Co. v. Texaco Inc.

https://www.courtlistener.com/opinion/111856/pennzoil-co-v-texaco-inc/

https://www.courtlistener.com/api/rest/v3/clusters/111856/

1986-065

The principal issue in this case is whether a federal district court lawfully may enjoin a plaintiff who has prevailed in a trial in state court from executing the judgment in its favor pending appeal of that judgment to a state appellate court. *4 I Getty Oil Co. and appellant Pennzoil Co. negotiated an agreement under which Pennzoil was to purchase about three-sevenths of Getty's outstanding shares for $110 a share. Appellee Texaco Inc. eventually purchased the shares for $128 a share. On February 8, 1984, Pennzoil filed a complaint against Texaco in the Harris County District Court, a state court located in Houston, Texas, the site of Pennzoil's corporate headquarters. The complaint alleged that Texaco tortiously had induced Getty to breach a contract to sell its shares to Pennzoil; Pennzoil sought actual damages of $7.53 billion and punitive damages in the same amount. On November 19, 1985, a jury returned a verdict in favor of Pennzoil, finding actual damages of $7.53 billion and punitive damages of $3 billion. The parties anticipated that the judgment, including prejudgment interest, would exceed $11 billion. Although the parties disagree about the details, it was clear that the expected judgment would give Pennzoil significant right under Texas law. By recording an abstract of a judgment in the real property records of any of the 254 counties in Texas, a judgment creditor can secure a lien on all of a judgment debtor's real property located in that county. See Tex. Prop. Code Ann. §§ 52.001-52.006 (1984). If a judgment creditor wishes to have the judgment enforced by state officials so that it can take possession of any of the debtor's assets, it may secure a writ of execution from the clerk of the court that issued the judgment. See Tex. Rule Civ. Proc. 627.[1] Rule 627 provides that such a writ usually can be obtained "after the expiration of thirty days from the time a *5 final judgment is signed."[2] But the judgment debtor "may suspend the execution of the judgment by filing a good and sufficient bond to be approved by the clerk." Rule 364(a). See Rule 368.[3] For a money judgment, "the amount of the bond . . . shall be at least the amount of the judgment, interest, and costs." Rule 364(b).[4] Even before the trial court entered judgment, the jury's verdict cast a serious cloud on Texaco's financial situation. The amount of the bond required by Rule 364(b) would have been more than $13 billion. It is clear that Texaco would not have been able to post such a bond. Accordingly, "the business and financial community concluded that Pennzoil would be able, under the lien and bond provisions of Texas law, to commence enforcement of any judgment entered on the verdict before Texaco's appeals had been resolved." App. to Juris. Statement A87 (District Court's Supplemental Finding of Fact 40, Jan. 10, 1986). The effects on Texaco were substantial: the price of its stock dropped markedly; it had difficulty obtaining credit; the rating of its bonds was lowered; and its trade creditors refused to sell it crude oil on customary terms. Id., at A90-A98 (District Court's Supplemental Findings of Fact 49-70). *6 Texaco did not argue to the trial court that the judgment, or execution of the judgment, conflicted with federal law. Rather, on December 10, 1985 — before the Texas court entered judgment[5] — Texaco filed this action in the United States District Court for the Southern District of New York in White Plains, New York, the site of Texaco's corporate headquarters. Texaco alleged that the Texas proceedings violated rights secured to Texaco by the Constitution and various federal statutes.[6] It asked the District Court to enjoin Pennzoil from taking any action to enforce the judgment. Pennzoil's response, and basic position, was that the District Court could not hear the case. First, it argued that the Anti-Injunction Act, 28 U.S. C. § 2283, barred issuance of an injunction. It further contended that the court should abstain *7 under the doctrine of Younger v. Harris, 401 U.S. 37 (1971). Third, it argued that the suit was in effect an appeal from the Texas trial court and that the District Court had no jurisdiction under the principles of Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The District Court rejected all of these arguments. 626 F. Supp. 250 (1986). It found the Anti-Injunction Act inapplicable because Texaco's complaint rested on 42 U.S. C. § 1983. See Mitchum v. Foster, 407 U.S. 225 (1972) (holding that § 1983 falls within the exceptions to the Anti-Injunction Act). It found Younger abstention unwarranted because it did not believe issuance of an injunction would "interfere with a state official's pursuit of a fundamental state interest." 626 F. Supp., at 260. As to the Rooker-Feldman doctrine, the court noted only that it was not "attempting to sit as a final or intermediate appellate state court as to the merits of the Texas action. . . . Our only intention is to assure Texaco its constitutional right to raise claims that we view as having a good chance of success." Id., at 254 (citation and footnote omitted). The District Court justified its decision to grant injunctive relief by evaluating the prospects of Texaco's succeeding in its appeal in the Texas state courts. It considered the merits of the various challenges Texaco had made before the Texas Court of Appeals and concluded that these challenges "present generally fair grounds for litigation." Ibid. It then evaluated the constitutionality of the Texas lien and bond requirements by applying the test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). It concluded that application of the lien and bond provisions effectively would deny Texaco a right to appeal. It thought that the private interests and the State's interests favored protecting Texaco's right to appeal. Relying on its view of the merits of the state-court appeal, the court found the risk of erroneous deprivation "quite severe." 626 F. Supp., at 257. Finally, *8 it viewed the administrative burden on the State as "slight." Ibid. In light of these factors, the District Court concluded that Texaco's constitutional claims had "a very clear probability of success." Id., at 258. Accordingly, the court issued a preliminary injunction.[7] On appeal, the Court of Appeals for the Second Circuit affirmed. 784 F.2d 1133 (1986). It first addressed the Rooker-Feldman doctrine and rejected the portion of the District Court's opinion that evaluated the merits of the state-court judgment. It held, however, that the doctrine did not completely bar the District Court's jurisdiction. It concluded that the due process and equal protection claims, not presented by Texaco to the Texas courts, were within the District Court's jurisdiction because they were not " `inextricably intertwined' " with the state-court action. Id., at 1144 (quoting District of Columbia Court of Appeals v. Feldman, supra, at 483, n. 16). Next, the court considered whether Texaco had stated a claim under § 1983. The question was whether Texaco's complaint sought to redress action taken "under color of" state law, 42 U.S. C. § 1983. The court noted that "Pennzoil *9 would have to act jointly with state agents by calling on state officials to attach and seize Texaco's assets." 784 F.2d, at 1145. Relying on its reading of Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the court concluded that the enjoined action would have been taken under color of state law, and thus that Texaco had stated a claim under § 1983. 784 F.2d, at 1145-1147. Because § 1983 is an exception to the Anti-Injunction Act, see Mitchum v. Foster, supra, the court also found that the Anti-Injunction Act did not prevent the District Court from granting the relief sought by Texaco. Finally, the court held that abstention was unnecessary. First, it addressed Pullman abstention, see Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941). It rejected that ground of abstention, holding that "the mere possibility that the Texas courts would find Rule 364 [concerning the supersedeas bond requirements] unconstitutional as applied does not call for Pullman abstention." 784 F.2d, at 1149. Next, it rejected Younger abstention. It thought that "[t]he state interests at stake in this proceeding differ in both kind and degree from those present in the six cases in which the Supreme Court held that Younger applied." Ibid. Moreover, it thought that Texas had failed to "provide adequate procedures for adjudication of Texaco's federal claims." Id., at 1150. Turning to the merits, it agreed with the District Court that Texaco had established a likelihood of success on its constitutional claims and that the balance of hardships favored Texaco. Accordingly, it affirmed the grant of injunctive relief.[8] Pennzoil filed a jurisdictional statement in this Court. We noted probable jurisdiction under 28 U.S. C. § 1254(2). 477 U.S. 903 (1986). We reverse. *10 II The courts below should have abstained under the principles of federalism enunciated in Younger v. Harris, 401 U.S. 37 (1971). Both the District Court and the Court of Appeals failed to recognize the significant interests harmed by their unprecedented intrusion into the Texas judicial system. Similarly, neither of those courts applied the appropriate standard in determining whether adequate relief was available in the Texas courts. A The first ground for the Younger decision was "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law." Id., at 43. The Court also offered a second explanation for its decision: "This underlying reason . . . is reinforced by an even more vital consideration, the notion of `comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. . . . The concept does not mean blind deference to `States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Id., at 44. *11 This concern mandates application of Younger abstention not only when the pending state proceedings are criminal, but also when certain civil proceedings are pending, if the State's interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government. E. g., Huffman v. Pursue, Ltd., 420 U.S. 592, 603-605 (1975). Another important reason for abstention is to avoid unwarranted determination of federal constitutional questions. When federal courts interpret state statutes in a way that raises federal constitutional questions, "a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time — thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless." Moore v. Sims, 442 U.S. 415, 428 (1979). See Trainor v. Hernandez, 431 U.S. 434, 445 (1977).[9] This concern has special significance in this case. Because Texaco chose not to present to the Texas courts the constitutional claims asserted in this case, it is impossible to be certain that the governing Texas statutes and procedural rules actually raise these claims. Moreover, the Texas Constitution contains an *12 "open courts" provision, Art. I, § 13,[10] that appears to address Texaco's claims more specifically than the Due Process Clause of the Fourteenth Amendment. Thus, when this case was filed in federal court, it was entirely possible that the Texas courts would have resolved this case on state statutory or constitutional grounds, without reaching the federal constitutional questions Texaco raises in this case.[11] As we have noted, Younger abstention in situations like this "offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests." Moore v. Sims, supra, at 429-430. Texaco's principal argument against Younger abstention is that exercise of the District Court's power did not implicate a "vital" or "important" state interest. Brief for Appellee 24-32. This argument reflects a misreading of our precedents. This Court repeatedly has recognized that the States have important interests in administering certain aspects of *13 their judicial systems. E. g., Trainor v. Hernandez, supra, at 441; Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432 (1982). In Juidice v. Vail, 430 U.S. 327 (1977), we held that a federal court should have abstained from adjudicating a challenge to a State's contempt process. The Court's reasoning in that case informs our decision today: "A State's interest in the contempt process, through which it vindicates the regular operation of its judicial system, so long as that system itself affords the opportunity to pursue federal claims within it, is surely an important interest. Perhaps it is not quite as important as is the State's interest in the enforcement of its criminal laws, Younger, supra, or even its interest in the maintenance of a quasi-criminal proceeding such as was involved in Huffman, supra. But we think it is of sufficiently great import to require application of the principles of those cases." Id., at 335. Our comments on why the contempt power was sufficiently important to justify abstention also are illuminating: "Contempt in these cases, serves, of course, to vindicate and preserve the private interests of competing litigants, . . . but its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory." Id., at 336, n. 12 (citations omitted). The reasoning of Juidice controls here. That case rests on the importance to the States of enforcing the orders and judgments of their courts. There is little difference between the State's interest in forcing persons to transfer property in response to a court's judgment and in forcing persons to respond to the court's process on pain of contempt. Both Juidice and this case involve challenges to the processes by which the State compels compliance with the judgments of its *14 courts.[12] Not only would federal injunctions in such cases interfere with the execution of state judgments, but they would do so on grounds that challenge the very process by which those judgments were obtained. So long as those challenges relate to pending state proceedings, proper respect for the ability of state courts to resolve federal questions presented in state-court litigation mandates that the federal court stay its hand.[13] B Texaco also argues that Younger abstention was inappropriate because no Texas court could have heard Texaco's constitutional claims within the limited time available to Texaco. But the burden on this point rests on the federal plaintiff to show "that state procedural law barred presentation of [its] claims." Moore v. Sims, 442 U. S., at 432. See Younger v. Harris, 401 U. S., at 45 (" `The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford *15 adequate protection' ") (quoting Fenner v. Boykin, 271 U.S. 240, 244 (1926)). Moreover, denigrations of the procedural protections afforded by Texas law hardly come from Texaco with good grace, as it apparently made no effort under Texas law to secure the relief sought in this case. Cf. Middlesex County Ethics Comm. v. Garden State Bar Assn., supra, at 435 (rejecting on similar grounds an assertion about the inhospitability of state procedures to federal claims). Article VI of the United States Constitution declares that "the Judges in every State shall be bound" by the Federal Constitution, laws, and treaties. We cannot assume that state judges will interpret ambiguities in state procedural law to bar presentation of federal claims. Cf. Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986) (assuming that a state administrative commission would "construe its own statutory mandate in the light of federal constitutional principles"). Accordingly, when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary. The "open courts" provision of the Texas Constitution, Article I, § 13, see nn. 10, 11, supra, has considerable relevance here. This provision has appeared in each of Texas' six Constitutions, dating back to the Constitution of the Republic of Texas in 1836. See LeCroy v. Hanlon, 713 S.W.2d 335, 339, and n. 4 (Tex. 1986). According to the Texas Supreme Court, the provision "guarantees all litigants . . . the right to their day in court." Id., at 341. "The common thread of [the Texas Supreme Court's] decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition." Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex. 1984). In light of this demonstrable and longstanding commitment of the Texas Supreme Court to provide *16 access to the state courts, we are reluctant to conclude that Texas courts would have construed state procedural rules to deny Texaco an effective opportunity to raise its constitutional claims. Against this background, Texaco's submission that the Texas courts were incapable of hearing its constitutional claims is plainly insufficient. Both of the courts below found that the Texas trial court had the power to consider constitutional challenges to the enforcement provisions.[14] The Texas Attorney General filed a brief in the proceedings below, arguing that such relief was available in the Texas courts. See Brief for Intervenor-Appellant in Nos. 86-7046, 86-7052 (CA2), pp. 32-33. Texaco has cited no statute or case clearly indicating that Texas courts lack such power.[15] Accordingly, Texaco has failed to meet its burden on this point.[16] *17 In sum, the lower courts should have deferred on principles of comity to the pending state proceedings. They erred in accepting Texaco's assertions as to the inadequacies of Texas procedure to provide effective relief. It is true that this case presents an unusual fact situation, never before addressed by the Texas courts, and that Texaco urgently desired prompt relief. But we cannot say that those courts, when this suit was filed, would have been any less inclined than a federal court to address and decide the federal constitutional claims. Because Texaco apparently did not give the Texas courts an opportunity to adjudicate its constitutional claims, and because Texaco cannot demonstrate that the Texas courts were not then open to adjudicate its claims, there is no basis for concluding that the Texas law and procedures were so deficient that Younger abstention is inappropriate. Accordingly, we conclude that the District Court should have abstained. III In this opinion, we have addressed the situation that existed on the morning of December 10, 1985, when this case was filed in the United States District Court for the Southern District of New York. We recognize that much has transpired in the Texas courts since then. Later that day, the Texas trial court entered judgment. See n. 5, supra. On February 12 of this year, the Texas Court of Appeals substantially affirmed the judgment. See ibid. We are not unmindful of the unique importance to Texaco of having its challenges to that judgment authoritatively considered and resolved. We of course express no opinion on the merits of *18 those challenges. Similarly, we express no opinion on the claims Texaco has raised in this case against the Texas bond and lien provisions, nor on the possibility that Texaco now could raise these claims in the Texas courts, see n. 16, supra. Today we decide only that it was inappropriate for the District Court to entertain these claims. If, and when, the Texas courts render a final decision on any federal issue presented by this litigation, review may be sought in this Court in the customary manner. IV The judgment of the Court of Appeals is reversed. The case is remanded to the District Court with instructions to vacate its order and dismiss the complaint. The judgment of this Court shall issue forthwith. It is so ordered.

The principal issue in this case is whether a federal district court lawfully may enjoin a plaintiff who has prevailed in a trial in state court from executing the judgment in its favor pending appeal of that judgment to a state appellate court. *4 I Getty Oil Co. and appellant Pennzoil Co. negotiated an agreement under which Pennzoil was to purchase about three-sevenths of Getty's outstanding shares for $0 a share. Appellee Texaco Inc. eventually purchased the shares for $128 a share. On February 8, 1984, Pennzoil filed a complaint against Texaco in the County District Court, a state court located in Houston, Texas, the site of Pennzoil's corporate headquarters. The complaint alleged that Texaco tortiously had induced Getty to breach a contract to sell its shares to Pennzoil; Pennzoil sought actual damages of $7.3 billion and punitive damages in the same amount. On November 19, 198, a jury returned a verdict in favor of Pennzoil, finding actual damages of $7.3 billion and punitive damages of $3 billion. The parties anticipated that the judgment, including prejudgment interest, would exceed $ billion. Although the parties disagree about the details, it was clear that the expected judgment would give Pennzoil significant right under Texas law. By recording an abstract of a judgment in the real property records of any of the 24 counties in Texas, a judgment creditor can secure a lien on all of a judgment debtor's real property located in that county. See If a judgment creditor wishes to have the judgment enforced by state officials so that it can take possession of any of the debtor's assets, it may secure a writ of execution from the clerk of the court that issued the judgment. See Tex. Rule Civ. Proc. 627.[1] Rule 627 provides that such a writ usually can be obtained "after the expiration of thirty days from the time a * final judgment is signed."[2] But the judgment debtor "may suspend the execution of the judgment by filing a good and sufficient bond to be approved by the clerk." Rule 364(a). See Rule 368.[3] For a money judgment, "the amount of the bond shall be at least the amount of the judgment, interest, and costs." Rule 364(b).[4] Even before the trial court entered judgment, the jury's verdict cast a serious cloud on Texaco's financial situation. The amount of the bond required by Rule 364(b) would have been more than $13 billion. It is clear that Texaco would not have been able to post such a bond. Accordingly, "the business and financial community concluded that Pennzoil would be able, under the lien and bond provisions of Texas law, to commence enforcement of any judgment entered on the verdict before Texaco's appeals had been resolved." App. to Juris. Statement A87 The effects on Texaco were substantial: the price of its stock dropped markedly; it had difficulty obtaining credit; the rating of its bonds was lowered; and its trade creditors refused to sell it crude oil on customary terms. at A90-A98 (District Court's Supplemental Findings of Fact 49-70). *6 Texaco did not argue to the trial court that the judgment, or execution of the judgment, conflicted with federal law. Rather, on December 10, 198 — before the Texas court entered judgment[] — Texaco filed this action in the United States District Court for the Southern District of New York in White Plains, New York, the site of Texaco's corporate headquarters. Texaco alleged that the Texas proceedings violated rights secured to Texaco by the Constitution and various federal statutes.[6] It asked the District Court to enjoin Pennzoil from taking any action to enforce the judgment. Pennzoil's response, and basic position, was that the District Court could not hear the case. First, it argued that the Anti-Injunction Act, 28 U.S. C. 2283, barred issuance of an injunction. It further contended that the court should abstain *7 under the doctrine of Third, it argued that the suit was in effect an appeal from the Texas trial court and that the District Court had no jurisdiction under the principles of and District of Columbia Court of The District Court rejected all of these arguments. It found the Anti-Injunction Act inapplicable because Texaco's complaint rested on 42 U.S. C. See (holding that 1983 falls within the exceptions to the Anti-Injunction Act). It found Younger abstention unwarranted because it did not believe issuance of an injunction would "interfere with a state official's pursuit of a fundamental state interest." As to the Rooker- doctrine, the court noted only that it was not "attempting to sit as a final or intermediate appellate state court as to the merits of the Texas action. Our only intention is to assure Texaco its constitutional right to raise claims that we view as having a good chance of success." The District Court justified its decision to grant injunctive relief by evaluating the prospects of Texaco's succeeding in its appeal in the Texas state courts. It considered the merits of the various challenges Texaco had made before the Texas Court of Appeals and concluded that these challenges "present generally fair grounds for litigation." It then evaluated the constitutionality of the Texas lien and bond requirements by applying the test articulated in It concluded that application of the lien and bond provisions effectively would deny Texaco a right to appeal. It thought that the private interests and the State's interests favored protecting Texaco's right to appeal. Relying on its view of the merits of the state-court appeal, the court found the risk of erroneous deprivation "quite severe." Finally, *8 it viewed the administrative burden on the State as "slight." In light of these factors, the District Court concluded that Texaco's constitutional claims had "a very clear probability of success." Accordingly, the court issued a preliminary injunction.[7] On appeal, the Court of Appeals for the Second Circuit affirmed. It first addressed the Rooker- doctrine and rejected the portion of the District Court's opinion that evaluated the merits of the state-court judgment. It held, however, that the doctrine did not completely bar the District Court's jurisdiction. It concluded that the due process and equal protection claims, not presented by Texaco to the Texas courts, were within the District Court's jurisdiction because they were not " `inextricably intertwined' " with the state-court action. (quoting District of Columbia Court of ). Next, the court considered whether Texaco had stated a claim under The question was whether Texaco's complaint sought to redress action taken "under color of" state law, 42 U.S. C. The court noted that "Pennzoil *9 would have to act jointly with state agents by calling on state officials to attach and seize Texaco's assets." Relying on its reading of the court concluded that the enjoined action would have been taken under color of state law, and thus that Texaco had stated a claim under -47. Because 1983 is an exception to the Anti-Injunction Act, see the court also found that the Anti-Injunction Act did not prevent the District Court from granting the relief sought by Texaco. Finally, the court held that abstention was unnecessary. First, it addressed Pullman abstention, see Railroad Comm'n of It rejected that ground of abstention, holding that "the mere possibility that the Texas courts would find Rule 364 [concerning the supersedeas bond requirements] unconstitutional as applied does not call for Pullman abstention." Next, it rejected Younger abstention. It thought that "[t]he state interests at stake in this proceeding differ in both kind and degree from those present in the six cases in which the Supreme Court held that Younger applied." Moreover, it thought that Texas had failed to "provide adequate procedures for adjudication of Texaco's federal claims." Turning to the merits, it agreed with the District Court that Texaco had established a likelihood of success on its constitutional claims and that the balance of hardships favored Texaco. Accordingly, it affirmed the grant of injunctive relief.[8] Pennzoil filed a jurisdictional statement in this Court. We noted probable jurisdiction under 28 U.S. C. 124(2). We reverse. *10 II The courts below should have abstained under the principles of federalism enunciated in Both the District Court and the Court of Appeals failed to recognize the significant interests harmed by their unprecedented intrusion into the Texas judicial system. Similarly, neither of those courts applied the appropriate standard in determining whether adequate relief was available in the Texas courts. A The first ground for the Younger decision was "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law." The Court also offered a second explanation for its decision: "This underlying reason is reinforced by an even more vital consideration, the notion of `comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. The concept does not mean blind deference to `States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." * This concern mandates application of Younger abstention not only when the pending state proceedings are criminal, but also when certain civil proceedings are pending, if the State's interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government. E. g., Another important reason for abstention is to avoid unwarranted determination of federal constitutional questions. When federal courts interpret state statutes in a way that raises federal constitutional questions, "a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time — thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless." See[9] This concern has special significance in this case. Because Texaco chose not to present to the Texas courts the constitutional claims asserted in this case, it is impossible to be certain that the governing Texas statutes and procedural rules actually raise these claims. Moreover, the Texas Constitution contains an *12 "open courts" provision, Art. I, 13,[10] that appears to address Texaco's claims more specifically than the Due Process Clause of the Fourteenth Amendment. Thus, when this case was filed in federal court, it was entirely possible that the Texas courts would have resolved this case on state statutory or constitutional grounds, without reaching the federal constitutional questions Texaco raises in this case.[] As we have noted, Younger abstention in situations like this "offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests." Texaco's principal argument against Younger abstention is that exercise of the District Court's power did not implicate a "vital" or "important" state interest. Brief for Appellee 24-32. This argument reflects a misreading of our precedents. This Court repeatedly has recognized that the States have important interests in administering certain aspects of *13 their judicial systems. E. g., 1; Middlesex County Ethics In we held that a federal court should have abstained from adjudicating a challenge to a State's contempt process. The Court's reasoning in that case informs our decision today: "A State's interest in the contempt process, through which it vindicates the regular operation of its judicial system, so long as that system itself affords the opportunity to pursue federal claims within it, is surely an important interest. Perhaps it is not quite as important as is the State's interest in the enforcement of its criminal laws, Younger, or even its interest in the maintenance of a quasi-criminal proceeding such as was involved in But we think it is of sufficiently great import to require application of the principles of those cases." Our comments on why the contempt power was sufficiently important to justify abstention also are illuminating: "Contempt in these cases, serves, of course, to vindicate and preserve the private interests of competing litigants, but its purpose is by no means spent upon purely private concerns. It stands in aid of the authority of the judicial system, so that its orders and judgments are not rendered nugatory." The reasoning of Juidice controls here. That case rests on the importance to the States of enforcing the orders and judgments of their courts. There is little difference between the State's interest in forcing persons to transfer property in response to a court's judgment and in forcing persons to respond to the court's process on pain of contempt. Both Juidice and this case involve challenges to the processes by which the State compels compliance with the judgments of its *14 courts.[12] Not only would federal injunctions in such cases interfere with the execution of state judgments, but they would do so on grounds that challenge the very process by which those judgments were obtained. So long as those challenges relate to pending state proceedings, proper respect for the ability of state courts to resolve federal questions presented in state-court litigation mandates that the federal court stay its hand.[13] B Texaco also argues that Younger abstention was inappropriate because no Texas court could have heard Texaco's constitutional claims within the limited time available to Texaco. But the burden on this point rests on the federal plaintiff to show "that state procedural law barred presentation of [its] claims." 442 U. S., 2. See ). Moreover, denigrations of the procedural protections afforded by Texas law hardly come from Texaco with good grace, as it apparently made no effort under Texas law to secure the relief sought in this case. Cf. Middlesex County Ethics Article VI of the United States Constitution declares that "the Judges in every State shall be bound" by the Federal Constitution, laws, and treaties. We cannot assume that state judges will interpret ambiguities in state procedural law to bar presentation of federal claims. Cf. Ohio Civil Rights Accordingly, when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary. The "open courts" provision of the Texas Constitution, Article I, 13, see nn. 10, has considerable relevance here. This provision has appeared in each of Texas' six Constitutions, dating back to the Constitution of the Republic of Texas in 1836. See According to the Texas Supreme Court, the provision "guarantees all litigants the right to their day in court." "The common thread of [the Texas Supreme Court's] decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition." In light of this demonstrable and longstanding commitment of the Texas Supreme Court to provide * access to the state courts, we are reluctant to conclude that Texas courts would have construed state procedural rules to deny Texaco an effective opportunity to raise its constitutional claims. Against this background, Texaco's submission that the Texas courts were incapable of hearing its constitutional claims is plainly insufficient. Both of the courts below found that the Texas trial court had the power to consider constitutional challenges to the enforcement provisions.[14] The Texas Attorney General filed a brief in the proceedings below, arguing that such relief was available in the Texas courts. See Brief for Intervenor-Appellant in Nos. 86-7046, 86-702 (CA2), pp. 32-33. Texaco has cited no statute or case clearly indicating that Texas courts lack such power.[1] Accordingly, Texaco has failed to meet its burden on this point.[] *17 In sum, the lower courts should have deferred on principles of comity to the pending state proceedings. They erred in accepting Texaco's assertions as to the inadequacies of Texas procedure to provide effective relief. It is true that this case presents an unusual fact situation, never before addressed by the Texas courts, and that Texaco urgently desired prompt relief. But we cannot say that those courts, when this suit was filed, would have been any less inclined than a federal court to address and decide the federal constitutional claims. Because Texaco apparently did not give the Texas courts an opportunity to adjudicate its constitutional claims, and because Texaco cannot demonstrate that the Texas courts were not then open to adjudicate its claims, there is no basis for concluding that the Texas law and procedures were so deficient that Younger abstention is inappropriate. Accordingly, we conclude that the District Court should have abstained. III In this opinion, we have addressed the situation that existed on the morning of December 10, 198, when this case was filed in the United States District Court for the Southern District of New York. We recognize that much has transpired in the Texas courts since then. Later that day, the Texas trial court entered judgment. See n. On February 12 of this year, the Texas Court of Appeals substantially affirmed the judgment. See We are not unmindful of the unique importance to Texaco of having its challenges to that judgment authoritatively considered and resolved. We of course express no opinion on the merits of *18 those challenges. Similarly, we express no opinion on the claims Texaco has raised in this case against the Texas bond and lien provisions, nor on the possibility that Texaco now could raise these claims in the Texas courts, see n. Today we decide only that it was inappropriate for the District Court to entertain these claims. If, and when, the Texas courts render a final decision on any federal issue presented by this litigation, review may be sought in this Court in the customary manner. IV The judgment of the Court of Appeals is reversed. The case is remanded to the District Court with instructions to vacate its order and dismiss the complaint. The judgment of this Court shall issue forthwith. It is so ordered.

Justice Ginsburg

dissenting

United States v. Tohono O’odham Nation

https://www.courtlistener.com/opinion/215412/united-states-v-tohono-oodham-nation/

https://www.courtlistener.com/api/rest/v3/clusters/215412/

2010-041

I dissent from the Court’s immoderate reading of 28 U.S. C. §1500 and would affirm the Federal Circuit’s judgment. According to the Court, the Court of Federal Claims (CFC) lacks subject-matter jurisdiction over the Tohono O’odham Nation’s (Nation) claim because the Tribe was simultaneously pursuing in the D. C. District Court an action with “a common factual basis.” Ante, at 1. It mat ters not, the Court holds, that to gain complete relief, the Nation had to launch two suits, for neither of the two courts whose jurisdiction the Tribe invoked could alone provide full redress. See ante, at 8–9. The Court concludes that “claim” or “cause of action,” terms the Court considers synonymous as used in §1500,* —————— * “ ‘Cause of action,’ ” the Court simultaneously states, “is the more technical term.” Ante, at 5. If “more technical” means more precise, clear or certain, the Court is incorrect. See United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67–68 (1933) (“A ‘cause of action’ may mean one thing for one purpose and something different for another.”). In its discourse on the term, the Court has fallen into an old error; the drafters of the Federal Rules endeavored to “eliminate the unfortunate rigidity and confusion surrounding the words ‘cause of action.’ ” 5 C. Wright & A. Miller, Federal Practice and Procedure §1216, p. 207 (3d ed. 2004). Today’s invocation of a supposed particular or exact meaning for the phrase risks reviving that confusion. 2 UNITED STATES v. TOHONO O’ODHAM NATION GINSBURG, J., dissenting see ante, at 5, refers to “operative facts,” and not to the remedies a plaintiff seeks. See ante, at 4. Section 1500 speaks of “the time when the cause of action . . . arose,” a time antedating the commencement of suit. The Court infers, therefore, that a “claim” or “cause of action” is discrete from a pleading’s request for relief. See ante, at 4. In fact, however, entitlement to relief is essential to the existence of a claim or cause of action, which arises when a person suffers a harm capable of judicial redress. See 2 J. Story, Equity Jurisprudence §1521a, p. 741 (8th ed. 1861) (“[T]he cause of action . . . arises when . . . the party has a right to apply to a court . . . for relief.”). A plaintiff may not, §1500 instructs, petition both the CFC and a district court, invoking in each a distinct legal theory appropriate to the forum, but seeking redress for a single injury. When Congress bars a plaintiff from obtain ing complete relief in one suit, however, and does not call for an election of remedies, Congress is most sensibly read to have comprehended that the operative facts give rise to two discrete claims. Casman v. United States, 135 Ct. Cl. 647 (1956), as JUSTICE SOTOMAYOR spells out, see ante, at 5, is the paradigm case. There, a discharged federal em ployee, complaining of wrongful termination, sought rein statement in a district-court action and backpay in the Court of Claims. Section 1500 does not stand in the way, the Court of Claims held in Casman, when the plaintiff suffered two distinct injuries, for which she seeks discrete forms of relief within the exclusive competence of different courts. See 135 Ct. Cl., at 649–650 (claim for backpay “entirely different” from claim for reinstatement). The Federal Circuit, in my view, rightly adhered to Casman in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (1994) (en banc), and rightly did so in this case. While I agree with much of JUSTICE SOTOMAYOR’s opin ion concurring in the judgment, I do not agree with her conclusion that §1500 bars the Nation’s CFC action. Cite as: 563 U. S. ____ (2011) 3 GINSBURG, J., dissenting JUSTICE SOTOMAYOR joins the Court’s judgment (although not the Court’s reasoning) because the “Tohono O’odham Nation seeks in the [CFC] . . . some of the same relief on the same facts as it does in its pending District Court action.” Ante, at 1 (emphasis added). But to the extent that “the Nation’s two actions seek overlapping relief,” ibid., a disposition less harsh would be in order. Ordinar ily, when a plaintiff’s allegations and demands for relief are excessive, her complaint is not instantly dismissed on that account. Instead, she may seek leave to trim her pleading, permission a court “should freely give . . . when justice so requires.” Rule 15(a)(2) (CFC 2010). Cf. Rule 54(c) (CFC 2010) (judgment, other than default, need not conform to demand for relief, but “should grant the relief to which each party is entitled”). As JUSTICE SOTOMAYOR and the Nation recognize, to avoid both duplication and the running of the statute of limitations, the CFC suit could be stayed while the com panion District Court action proceeds. See ante, at 11; Brief for Respondent 35. That is a common practice when a prior action is pending. See Pennsylvania R. Co. v. United States, 363 U.S. 202, 204–206 (1960) (instructing Court of Claims to stay pending proceedings to enable litigant to obtain District Court review of relevant agency order); Creppel v. United States, 41 F.3d 627, 633 (CA Fed. 1994) (“[T]he Court of Federal Claims may stay a takings action pending completion of a related action in a district court.”). Why is this Court not positioned to direct the CFC to disregard requests for relief simultaneously sought in a district-court action, or at least to recognize that an amended CFC complaint could save the case? I see no impediment to either course, in §1500 or any other law or rule

I dissent from the Court’s immoderate reading of 28 U.S. C. and would affirm the Federal Circuit’s judgment. According to the Court, the Court of Federal Claims (CFC) lacks subject-matter jurisdiction over the Tohono O’odham Nation’s (Nation) claim because the Tribe was simultaneously pursuing in the D. C. District Court an action with “a common factual basis.” Ante, at 1. It mat ters not, the Court holds, that to gain complete relief, the Nation had to launch two suits, for neither of the two courts whose jurisdiction the Tribe invoked could alone provide full redress. See ante, at 8–9. The Court concludes that “claim” or “cause of action,” terms the Court considers synonymous as used in* —————— * “ ‘Cause of action,’ ” the Court simultaneously states, “is the more technical term.” Ante, at 5. If “more technical” means more precise, clear or certain, the Court is incorrect. See United (“A ‘cause of action’ may mean one thing for one purpose and something different for another.”). In its discourse on the term, the Court has fallen into an old error; the drafters of the Federal Rules endeavored to “eliminate the unfortunate rigidity and confusion surrounding the words ‘cause of action.’ ” 5 C. Wright & A. Miller, Federal Practice and Procedure p. 207 (3d ed. 2004). Today’s invocation of a supposed particular or exact meaning for the phrase risks reviving that confusion. 2 UNITED STATES v. TOHONO O’ODHAM NATION GINSBURG, J., dissenting see ante, at 5, refers to “operative facts,” and not to the remedies a plaintiff seeks. See ante, at 4. Section 1500 speaks of “the time when the cause of action arose,” a time antedating the commencement of suit. The Court infers, therefore, that a “claim” or “cause of action” is discrete from a pleading’s request for relief. See ante, at 4. In fact, however, entitlement to relief is essential to the existence of a claim or cause of action, which arises when a person suffers a harm capable of judicial redress. See 2 J. Story, Equity Jurisprudence p. 741 (8th ed. 1861) (“[T]he cause of action arises when the party has a right to apply to a court for relief.”). A plaintiff may not, instructs, petition both the CFC and a district court, invoking in each a distinct legal theory appropriate to the forum, but seeking redress for a single injury. When Congress bars a plaintiff from obtain ing complete relief in one suit, however, and does not call for an election of remedies, Congress is most sensibly read to have comprehended that the operative facts give rise to two discrete claims. Casman v. United States, 135 Ct. Cl. 647 (1956), as JUSTICE SOTOMAYOR spells out, see ante, at 5, is the paradigm case. There, a discharged federal em ployee, complaining of wrongful termination, sought rein statement in a district-court action and backpay in the Court of Claims. Section 1500 does not stand in the way, the Court of Claims held in Casman, when the plaintiff suffered two distinct injuries, for which she seeks discrete forms of relief within the exclusive competence of different courts. See –650 (claim for backpay “entirely different” from claim for reinstatement). The Federal Circuit, in my view, rightly adhered to Casman in Loveladies Harbor, (1994) (en banc), and rightly did so in this case. While I agree with much of JUSTICE SOTOMAYOR’s opin ion concurring in the judgment, I do not agree with her conclusion that bars the Nation’s CFC action. Cite as: 563 U. S. (2011) 3 GINSBURG, J., dissenting JUSTICE SOTOMAYOR joins the Court’s judgment (although not the Court’s reasoning) because the “Tohono O’odham Nation seeks in the [CFC] some of the same relief on the same facts as it does in its pending District Court action.” Ante, at 1 (emphasis added). But to the extent that “the Nation’s two actions seek overlapping relief,” ibid., a disposition less harsh would be in order. Ordinar ily, when a plaintiff’s allegations and demands for relief are excessive, her complaint is not instantly dismissed on that account. Instead, she may seek leave to trim her pleading, permission a court “should freely give when justice so requires.” Rule 15(a)(2) (CFC 2010). Cf. Rule 54(c) (CFC 2010) (judgment, other than default, need not conform to demand for relief, but “should grant the relief to which each party is entitled”). As JUSTICE SOTOMAYOR and the Nation recognize, to avoid both duplication and the running of the statute of limitations, the CFC suit could be stayed while the com panion District Court action proceeds. See ante, at 11; Brief for Respondent 35. That is a common practice when a prior action is pending. See Pennsylvania R. Co. v. United States, (instructing Court of Claims to stay pending proceedings to enable litigant to obtain District Court review of relevant agency order); (CA Fed. 1994) (“[T]he Court of Federal Claims may stay a takings action pending completion of a related action in a district court.”). Why is this Court not positioned to direct the CFC to disregard requests for relief simultaneously sought in a district-court action, or at least to recognize that an amended CFC complaint could save the case? I see no impediment to either course, in or any other law or rule

Justice Ginsburg

majority

Amchem Products, Inc. v. Windsor

https://www.courtlistener.com/opinion/118142/amchem-products-inc-v-windsor/

https://www.courtlistener.com/api/rest/v3/clusters/118142/

1996-089

This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here. The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court's orders, holding that the class certification failed to satisfy Rule 23's requirements in several critical respects. We affirm the Court of Appeals' judgment. I A The settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See Georgine v. Amchem Products, Inc., 83 F.3d 610, 618, and n. 2 (CA3 1996) (citing commentary). A United States Judicial Conference *598 Ad Hoc Committee on Asbestos Litigation, appointed by The Chief Justice in September 1990, described facets of the problem in a 1991 report: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015. "The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991). Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See id., at 3, 27-35; see also id., at 42 (dissenting statement of Hogan, J.) (agreeing that "a national solution is the only answer" and suggesting "passage by Congress of an administrative claims procedure similar to the Black Lung legislation"). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 (Mar. 12, 1991). To this date, no congressional response has emerged. *599 In the face of legislative inaction, the federal courts—lacking authority to replace state tort systems with a national toxic tort compensation regime—endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district allasbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991).[1] The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks—later appointed, along with Motley's law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs' Steering Committee. Counsel for the Center for Claims Resolution (CCR), the consortium of *600 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants' Steering Committee.[2] Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a "means of resolving . . . future cases." Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) ("primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims," including claims that might be filed in the future). In November 1991, the Defendants' Steering Committee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution by plaintiffs' counsel among asbestos-exposed individuals. The Plaintiffs' Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue "a workable administrative system for the handling of future claims." Id., at 270. To that end, CCR counsel approached the lawyers who had headed the Plaintiffs' Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs' Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims—claimants the parties *601 to this suit call "inventory" plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent "some kind of protection for the future." Id., at 294; see also id. , at 295 (CCR communicated to the inventory plaintiffs' attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases). Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants. Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs' lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel's province—plaintiffs without already pending lawsuits.[3] C The class action thus instituted was not intended to be litigated. Rather, within the space of a single day, January 15, 1993, the settling parties—CCR defendants and the representatives of the plaintiff class described below—presented to the District Court a complaint, an answer, a proposed *602 settlement agreement, and a joint motion for conditional class certification.[4] The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestosrelated lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposed— occupationally or through the occupational exposure of a spouse or household member—to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed.[5] Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of *603 CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole. The complaint invoked the District Court's diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants' answer denied the principal allegations of the complaint and asserted 11 affirmative defenses. A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, 1993, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain "other cancers" (colonrectal, laryngeal, esophageal, and stomach cancer); and "non-malignant conditions" (asbestosis and bilateral pleural thickening). Persons with "exceptional" medical claims— claims that do not fall within the four described diagnostic categories—may in some instances qualify for compensation, but the settlement caps the number of "exceptional" claims CCR must cover. For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claimants. *604 Payments under the settlement are not adjustable for inflation. Mesothelioma claimants—the most highly compensated category—are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it also establishes procedures to resolve disputes over medical diagnoses and levels of compensation. Compensation above the fixed ranges may be obtained for "extraordinary" claims. But the settlement places both numerical caps and dollar limits on such claims.[6] The settlement also imposes "case flow maximums," which cap the number of claims payable for each disease in a given year. Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called "exposure-only" plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. "Pleural" claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are also excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas. Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to withdraw *605 from the settlement after ten years. A small number of class members—only a few per year—may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL—CIO and class counsel. Class counsel are to receive attorneys' fees in an amount to be approved by the District Court. D On January 29, 1993, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants' asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that "[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable." Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, also of the Eastern District of Pennsylvania, "the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class." See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ibid.[7] *606 In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see Carlough v. Amchem Products, Inc., 834 F. Supp. 1437, 1467-1468 (ED Pa. 1993), and he approved the settling parties' elaborate plan for giving notice to the class, see Carlough v. Amchem Products, Inc., 158 F. R. D. 314, 336 (ED Pa. 1993). The courtapproved notice informed recipients that they could exclude themselves from the class, if they so chose, within a threemonth opt-out period. Objectors raised numerous challenges to the settlement. They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325, 331-332. He also found that adequate notice had been given to class members, see id., at 332-334, and that final class certification under Rule 23(b)(3) was appropriate, see id., at 315. As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)'s numerosity requirement,[8] see ibid., a matter no one debates. The *607 Rule 23(a)(2) and (b)(3) requirements of commonality[9] and preponderance[10] were also satisfied, the District Court held, in that "[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3)." Id., at 316. The District Court held next that the claims of the class representatives were "typical" of the class as a whole, a requirement of Rule 23(a)(3),[11] and that, as Rule 23(b)(3) demands,[12] the class settlement was "superior" to other methods of adjudication. See ibid. Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirement.[13] Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single *608 class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class. Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See id., at 317-319, 326-332. Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See id., at 318-319. Reasoning that the representative plaintiffs "have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any, or several categories," the District Court found "no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment." Id. , at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See Georgine v. Amchem Products, Inc., 878 F. Supp. 716, 726-727 (ED Pa. 1994). The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See 83 F.3d 610 (1996). E The Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised "serious concerns." Id., at 623. However, the court observed, "the jurisdictional issues in this case would not exist but for the [class-action] certification." Ibid. Turning to the classcertification *609 issues and finding them dispositive, the Third Circuit declined to decide other questions. On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, cert. denied, 516 U.S. 824 (1995) (hereinafter GM Trucks), which held that although a class action may be certified for settlement purposes only, Rule 23(a)'s requirements must be satisfied as if the case were going to be litigated. 55 F.3d, at 799-800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See 83 F.3d, at 625. But cf.In re Asbestos Litigation, 90 F.3d 963, 975-976, and n. 8 (CA5 1996), cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met "without taking into account the settlement," 83 F.3d, at 626, the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the case under Rule 23 criteria. See id., at 630-634. The Third Circuit recognized that Rule 23(a)(2)'s "commonality" requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class "predominate over" other questions. The court therefore trained its attention on the "predominance" inquiry. See id., at 627. The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See id., at 626, 630. But uncommon questions abounded. In contrast to mass torts involving a single accident, class members in this case were exposed to different asbestoscontaining products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See id., at 626, 628. "These factual differences," the Third Circuit explained, "translate[d] into significant legal differences." Id., at 627. State law governed and varied widely *610 on such critical issues as "viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury." Ibid.[14] "[T]he number of uncommon issues in this humongous class action," the Third Circuit concluded, ibid., barred a determination, under existing tort law, that common questions predominated, see id., at 630. The Court of Appeals next found that "serious intra-class conflicts preclude[d] th[e] class from meeting the adequacy of representation requirement" of Rule 23(a)(4). Ibid. Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: "`[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.' " Ibid. (quoting 157 F. R. D., at 317). "But the settlement does more than simply provide a general recovery fund," the Court of Appeals immediately added; "[r]ather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others." 83 F.3d, at 630. In the Third Circuit's view, the "most salient" divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ibid. They would also seek sturdy back-end opt-out rights and "causation provisions that can keep pace with changing *611 science and medicine, rather than freezing in place the science of 1993." Id., at 630-631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See id., at 631. These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposureonly claimants. The Third Circuit next rejected the District Court's determination that the named plaintiffs were "typical" of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: "both look to the potential for conflicts in the class." Id., at 632. Evident conflict problems, the court said, led it to hold that "no set of representatives can be `typical' of this class." Ibid. The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex "could not be tried." Ibid. The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See id., at 633. "A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable," the Court of Appeals said. Id., at 634. The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court's antisuit injunction. Id., at 635. Judge Wellford concurred, "fully subscrib[ing] to the decision of Judge Becker that the plaintiffs in this case ha[d] not met the requirements of Rule 23." Ibid. He added that in his view, named exposure-only plaintiffs had no standing to pursue the *612 suit in federal court, for their depositions showed that "[t]hey claimed no damages and no present injury." Id., at 638. We granted certiorari, 519 U.S. 957 (1996), and now affirm. II Objectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable case or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries. Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors also argue that exposureonly claimants did not meet the then-current amount-incontroversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U.S. C. § 1332(a). As earlier recounted, see supra, at 608, the Third Circuit declined to reach these issues because they "would not exist but for the [class-action] certification." 83 F.3d, at 623. We agree that "[t]he class certification issues are dispositive," ibid.; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (declining to resolve definitively question whether petitioners had standing because mootness issue was dispositive of the case). We therefore follow the path taken by the Court of Appeals, mindful that *613 Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure "shall not abridge, enlarge or modify any substantive right," 28 U.S. C. § 2072(b). See also Fed. Rule Civ. Proc. 82 ("rules shall not be construed to extend . . . the [subject-matter] jurisdiction of the United States district courts").[15] III To place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 375-400 (1967) (hereinafter Kaplan, Continuing Work). Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality (named parties' claims or defenses "are typical . . . of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interests of the class"). *614 In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," Fed. Rule Civ. Proc. 23(b)(1)(A), or would "as a practical matter be dispositive of the interests" of nonparty class members "or substantially impair or impede their ability to protect their interests," Rule 23(b)(1)(B). Rule 23(b)(1)(A) "takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners)." Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, "limited fund" cases, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) "build[s] on experience mainly, but not exclusively, in the civil rights field"). In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was "the most adventuresome" innovation. See Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be *615 excluded. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1777, p. 517 (2d ed. 1986) (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) "opt-out" class actions superseded the former "spurious" class action, so characterized because it generally functioned as a permissive joinder ("opt-in") device. See 7A Wright, Miller, & Kane § 1753, at 28-31, 42-44; see also Adv. Comm. Notes, 28 U.S. C. App., p. 695. Framed for situations in which "class-action treatment is not as clearly called for" as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit "may nevertheless be convenient and desirable." Adv. Comm. Notes, 28 U.S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members"; and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover cases "in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Ibid. Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the case before it is accepted as a class action. . . ." Kaplan, Continuing Work 390. Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court's "close look" at the predominance and superiority criteria: *616 "(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action." In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each case, courts would "consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit." Adv. Comm. Notes, 28 U.S. C. App., p. 698. They elaborated: "The interests of individuals in conducting separate lawsuits may be so strong as to callfor denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable." Ibid. See also Kaplan, Continuing Work 391 ("Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." (footnote omitted)). As the Third Circuit observed in the instant case: "Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]"; each "ha[s] a substantial stake in making individual decisions on whether and when to settle." 83 F.3d, at 633. *617 While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion: "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997). To alert class members to their right to "opt out" of a (b)(3) class, Rule 23 instructs the court to "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. Rule Civ. Proc. 23(c)(2); see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-177 (1974) (individual notice to class members identifiable through reasonable effort is mandatory in (b)(3) actions; requirement may not be relaxed based on high cost). No class action may be "dismissed or compromised without [court] approval," preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the Rule's instruction without elaboration: "Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action." Adv. Comm. Notes, 28 U.S. C. App., p. 699. In the decades since the 1966 revision of Rule 23, classaction practice has become ever more "adventuresome" as a means of coping with claims too numerous to secure their *618 "just, speedy, and inexpensive determination" one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices (1995); Schwarzer, Settlement of Mass Tort Class Actions: Order out of Chaos, 80 Cornell L. Rev. 837 (1995). Among current applications of Rule 23(b)(3), the "settlement only" class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (1996) (noting large number of such cases in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23's certification criteria. In GM Trucks, 55 F. 3d, at 799-800, and in the instant case, 83 F.3d, at 624-626, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos Litigation, 90 F.3d, at 975 (CA5) ("in settlement class context, common issues arise from the settlement itself") (citing H. Newberg & A. Conte, 2 Newberg on Class Actions § 11.28, p. 11-58 (3d ed. 1992)); White v. National Football League, 41 F.3d 402, 408 (CA8 1994) ("adequacy of class representation . . . is ultimately determined by the settlement itself"), cert. denied, 515 U.S. 1137 (1995); In re A. H. Robins Co., 880 F.2d 709, 740 (CA4) ("[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification"), cert. denied sub nom. Anderson *619 v. Aetna Casualty & Surety Co., 493 U.S. 959 (1989); Malchman v. Davis, 761 F.2d 893, 900 (CA2 1985) (certification appropriate, in part, because "the interests of the members of the broadened class in the settlement agreement were commonly held"), cert. denied, 475 U.S. 1143 (1986). A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, "even though the requirements of subdivision (b)(3) might not be met for purposes of trial." Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Aug. 1996) (Request for Comment). In response to the publication of this proposal, voluminous public comments—many of them opposed to, or skeptical of, the amendment—were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors (May 28, 1996); Letter from Paul D. Carrington (May 21, 1996). The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed. IV We granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." 83 F.3d, at 626 (quoting GM Trucks, 55 F. 3d, at 799). That statement, petitioners urge, is incorrect. We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect. But, as we earlier observed, see supra, at 609, the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees' *620 interests inadequately represented. See 83 F.3d, at 630— 631. The Third Circuit's close inspection of the settlement in that regard was altogether proper. Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule— those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).[16] And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S. C. §§ 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure "shall not abridge . . . any substantive right." § 2072(b). Rule 23(e), on settlement of class actions, reads in its entirety: "A class action shall not be dismissed or compromised *621 without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." This prescription was designed to function as an additional requirement, not a superseding direction, for the "class action" to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed. The safeguards provided by the Rule 23(a) and (b) classqualifying criteria, we emphasize, are not impractical impediments—checks shorn of utility—in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot kind—class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness. Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1379-1380 (1995), and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348, 1352 (CA7 1996) (Easterbrook, J., dissenting from denial of rehearing en banc) (parties "may even put one over on the court, in a staged performance"), cert. denied, 520 U.S. 1204 (1997). *622 Federal courts, in any case, lack authority to substitute for Rule 23's certification criteria a standard never adopted— that if a settlement is "fair," then certification is proper. Applying to this case criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why—with or without a settlement on the table— the sprawling class the District Court certified does not satisfy Rule 23's requirements.[17] A We address first the requirement of Rule 23(b)(3) that "[common] questions of law or fact . . . predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., at 316. The settling parties also contend that the settlement's fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement. The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see supra, *623 at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement.[18] The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518— 519.[19] The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members "from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise." See 7B Wright, Miller, & Kane § 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context. The District Court also relied upon this commonality: "The members of the class have all been exposed to asbestos products supplied by the defendants . . . ." 157 F. R. D., at 316. Even if Rule 23(a)'s commonality requirement may be satisfied *624 by that shared experience, the predominance criterion is far more demanding. See 83 F.3d, at 626-627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard. The Third Circuit highlighted the disparate questions undermining class cohesion in this case: "Class members were exposed to different asbestoscontaining products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only a symptomatic plural changes, while others suffer from lung cancer, disabling asbestos is, or from mesothelioma . . . . Each has a different history of cigarette smoking, a factor that complicates the causation inquiry. "The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will also incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories." Id., at 626. Differences in state law, the Court of Appeals observed, compound these disparities. See id., at 627 (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 823 (1985)). No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos Litigation, 90 F. 3d, at 976, n. 8 ("We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and *625 their varying medical expenses, smoking histories, and family situations."). Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U.S. C. App., p. 697; see also supra, at 615, 616. Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" cases are likely to present "significant questions, not only of damages but of liability and defenses of liability, . . . affecting the individuals in different ways." Adv. Comm. Notes, 28 U.S. C. App., p. 697. And the Committee advised that such cases are "ordinarily not appropriate" for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970's, have been certifying such cases in increasing number. See Resnik, From "Cases" to "Litigation," 54 Law & Contemp. Prob. 5, 17-19 (Summer 1991) (describing trend). The Committee's warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit's opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design. B Nor can the class approved by the District Court satisfy Rule 23(a)(4)'s requirement that the named parties "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-158, n. 13 (1982). "[A] class representative must be part of the class and `possess *626 the same interest and suffer the same injury' as the class members." East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)).[20] As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 331 (1980) ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes."). The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court's finding that petitioners' assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. Although *627 this is not a "limited fund" case certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. For example, as earlier described, see supra, at 604-605, the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation. The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point: "[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups." In re Joint Eastern and South- ern Dist. Asbestos Litigation, 982 F.2d 721, 742-743 (1992), modified on reh'g sub nom. In re Findley, 993 F.2d 7 (1993). The Third Circuit found no assurance here—either in the terms of the settlement or in the structure of the negotiations—that the named plaintiffs operated under a proper understanding of their representational responsibilities. See *628 83 F. 3d, at 630-631. That assessment, we conclude, is on the mark. C Impediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. Id., at 633; cf. In re Asbestos Litigation, 90 F. 3d, at 999-1000 (Smith, J., dissenting). Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out. Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category—future spouses and children of asbestos victims—could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure. Because we have concluded that the class in this case cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F.3d, at 633-634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous. V The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos *629 exposure.[21] Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this case exemplifies, the rulemakers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste." C. Wright, Law of Federal Courts 508 (5th ed. 1994); cf.83 F. 3d, at 634 (suggesting resort to less bold aggregation techniques, including more narrowly defined class certifications). * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is Affirmed. Justice O'Connor took no part in the consideration or decision of this case. Justice Breyer, with whom Justice Stevens joins, concurring in part and dissenting in part. Although I agree with the Court's basic holding that "[s]ettlement is relevant to a class certification," ante, at 619, I find several problems in its approach that lead me to a different conclusion. First, I believe that the need for settlement in this mass tort case, with hundreds of thousands of lawsuits, is greater than the Court's opinion suggests. Second, I would give more weight than would the majority to settlement-related issues for purposes of determining whether common issues predominate. Third, I am uncertain about the Court's determination of adequacy of representation, *630 and do not believe it appropriate for this Court to second-guess the District Court on the matter without first having the Court of Appeals consider it. Fourth, I am uncertain about the tenor of an opinion that seems to suggest the settlement is unfair. And fifth, in the absence of further review by the Court of Appeals, I cannot accept the majority's suggestions that "notice" is inadequate. These difficulties flow from the majority's review of what are highly fact-based, complex, and difficult matters, matters that are inappropriate for initial review before this Court. The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. See Califano v. Yamasaki, 442 U.S. 682, 703 (1979). Indeed, the District Court's certification decision rests upon more than 300 findings of fact reached after five weeks of comprehensive hearings. Accordingly, I do not believe that we should in effect set aside the findings of the District Court. That court is far more familiar with the issues and litigants than is a court of appeals or are we, and therefore has "broad power and discretion . . . with respect to matters involving the certification" of class actions. Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979); cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) (district court better situated to make fact-dependent legal determinations in Rule 11 context). I do not believe that we can rely upon the Court of Appeals' review of the District Court record, for that review, and its ultimate conclusions, are infected by a legal error. E. g., Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (CA3 1996) (holding that "considered as a litigation class, " the class cannot meet Federal Rule of Civil Procedure 23's requirements (emphasis added)). There is no evidence that the Court of Appeals at any point considered the settlement as something that would help the class meet Rule 23. I find, moreover, the fact-related issues presented here sufficiently *631 close to warrant further detailed appellate court review under the correct legal standard. Cf. Reno v. Bossier Parish School Bd., 520 U.S. 471, 486 (1997). And I shall briefly explain why this is so. I First, I believe the majority understates the importance of settlement in this case. Between 13 and 21 million workers have been exposed to asbestos in the workplace—over the past 40 or 50 years—but the most severe instances of such exposure probably occurred three or four decades ago. See Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation, pp. 6-7 (Mar. 1991) (Judicial Conference Report); App. 781-782, 801; B. Castleman, Asbestos: Medical and Legal Aspects 787-788 (4th ed. 1996). This exposure has led to several hundred thousand lawsuits, about 15% of which involved claims for cancer and about 30% for asbestos is. See In re Joint Eastern and Southern Dist. Asbestos Litigation, 129 B.R. 710, 936-937 (E and SD N. Y. 1991). About half of the suits have involved claims for plural thickening and plaques—the harmfulness of which is apparently controversial. (One expert below testified that they "don't transform into cancer" and are not "predictor[s] of future disease," App. 781.) Some of those who suffer from the most serious injuries, however, have received little or no compensation. In re School Asbestos Litigation, 789 F.2d 996, 1000 (CA3 1986); see also Edley & Weiler, Asbestos: A MultiBillion-Dollar Crisis, 30 Harv. J. Legis. 383, 384, 393 (1993) ("[U]p to one-half of asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments (and substantial costs) even though the individual litigants will never become impaired"). These lawsuits have taken up more than 6% of all federal civil filings in one recent year, and are subject to a delay that is twice that of other civil suits. Judicial Conference Report 7, 10-11. *632 Delays, high costs, and a random pattern of noncompensation led the Judicial Conference Ad Hoc Committee on Asbestos Litigation to transfer all federal asbestos personalinjury cases to the Eastern District of Pennsylvania in an effort to bring about a fair and comprehensive settlement. It is worth considering a few of the Committee's comments. See Judicial Conference Report 2 ("`Decisions concerning thousands of deaths, millions of injuries, and billions of dollars are entangled in a litigation system whose strengths have increasingly been overshadowed by its weaknesses.' The ensuing five years have seen the picture worsen: increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgments—if ever obtained—can be collected" (quoting Rand Corporation Institute for Civil Justice)); id., at 13 ("The transaction costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease." "[O]f each asbestos litigation dollar, 61 cents is consumed in transaction costs . . . . Only 39 cents were paid to the asbestos victims" (citing Rand finding)); id., at 12 ("Delays also can increase transaction costs, especially the attorneys' fees paid by defendants at hourly rates. These costs reduce either the insurance fund or the company's assets, thereby reducing the funds available to pay pending and future claimants. By the end of the trial phase in [one case], at least seven defendants had declared bankruptcy (as a result of asbestos claims generally")); see also J. Weinstein, Individual Justice in Mass Tort Litigation 155 (1995); Edley & Weiler, supra, at 389-395. Although the transfer of the federal asbestos cases did not produce a general settlement, it was intertwined with and led to a lengthy year-long negotiation between the cochairs of the Plaintiff's Multi-District Litigation Steering Committee (elected by the Plaintiff's Committee Members and approved by the District Court) and the 20 asbestos defendants who are before us here. Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266-267 (ED Pa. 1994); App. 660-662. *633 These "protracted and vigorous" negotiations led to the present partial settlement, which will pay an estimated $1.3 billion and compensate perhaps 100,000 class members in the first 10 years. 157 F. R. D., at 268, 287. "The negotiations included a substantial exchange of information" between class counsel and the 20 defendant companies, including "confidential data" showing the defendants' historical settlement averages, numbers of claims filed and settled, and insurance resources. Id., at 267. "Virtually no provision" of the settlement "was not the subject of significant negotiation," and the settlement terms "changed substantially" during the negotiations. Ibid. In the end, the negotiations produced a settlement that, the District Court determined based on its detailed review of the process, was "the result of armslength adversarial negotiations by extraordinarily competent and experienced attorneys." Id., at 335. The District Court, when approving the settlement, concluded that it improved the plaintiffs' chances of compensation and reduced total legal fees and other transaction costs by a significant amount. Under the previous system, according to the court, "[t]he sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease." Ibid. The court believed the settlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses. I mention this matter because it suggests that the settlement before us is unusual in terms of its importance, both to many potential plaintiffs and to defendants, and with respect to the time, effort, and expenditure that it reflects. All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong. I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court, understandably, but as we now hold, mistakenly, believed that settlement *634 was not a relevant (and, as I would say, important) consideration. Second, the majority, in reviewing the District Court's determination that common "issues of fact and law predominate," says that the predominance "inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement." Ante, at 623 (footnote omitted). I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion. If the majority means that these presettlement questions are what matters, then how does it reconcile its statement with its basic conclusion that "settlement is relevant" to class certification, or with the numerous lower court authority that says that settlement is not only relevant, but important? See, e. g., In re A. H. Robins Co., 880 F.2d 709, 740 (CA4), cert. denied sub nom. Anderson v. Aetna Casualty & Surety Co., 493 U.S. 959 (1989); In re Beef Industry Antitrust Litigation, 607 F.2d 167, 177— 178 (CA5 1979), cert. denied sub nom. Iowa Beef Processors, Inc. v. Meat Price Investigators Assn., 452 U.S. 905 (1981); 2 H. Newberg & A. Conte, Newberg on Class Actions § 11.27, pp. 11-54 to 11-55 (3d ed. 1992). Nor do I understand how one could decide whether common questions "predominate" in the abstract—without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement. Every group of human beings, after all, has some features in common, and some that differ. How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow? Such guideposts help it decide whether, in light of common concerns and differences, certification will achieve Rule 23's basic objective—"economies of time, effort, and expense." Advisory Committee's Notes on Fed. Rule Civ. Proc. 23(b)(3), 28 U.S. C. App., p. 697. As this Court has previously observed, "sometimes it may be necessary for the court to probe behind the pleadings before coming to *635 rest on the certification question." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); see also 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1785, p. 107, and n. 34 (1986). I am not saying that the "settlement counts only one way." Ante, at 620, n. 16. Rather, the settlement may simply "add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint" and courts "can and should" look to it to enhance the "ability . . . to make informed certification decisions." In re Asbestos Litigation, 90 F.3d 963, 975 (CA5 1996). The majority may mean that the District Court gave too much weight to the settlement. But I am not certain how it can reach that conclusion. It cannot rely upon the Court of Appeals, for that court gave no positive weight at all to the settlement. Nor can it say that the District Court relied solely on "a common interest in a fair compromise," ante, at 623, for the District Court did not do so. Rather, it found the settlement relevant because it explained the importance of the class plaintiffs' common features and common interests. The court found predominance in part because: "The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., at 316. The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue—a proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common. That is to say, the settlement underscored the importance *636 of (a) the common fact of exposure, (b) the common interest in receiving some compensation for certain rather than running a strong risk of no compensation, and (c) the common interest in avoiding large legal fees, other transaction costs, and delays. Ibid. Of course, as the majority points out, there are also important differences among class members. Different plaintiffs were exposed to different products for different times; each has a distinct medical history and a different history of smoking; and many cases arise under the laws of different States. The relevant question, however, is how much these differences matter in respect to the legal proceedings that lie ahead. Many, if not all, toxic tort class actions involve plaintiffs with such differences. And the differences in state law are of diminished importance in respect to a proposed settlement in which the defendants have waived all defenses and agreed to compensate all those who were injured. Id., at 292. These differences might warrant subclasses, though subclasses can have problems of their own. "There can be a cost in creating more distinct subgroups, each with its own representation. . . . [T]he more subclasses created, the more severe conflicts bubble to the surface and inhibit settlement.. . . The resources of defendants and, ultimately, the community must not be exhausted by protracted litigation." Weinstein, Individual Justice in Mass Tort Litigation, at 66. Or these differences may be too serious to permit an effort at group settlement. This kind of determination, as I have said, is one that the law commits to the discretion of the district court—reviewable for abuse of discretion by a court of appeals. I believe that we are far too distant from the litigation itself to reweigh the fact-specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind. *637 Third, the majority concludes that the "representative parties" will not "fairly and adequately protect the interests of the class." Rule 23(a)(4). It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because "for the currently injured, the critical goal is generous immediate payments," a goal that "tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future." Ante, at 626. I agree that there is a serious problem, but it is a problem that often exists in toxic tort cases. See Weinstein, supra, at 64 (noting that conflict "between present and future claimants" "is almost always present in some form in mass tort cases because long latency periods are needed to discover injuries"); see also Judicial Conference Report 34-35 ("Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a `real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled' " (citation omitted)). And it is a problem that potentially exists whenever a single defendant injures several plaintiffs, for a settling plaintiff leaves fewer assets available for the others. With class actions, at least, plaintiffs have the consolation that a district court, thoroughly familiar with the facts, is charged with the responsibility of ensuring that the interests of no class members are sacrificed. But this Court cannot easily safeguard such interests through review of a cold record. "What constitutes adequate representation is a question of fact that depends on the circumstances of each case." 7A Wright, Miller, & Kane, Federal Practice and Procedure § 1765, at 271. That is particularly so when, as here, there is an unusual baseline, namely, the "`real and present danger' " described by the Judicial Conference Report above. The majority's use of the *638 lack of an inflation adjustment as evidence of inadequacy of representation for future plaintiffs, ante, at 626-627, is one example of this difficulty. An inflation adjustment might not be as valuable as the majority assumes if most plaintiffs are old and not worried about receiving compensation decades from now. There are, of course, strong arguments as to its value. But that disagreement is one that this Court is poorly situated to resolve. Further, certain details of the settlement that are not discussed in the majority opinion suggest that the settlement may be of greater benefit to future plaintiffs than the majority suggests. The District Court concluded that future plaintiffs receive a "significant value" from the settlement due to a variety of its items that benefit future plaintiffs, such as: (1) tolling the statute of limitations so that class members "will no longer be forced to file premature lawsuits or risk their claims being time-barred"; (2) waiver of defenses to liability; (3) payment of claims, if and when members become sick, pursuant to the settlement's compensation standards, which avoids "the uncertainties, long delays and high transaction costs [including attorney's fees] of the tort system"; (4) "some assurance that there will be funds available if and when they get sick," based on the finding that each defendant "has shown an ability to fund the payment of all qualifying claims" under the settlement; and (5) the right to additional compensation if cancer develops (many settlements for plaintiffs with noncancerous conditions bar such additional claims). 157 F. R. D., at 292. For these reasons, and others, the District Court found that the distinction between present and future plaintiffs was "illusory." Id., at 317-318. I do not know whether or not the benefits are more or less valuable than an inflation adjustment. But I can certainly recognize an argument that they are. (To choose one more brief illustration, the majority chastises the settlement for extinguishing loss-of-consortium claims, ante, at 627, 628, but *639 does not note that, as the District Court found, the "defendants' historical [settlement] averages, upon which the compensation values are based, include payments for loss of consortium claims, and, accordingly, the Compensation Schedule is not unfair for this ascribed reason," 157 F. R. D., at 278.) The difficulties inherent in both knowing and understanding the vast number of relevant individual fact-based determinations here counsel heavily in favor of deference to district court decisionmaking in Rule 23 decisions. Or, at the least, making certain that appellate court review has taken place with the correct standard in mind. Fourth, I am more agnostic than is the majority about the basic fairness of the settlement. Ante, at 625-628. The District Court's conclusions rested upon complicated factual findings that are not easily cast aside. It is helpful to consider some of them, such as its determination that the settlement provided "fair compensation . . . while reducing the delays and transaction costs endemic to the asbestos litigation process" and that "the proposed class action settlement is superior to other available methods for the fair and efficient resolution of the asbestos-related personal injury claims of class members." 157 F. R. D., at 316 (citation omitted); see also id., at 335 ("The inadequate tort system has demonstrated that the lawyers are well paid for their services but the victims are not receiving speedy and reasonably inexpensive resolution of their claims. Rather, the victims' recoveries are delayed, excessively reduced by transaction costs and relegated to the impersonal group trials and mass consolidations. The sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease. Indeed, these unimpaired victims have, in many states, been forced to assert their claims prematurely or risk giving up all rights to future compensation for any future lung cancer or mesothelioma. The plan which this Court approves today will correct that unfair result for the class members and the . . . defendants"); *640 id., at 279, 280 (settlement "will result in less delay for asbestos claimants than that experienced in the present tort system" and will "result in the CCR defendants paying more claims at a faster rate, than they have ever paid before"); id., at 292; Edley & Weiler, 30 Harv. J. Legis., at 405, 407 (finding that "[t]here are several reasons to believe that this settlement secures important gains for both sides" and that they "firmly endorse the fairness and adequacy of this settlement"). Indeed, the settlement has been endorsed as fair and reasonable by the AFL—CIO (and its Building and Construction Trades Department), which represents a "`substantial percentage' " of class members, 157 F. R. D., at 325, and which has a role in monitoring implementation of the settlement, id., at 285. I do not intend to pass judgment upon the settlement's fairness, but I do believe that these matters would have to be explored in far greater depth before I could reach a conclusion about fairness. And that task, as I have said, is one for the Court of Appeals. Finally, I believe it is up to the District Court, rather than this Court, to review the legal sufficiency of notice to members of the class. The District Court found that the plan to provide notice was implemented at a cost of millions of dollars and included hundreds of thousands of individual notices, a wide-ranging television and print campaign, and significant additional efforts by 35 international and national unions to notify their members. Id., at 312-313, 336. Every notice emphasized that an individual did not currently have to be sick to be a class member. And in the end, the District Court was "confident" that Rule 23 and due process requirements were satisfied because, as a result of this "extensive and expensive notice procedure," "over six million" individuals "received actual notice materials," and "millions more" were reached by the media campaign. Id., at 312, 333, 336. Although the majority, in principle, is reviewing a Court of Appeals' conclusion, it seems to me that its opinion might call into question the fact-related determinations of the District *641 Court. Ante, at 628. To the extent that it does so, I disagree, for such findings cannot be so quickly disregarded. And I do not think that our precedents permit this Court to do so. See Reiter, 442 U. S., at 345; Yamasaki, 442 U. S., at 703. II The issues in this case are complicated and difficult. The District Court might have been correct. Or not. Subclasses might be appropriate. Or not. I cannot tell. And I do not believe that this Court should be in the business of trying to make these fact-based determinations. That is a job suited to the district courts in the first instance, and the courts of appeals on review. But there is no reason in this case to believe that the Court of Appeals conducted its prior review with an understanding that the settlement could have constituted a reasonably strong factor in favor of class certification. For this reason, I would provide the courts below with an opportunity to analyze the factual questions involved in certification by vacating the judgment, and remanding the case for further proceedings.

This concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here. The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court's orders, holding that the class certification failed to satisfy Rule 23's requirements in several critical respects. We affirm the Court of Appeals' judgment. I A The settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See A United States Judicial Conference *598 Ad Hoc Committee on Asbestos appointed by The Chief Justice in September 1990, described facets of the problem in a report: "[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015. "The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether." Report of The Judicial Conference Ad Hoc Committee on Asbestos 2-3 Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See ; see (agreeing that "a national solution is the only answer" and suggesting "passage by Congress of an administrative claims procedure similar to the Black Lung legislation"). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 To this date, no congressional response has emerged. *599 In the face of legislative inaction, the federal courts—lacking authority to replace state tort systems with a national toxic tort compensation regime—endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos s, urged the Judicial Panel on Multidistrict (MDL Panel), to consolidate in a single district allasbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos s then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected s were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability (No. VI),[1] The order aggregated pending s only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed. B After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks—later appointed, along with Motley's law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs' Steering Committee. Counsel for the Center for Claims Resolution (CCR), the consortium of *600 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants' Steering Committee.[2] Although the MDL Panel order collected, transferred, and consolidated only s already commenced in federal courts, settlement negotiations included efforts to find a "means of resolving future s." Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see 157 F. R. D. 246, 266 ("primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims," including claims that might be filed in the future). In November the Defendants' Steering Committee made an offer designed to settle all pending and future asbestos s by providing a fund for distribution by plaintiffs' counsel among asbestos-exposed individuals. The Plaintiffs' Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue "a workable administrative system for the handling of future claims." To that end, CCR counsel approached the lawyers who had headed the Plaintiffs' Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs' Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims—claimants the parties *601 to this suit call "inventory" plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory s absent "some kind of protection for the future." ; see at 295 (CCR communicated to the inventory plaintiffs' attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending s). Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants. Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs' lawyers CCR had approached, launched this exclusively involving persons outside the MDL Panel's province—plaintiffs without already pending lawsuits.[3] C The class action thus instituted was not intended to be Rather, within the space of a single day, January 15, the settling parties—CCR defendants and the representatives of the plaintiff class described below—presented to the District Court a complaint, an answer, a proposed *602 settlement agreement, and a joint motion for conditional class certification.[4] The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestosrelated lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposed— occupationally or through the occupational exposure of a spouse or household member—to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed.[5] Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of *603 CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole. The complaint invoked the District Court's diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants' answer denied the principal allegations of the complaint and asserted 11 affirmative defenses. A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain "other cancers" (colonrectal, laryngeal, esophageal, and stomach cancer); and "non-malignant conditions" (asbestosis and bilateral pleural thickening). Persons with "exceptional" medical claims— claims that do not fall within the four described diagnostic categories—may in some instances qualify for compensation, but the settlement caps the number of "exceptional" claims CCR must cover. For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claimants. *604 Payments under the settlement are not adjustable for inflation. Mesothelioma claimants—the most highly compensated category—are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it establishes procedures to resolve disputes over medical diagnoses and levels of compensation. Compensation above the fixed ranges may be obtained for "extraordinary" claims. But the settlement places both numerical caps and dollar limits on such claims.[6] The settlement imposes " flow maximums," which cap the number of claims payable for each disease in a given year. Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called "exposure-only" plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. "Pleural" claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas. Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to withdraw *605 from the settlement after ten years. A small number of class members—only a few per year—may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL—CIO and class counsel. Class counsel are to receive attorneys' fees in an amount to be approved by the District Court. D On January 29, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants' asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that "[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable." Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, of the Eastern District of Pennsylvania, "the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class." See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ib[7] *606 In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see and he approved the settling parties' elaborate plan for giving notice to the class, see 158 F. R. D. 314, 336 The courtapproved notice informed recipients that they could exclude themselves from the class, if they so chose, within a threemonth opt-out period. Objectors raised numerous challenges to the settlement. They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325, -332. He found that adequate notice had been given to class members, see and that final class certification under Rule 23(b)(3) was appropriate, see As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)'s numerosity requirement,[8] see ib a matter no one debates. The *607 Rule 23(a)(2) and (b)(3) requirements of commonality[9] and preponderance[10] were satisfied, the District Court held, in that "[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3)." The District Court held next that the claims of the class representatives were "typical" of the class as a whole, a requirement of Rule 23(a)(3),[11] and that, as Rule 23(b)(3) demands,[12] the class settlement was "superior" to other methods of adjudication. See ib Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirement.[13] Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single *608 class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class. Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See Reasoning that the representative plaintiffs "have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any, or several categories," the District Court found "no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment." at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See E The Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised "serious concerns." However, the court observed, "the jurisdictional issues in this would not exist but for the [class-action] certification." Ib Turning to the classcertification *609 issues and finding them dispositive, the Third Circuit declined to decide other questions. On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability which held that although a class action may be certified for settlement purposes only, Rule 23(a)'s requirements must be satisfied as if the were going to be -800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See But cf.In re Asbestos cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met "without taking into account the settlement," the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the under Rule 23 criteria. See The Third Circuit recognized that Rule 23(a)(2)'s "commonality" requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class "predominate over" other questions. The court therefore trained its attention on the "predominance" inquiry. See The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See But uncommon questions abounded. In contrast to mass torts involving a single accident, class members in this were exposed to different asbestoscontaining products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See "These factual differences," the Third Circuit explained, "translate[d] into significant legal differences." State law governed and varied widely *610 on such critical issues as "viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury." Ib[14] "[T]he number of uncommon issues in this humongous class action," the Third Circuit concluded, ib barred a determination, under existing tort law, that common questions predominated, see The Court of Appeals next found that "serious intra-class conflicts preclude[d] th[e] class from meeting the adequacy of representation requirement" of Rule 23(a)(4). Ib Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: "`[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.' " Ib "But the settlement does more than simply provide a general recovery fund," the Court of Appeals immediately added; "[r]ather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others." 83 F.3d, In the Third Circuit's view, the "most salient" divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ib They would seek sturdy back-end opt-out rights and "causation provisions that can keep pace with changing *611 science and medicine, rather than freezing in place the science of" -631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposureonly claimants. The Third Circuit next rejected the District Court's determination that the named plaintiffs were "typical" of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: "both look to the potential for conflicts in the class." Evident conflict problems, the court said, led it to hold that "no set of representatives can be `typical' of this class." Ib The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex "could not be tried." Ib The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See "A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable," the Court of Appeals sa The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court's antisuit injunction. Judge Wellford concurred, "fully subscrib[ing] to the decision of Judge Becker that the plaintiffs in this ha[d] not met the requirements of Rule 23." Ib He added that in his view, named exposure-only plaintiffs had no standing to pursue the *612 suit in federal court, for their depositions showed that "[t]hey claimed no damages and no present injury." We granted certiorari, and now affirm. II Objectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries. Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors argue that exposureonly claimants did not meet the then-current amount-incontroversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U.S. C. 1332(a). As earlier recounted, see the Third Circuit declined to reach these issues because they "would not exist but for the [class-action] certification." 83 F.3d, We agree that "[t]he class certification issues are dispositive," ib; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official We therefore follow the path taken by the Court of Appeals, mindful that *613 Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure "shall not abridge, enlarge or modify any substantive right," 28 U.S. C. 2072(b). See Fed. Rule Civ. Proc. 82 ("rules shall not be construed to extend the [subject-matter] jurisdiction of the United States district courts").[15] III To place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a "class [so large] that joinder of all members is impracticable"); (2) commonality ("questions of law or fact common to the class"); (3) typicality (named parties' claims or defenses "are typical of the class"); and (4) adequacy of representation (representatives "will fairly and adequately protect the interests of the class"). *614 In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers s in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," Fed. Rule Civ. Proc. 23(b)(1)(A), or would "as a practical matter be dispositive of the interests" of nonparty class members "or substantially impair or impede their ability to protect their interests," Rule 23(b)(1)(B). Rule 23(b)(1)(A) "takes in s where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners)." Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, "limited fund" s, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights s against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) "build[s] on experience mainly, but not exclusively, in the civil rights field"). In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was "the most adventuresome" innovation. See Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be *615 excluded. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1777, p. 517 (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) "opt-out" class actions superseded the former "spurious" class action, so characterized because it generally functioned as a permissive joinder ("opt-in") device. See 7A Wright, Miller, & Kane 1753, at 28-31, 42-44; see Adv. Comm. Notes, 28 U.S. C. App., p. 695. Framed for situations in which "class-action treatment is not as clearly called for" as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit "may nevertheless be convenient and desirable." Adv. Comm. Notes, 28 U.S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members"; and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover s "in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Ib Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the before it is accepted as a class action." Kaplan, Continuing Work 390. Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court's "close look" at the predominance and superiority criteria: *616 "(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action." In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each courts would "consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit." Adv. Comm. Notes, 28 U.S. C. App., p. 698. They elaborated: "The interests of individuals in conducting separate lawsuits may be so strong as to callfor denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable." Ib See Kaplan, Continuing Work 391 ("Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable." (footnote omitted)). As the Third Circuit observed in the instant : "Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his ]"; each "ha[s] a substantial stake in making individual decisions on whether and when to settle." 83 F.3d, *617 While the text of Rule 23(b)(3) does not exclude from certification s in which individual damages run high, the Advisory Committee had dominantly in mind vindication of "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all." Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion: "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." To alert class members to their right to "opt out" of a (b)(3) class, Rule 23 instructs the court to "direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed. Rule Civ. Proc. 23(c)(2); see No class action may be "dismissed or compromised without [court] approval," preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the Rule's instruction without elaboration: "Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action." Adv. Comm. Notes, 28 U.S. C. App., p. 699. In the decades since the 1966 revision of Rule 23, classaction practice has become ever more "adventuresome" as a means of coping with claims too numerous to secure their * "just, speedy, and inexpensive determination" one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Individual Justice in Mass Tort : The Effect of Class Actions, Consolidations, and Other Multiparty Devices ; Schwarzer, Settlement of Mass Tort Class Actions: Order out of Chaos, Among current applications of Rule 23(b)(3), the "settlement only" class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (noting large number of such s in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23's certification criteria. In GM -800, and in the instant -, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos ("in settlement class context, common issues arise from the settlement itself") ); cert. denied, ; In re A. H. Robins Co., (CA4) ("[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification"), cert. denied sub nom. Anderson ; cert. denied, A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, "even though the requirements of subdivision (b)(3) might not be met for purposes of trial." Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Request for Comment). In response to the publication of this proposal, voluminous public comments—many of them opposed to, or skeptical of, the amendment—were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors ; Letter from Paul D. Carrington The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed. IV We granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." (quoting GM ). That statement, petitioners urge, is incorrect. We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect. But, as we earlier observed, see the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees' *620 interests inadequately represented. See 83 F.3d, — 631. The Third Circuit's close inspection of the settlement in that regard was altogether proper. Confronted with a request for settlement-only class certification, a district court need not inquire whether the if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule— those designed to protect absentees by blocking unwarranted or overbroad class definitions—demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).[16] And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U.S. C. 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure "shall not abridge any substantive right." 2072(b). Rule 23(e), on settlement of class actions, reads in its entirety: "A class action shall not be dismissed or compromised *621 without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." This prescription was designed to function as an additional requirement, not a superseding direction, for the "class action" to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. -177 Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed. The safeguards provided by the Rule 23(a) and (b) classqualifying criteria, we emphasize, are not impractical impediments—checks shorn of utility—in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot kind—class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness. Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., (parties "may even put one over on the court, in a staged performance"), cert. denied, *622 Federal courts, in any lack authority to substitute for Rule 23's certification criteria a standard never adopted— that if a settlement is "fair," then certification is proper. Applying to this criteria the rulemakers set, we conclude that the Third Circuit's appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals' opinion amply demonstrates why—with or without a settlement on the table— the sprawling class the District Court certified does not satisfy Rule 23's requirements.[17] A We address first the requirement of Rule 23(b)(3) that "[common] questions of law or fact predominate over any questions affecting only individual members." The District Court concluded that predominance was satisfied based on two factors: class members' shared experience of asbestos exposure and their common "interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., The settling parties contend that the settlement's fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement. The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see *623 at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member's as a genuine controversy, questions that preexist any settlement.[18] The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518— 519.[19] The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members "from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise." See 7B Wright, Miller, & Kane 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context. The District Court relied upon this commonality: "The members of the class have all been exposed to asbestos products supplied by the defendants" 157 F. R. D., Even if Rule 23(a)'s commonality requirement may be satisfied *624 by that shared experience, the predominance criterion is far more demanding. See -627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard. The Third Circuit highlighted the disparate questions undermining class cohesion in this : "Class members were exposed to different asbestoscontaining products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only a symptomatic plural changes, while others suffer from lung cancer, disabling asbestos is, or from mesothelioma Each has a different history of cigarette smoking, a factor that complicates the causation inquiry. "The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories." Differences in state law, the Court of Appeals observed, compound these disparities. See ). No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos n. 8 ("We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and *625 their varying medical expenses, smoking histories, and family situations."). Predominance is a test readily met in certain s alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U.S. C. App., p. 697; see Even mass tort s arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" s are likely to present "significant questions, not only of damages but of liability and defenses of liability, affecting the individuals in different ways." Adv. Comm. Notes, 28 U.S. C. App., p. 697. And the Committee advised that such s are "ordinarily not appropriate" for class treatment. Ib But the text of the Rule does not categorically exclude mass tort s from class certification, and District Courts, since the late 1970's, have been certifying such s in increasing number. See Resnik, From "Cases" to "," 54 Law & Contemp. Prob. 5, 17-19 (describing trend). The Committee's warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit's opinion makes plain, the certification in this does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)'s predominance requirement irreconcilable with the Rule's design. B Nor can the class approved by the District Court satisfy Rule 23(a)(4)'s requirement that the named parties "will fairly and adequately protect the interests of the class." The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of "[A] class representative must be part of the class and `possess * the same interest and suffer the same injury' as the class members." East Tex. Motor Freight System, ).[20] As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of ("In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes."). The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court's finding that petitioners' assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. Although *627 this is not a "limited fund" certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants' liability. For example, as earlier described, see the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation. The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point: "[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups." In re Joint Eastern and South- ern Dist. Asbestos modified on reh'g sub nom. In re Findley, The Third Circuit found no assurance here—either in the terms of the settlement or in the structure of the negotiations—that the named plaintiffs operated under a proper understanding of their representational responsibilities. See * 83 F. 3d, -631. That assessment, we conclude, is on the mark. C Impediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. ; cf. In re Asbestos - Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out. Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category—future spouses and children of asbestos victims—could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure. Because we have concluded that the class in this cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F.3d, -634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous. V The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos *629 exposure.[21] Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this exemplifies, the rulemakers' prescriptions for class actions may be endangered by "those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste." C. Wright, Law of Federal Courts 508 ; cf.83 F. 3d, * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is Affirmed. Justice O'Connor took no part in the consideration or decision of this Justice Breyer, with whom Justice Stevens joins, concurring in part and dissenting in part. Although I agree with the Court's basic holding that "[s]ettlement is relevant to a class certification," ante, at 619, I find several problems in its approach that lead me to a different conclusion. First, I believe that the need for settlement in this mass tort with hundreds of thousands of lawsuits, is greater than the Court's opinion suggests. Second, I would give more weight than would the majority to settlement-related issues for purposes of determining whether common issues predominate. Third, I am uncertain about the Court's determination of adequacy of representation, *630 and do not believe it appropriate for this Court to second-guess the District Court on the matter without first having the Court of Appeals consider it. Fourth, I am uncertain about the tenor of an opinion that seems to suggest the settlement is unfair. And fifth, in the absence of further review by the Court of Appeals, I cannot accept the majority's suggestions that "notice" is inadequate. These difficulties flow from the majority's review of what are highly fact-based, complex, and difficult matters, matters that are inappropriate for initial review before this Court. The law gives broad leeway to district courts in making class certification decisions, and their judgments are to be reviewed by the court of appeals only for abuse of discretion. See Indeed, the District Court's certification decision rests upon more than 300 findings of fact reached after five weeks of comprehensive hearings. Accordingly, I do not believe that we should in effect set aside the findings of the District Court. That court is far more familiar with the issues and litigants than is a court of appeals or are we, and therefore has "broad power and discretion with respect to matters involving the certification" of class actions. ; cf. Cooter & I do not believe that we can rely upon the Court of Appeals' review of the District Court record, for that review, and its ultimate conclusions, are infected by a legal error. E. g., There is no evidence that the Court of Appeals at any point considered the settlement as something that would help the class meet Rule 23. I find, moreover, the fact-related issues presented here sufficiently *631 close to warrant further detailed appellate court review under the correct legal standard. Cf. And I shall briefly explain why this is so. I First, I believe the majority understates the importance of settlement in this Between 13 and 21 million workers have been exposed to asbestos in the workplace—over the past 40 or 50 years—but the most severe instances of such exposure probably occurred three or four decades ago. See Report of The Judicial Conference Ad Hoc Committee on Asbestos pp. 6-7 (Judicial Conference Report); App. 781-782, 801; B. Castleman, Asbestos: Medical and Legal Aspects 787-788 This exposure has led to several hundred thousand lawsuits, about 15% of which involved claims for cancer and about 30% for asbestos is. See In re Joint Eastern and Southern Dist. Asbestos About half of the suits have involved claims for plural thickening and plaques—the harmfulness of which is apparently controversial. (One expert below testified that they "don't transform into cancer" and are not "predictor[s] of future disease," App. 781.) Some of those who suffer from the most serious injuries, however, have received little or no compensation. In re School Asbestos ; see Edley & Asbestos: A MultiBillion-Dollar Crisis, 30 Harv. J. Legis. 383, 384, 393 ("[U]p to one-half of asbestos claims are now being filed by people who have little or no physical impairment. Many of these claims produce substantial payments (and substantial costs) even though the individual litigants will never become impaired"). These lawsuits have taken up more than 6% of all federal civil filings in one recent year, and are subject to a delay that is twice that of other civil suits. Judicial Conference Report 7, 10-11. *632 Delays, high costs, and a random pattern of noncompensation led the Judicial Conference Ad Hoc Committee on Asbestos to transfer all federal asbestos personalinjury s to the Eastern District of Pennsylvania in an effort to bring about a fair and comprehensive settlement. It is worth considering a few of the Committee's comments. See Judicial Conference Report 2 ("`Decisions concerning thousands of deaths, millions of injuries, and billions of dollars are entangled in a litigation system whose strengths have increasingly been overshadowed by its weaknesses.' The ensuing five years have seen the picture worsen: increased filings, larger backlogs, higher costs, more bankruptcies and poorer prospects that judgments—if ever obtained—can be collected" (quoting Rand Corporation Institute for Civil Justice)); ("The transaction costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease." "[O]f each asbestos litigation dollar, 61 cents is consumed in transaction costs Only 39 cents were paid to the asbestos victims" (citing Rand finding)); ("Delays can increase transaction costs, especially the attorneys' fees paid by defendants at hourly rates. These costs reduce either the insurance fund or the company's assets, thereby reducing the funds available to pay pending and future claimants. By the end of the trial phase in [one ], at least seven defendants had declared bankruptcy (as a result of asbestos claims generally")); see J. Individual Justice in Mass Tort 155 ; Edley & Although the transfer of the federal asbestos s did not produce a general settlement, it was intertwined with and led to a lengthy year-long negotiation between the cochairs of the Plaintiff's Multi-District Steering Committee (elected by the Plaintiff's Committee Members and approved by the District Court) and the 20 asbestos defendants who are before us here. 157 F. R. D. 246, 266-267 ; App. 660-662. *633 These "protracted and vigorous" negotiations led to the present partial settlement, which will pay an estimated $1.3 billion and compensate perhaps 100,000 class members in the first 10 years. 157 F. R. D., at 268, 287. "The negotiations included a substantial exchange of information" between class counsel and the 20 defendant companies, including "confidential data" showing the defendants' historical settlement averages, numbers of claims filed and settled, and insurance resources. "Virtually no provision" of the settlement "was not the subject of significant negotiation," and the settlement terms "changed substantially" during the negotiations. Ib In the end, the negotiations produced a settlement that, the District Court determined based on its detailed review of the process, was "the result of armslength adversarial negotiations by extraordinarily competent and experienced attorneys." The District Court, when approving the settlement, concluded that it improved the plaintiffs' chances of compensation and reduced total legal fees and other transaction costs by a significant amount. Under the previous system, according to the court, "[t]he sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease." Ib The court believed the settlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses. I mention this matter because it suggests that the settlement before us is unusual in terms of its importance, both to many potential plaintiffs and to defendants, and with respect to the time, effort, and expenditure that it reflects. All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong. I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court, understandably, but as we now hold, mistakenly, believed that settlement *634 was not a relevant (and, as I would say, important) consideration. Second, the majority, in reviewing the District Court's determination that common "issues of fact and law predominate," says that the predominance "inquiry trains on the legal or factual questions that qualify each class member's as a genuine controversy, questions that preexist any settlement." Ante, (footnote omitted). I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion. If the majority means that these presettlement questions are what matters, then how does it reconcile its statement with its basic conclusion that "settlement is relevant" to class certification, or with the numerous lower court authority that says that settlement is not only relevant, but important? See, e. g., In re A. H. Robins Co., (CA4), cert. denied sub nom. ; In re Beef Industry Antitrust cert. denied sub nom. Iowa Beef Processors, ; 2 H. Newberg & A. Conte, Newberg on Class Actions 11.27, pp. 11-54 to 11-55 Nor do I understand how one could decide whether common questions "predominate" in the abstract—without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement. Every group of human beings, after all, has some features in common, and some that differ. How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow? Such guideposts help it decide whether, in light of common concerns and differences, certification will achieve Rule 23's basic objective—"economies of time, effort, and expense." Advisory Committee's Notes on Fed. Rule Civ. Proc. 23(b)(3), 28 U.S. C. App., p. 697. As this Court has previously observed, "sometimes it may be necessary for the court to probe behind the pleadings before coming to *635 rest on the certification question." General Telephone Co. of ; see 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1785, p. 107, and n. 34 I am not saying that the "settlement counts only one way." Ante, at 620, n. 16. Rather, the settlement may simply "add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint" and courts "can and should" look to it to enhance the "ability to make informed certification decisions." In re Asbestos The majority may mean that the District Court gave too much weight to the settlement. But I am not certain how it can reach that conclusion. It cannot rely upon the Court of Appeals, for that court gave no positive weight at all to the settlement. Nor can it say that the District Court relied solely on "a common interest in a fair compromise," ante, for the District Court did not do so. Rather, it found the settlement relevant because it explained the importance of the class plaintiffs' common features and common interests. The court found predominance in part because: "The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system." 157 F. R. D., The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue—a proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common. That is to say, the settlement underscored the importance *636 of (a) the common fact of exposure, (b) the common interest in receiving some compensation for certain rather than running a strong risk of no compensation, and (c) the common interest in avoiding large legal fees, other transaction costs, and delays. Ib Of course, as the majority points out, there are important differences among class members. Different plaintiffs were exposed to different products for different times; each has a distinct medical history and a different history of smoking; and many s arise under the laws of different States. The relevant question, however, is how much these differences matter in respect to the legal proceedings that lie ahead. Many, if not all, toxic tort class actions involve plaintiffs with such differences. And the differences in state law are of diminished importance in respect to a proposed settlement in which the defendants have waived all defenses and agreed to compensate all those who were injured. These differences might warrant subclasses, though subclasses can have problems of their own. "There can be a cost in creating more distinct subgroups, each with its own representation. [T]he more subclasses created, the more severe conflicts bubble to the surface and inhibit settlement. The resources of defendants and, ultimately, the community must not be exhausted by protracted litigation." Individual Justice in Mass Tort at 66. Or these differences may be too serious to permit an effort at group settlement. This kind of determination, as I have said, is one that the law commits to the discretion of the district court—reviewable for abuse of discretion by a court of appeals. I believe that we are far too distant from the litigation itself to reweigh the fact-specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind. *637 Third, the majority concludes that the "representative parties" will not "fairly and adequately protect the interests of the class." Rule 23(a)(4). It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because "for the currently injured, the critical goal is generous immediate payments," a goal that "tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future." Ante, I agree that there is a serious problem, but it is a problem that often exists in toxic tort s. See (noting that conflict "between present and future claimants" "is almost always present in some form in mass tort s because long latency periods are needed to discover injuries"); see Judicial Conference Report 34-35 ("Because many of the defendants in these s have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a `real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled' " (citation omitted)). And it is a problem that potentially exists whenever a single defendant injures several plaintiffs, for a settling plaintiff leaves fewer assets available for the others. With class actions, at least, plaintiffs have the consolation that a district court, thoroughly familiar with the facts, is charged with the responsibility of ensuring that the interests of no class members are sacrificed. But this Court cannot easily safeguard such interests through review of a cold record. "What constitutes adequate representation is a question of fact that depends on the circumstances of each" 7A Wright, Miller, & Kane, Federal Practice and Procedure 1765, at 271. That is particularly so when, as here, there is an unusual baseline, namely, the "`real and present danger' " described by the Judicial Conference Report above. The majority's use of the *638 lack of an inflation adjustment as evidence of inadequacy of representation for future plaintiffs, ante, -627, is one example of this difficulty. An inflation adjustment might not be as valuable as the majority assumes if most plaintiffs are old and not worried about receiving compensation decades from now. There are, of course, strong arguments as to its value. But that disagreement is one that this Court is poorly situated to resolve. Further, certain details of the settlement that are not discussed in the majority opinion suggest that the settlement may be of greater benefit to future plaintiffs than the majority suggests. The District Court concluded that future plaintiffs receive a "significant value" from the settlement due to a variety of its items that benefit future plaintiffs, such as: (1) tolling the statute of limitations so that class members "will no longer be forced to file premature lawsuits or risk their claims being time-barred"; (2) waiver of defenses to liability; (3) payment of claims, if and when members become sick, pursuant to the settlement's compensation standards, which avoids "the uncertainties, long delays and high transaction costs [including attorney's fees] of the tort system"; (4) "some assurance that there will be funds available if and when they get sick," based on the finding that each defendant "has shown an ability to fund the payment of all qualifying claims" under the settlement; and (5) the right to additional compensation if cancer develops (many settlements for plaintiffs with noncancerous conditions bar such additional claims). 157 F. R. D., For these reasons, and others, the District Court found that the distinction between present and future plaintiffs was "illusory." I do not know whether or not the benefits are more or less valuable than an inflation adjustment. But I can certainly recognize an argument that they are. (To choose one more brief illustration, the majority chastises the settlement for extinguishing loss-of-consortium claims, ante, but *639 does not note that, as the District Court found, the "defendants' historical [settlement] averages, upon which the compensation values are based, include payments for loss of consortium claims, and, accordingly, the Compensation Schedule is not unfair for this ascribed reason," 157 F. R. D., at 278.) The difficulties inherent in both knowing and understanding the vast number of relevant individual fact-based determinations here counsel heavily in favor of deference to district court decisionmaking in Rule 23 decisions. Or, at the least, making certain that appellate court review has taken place with the correct standard in mind. Fourth, I am more agnostic than is the majority about the basic fairness of the settlement. Ante, at 625-. The District Court's conclusions rested upon complicated factual findings that are not easily cast aside. It is helpful to consider some of them, such as its determination that the settlement provided "fair compensation while reducing the delays and transaction costs endemic to the asbestos litigation process" and that "the proposed class action settlement is superior to other available methods for the fair and efficient resolution of the asbestos-related personal injury claims of class members." 157 F. R. D., (citation omitted); see ("The inadequate tort system has demonstrated that the lawyers are well paid for their services but the victims are not receiving speedy and reasonably inexpensive resolution of their claims. Rather, the victims' recoveries are delayed, excessively reduced by transaction costs and relegated to the impersonal group trials and mass consolidations. The sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease. Indeed, these unimpaired victims have, in many states, been forced to assert their claims prematurely or risk giving up all rights to future compensation for any future lung cancer or mesothelioma. The plan which this Court approves today will correct that unfair result for the class members and the defendants"); *640 ; ; Edley & 30 Harv. J. Legis., at 405, 407 (finding that "[t]here are several reasons to believe that this settlement secures important gains for both sides" and that they "firmly endorse the fairness and adequacy of this settlement"). Indeed, the settlement has been endorsed as fair and reasonable by the AFL—CIO (and its Building and Construction Trades Department), which represents a "`substantial percentage' " of class members, 157 F. R. D., at 325, and which has a role in monitoring implementation of the settlement, I do not intend to pass judgment upon the settlement's fairness, but I do believe that these matters would have to be explored in far greater depth before I could reach a conclusion about fairness. And that task, as I have said, is one for the Court of Appeals. Finally, I believe it is up to the District Court, rather than this Court, to review the legal sufficiency of notice to members of the class. The District Court found that the plan to provide notice was implemented at a cost of millions of dollars and included hundreds of thousands of individual notices, a wide-ranging television and print campaign, and significant additional efforts by 35 international and national unions to notify their members. Every notice emphasized that an individual did not currently have to be sick to be a class member. And in the end, the District Court was "confident" that Rule 23 and due process requirements were satisfied because, as a result of this "extensive and expensive notice procedure," "over six million" individuals "received actual notice materials," and "millions more" were reached by the media campaign. Although the majority, in principle, is reviewing a Court of Appeals' conclusion, it seems to me that its opinion might call into question the fact-related determinations of the District *641 Court. Ante, at To the extent that it does so, I disagree, for such findings cannot be so quickly disregarded. And I do not think that our precedents permit this Court to do so. See 442 U. S., at ; 442 U. S., at II The issues in this are complicated and difficult. The District Court might have been correct. Or not. Subclasses might be appropriate. Or not. I cannot tell. And I do not believe that this Court should be in the business of trying to make these fact-based determinations. That is a job suited to the district courts in the first instance, and the courts of appeals on review. But there is no reason in this to believe that the Court of Appeals conducted its prior review with an understanding that the settlement could have constituted a reasonably strong factor in favor of class certification. For this reason, I would provide the courts below with an opportunity to analyze the factual questions involved in certification by vacating the judgment, and remanding the for further proceedings.

Justice Alito

majority

BP America Production Co. v. Burton

https://www.courtlistener.com/opinion/145769/bp-america-production-co-v-burton/

https://www.courtlistener.com/api/rest/v3/clusters/145769/

2006-006

This case presents the question whether administrative payment orders issued by the Department of the Interior's Minerals Management Service (MMS) for the purpose of assessing royalty underpayments on oil and gas leases fall within 28 U.S.C. § 2415(a), which sets out a 6-year statute of limitations for Government contract actions. We hold that this provision does not apply to these administrative payment orders, and we therefore affirm. I A The Mineral Leasing Act of 1920(MLA) authorizes the Secretary of the Interior to lease public-domain lands to private parties for the production of oil and gas. 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. MLA lessees are obligated to pay a royalty of at least "12.5 percent in amount or value of the production removed or sold from the lease." § 226(b)(1)(A). In 1982, Congress enacted the Federal Oil and Gas Royalty Management Act (FOGRMA), 96 Stat. 2447, as amended, 30 U.S.C. § 1701 et seq., to address the concern that the "system of accounting with respect to royalties and other payments due and owing on oil and gas produced from such lease sites [was] archaic and inadequate." § 1701(a)(2). FOGRMA ordered the Secretary of the Interior to "audit and reconcile, to the extent practicable, all current and past lease accounts for leases of oil or gas and take appropriate actions to make additional collections or *642 refunds as warranted." § 1711(c)(1). The Secretary, in turn, has assigned these duties to MMS. 30 CFR § 201.100 (2006). Under FOGRMA, lessees are responsible in the first instance for the accurate calculation and payment of royalties. 30 U.S.C. § 1712(a). MMS, in turn, is authorized to audit those payments to determine whether a royalty has been overpaid or underpaid. §§ 1711(a) and (c); 30 CFR §§ 206.150(c), 206.170(d). In the event that an audit suggests an underpayment, it is MMS'[1] practice to send the lessee a letter inquiring about the perceived deficiency. If, after reviewing the lessee's response, MMS concludes that the lessee owes additional royalties, MMS issues an order requiring payment of the amount due. Failure to comply with such an order carries a stiff penalty: "Any person who— (1) knowingly or willfully fails to make any royalty payment by the date as specified by [an] order ... shall be liable for a penalty of up to $10,000 per violation for each day such violation continues." 30 U.S.C. § 1719(c). The Attorney General may enforce these orders in federal court. § 1722(a). An MMS payment order may be appealed, first to the Director of MMS and then to the Interior Board of Land Appeals or to an Assistant Secretary. 30 CFR §§ 290.105, 290.108. While filing an appeal does not generally stay the payment order, § 218.50(c), MMS will usually suspend the order's effect after the lessee complies with applicable bonding or financial solvency requirements, § 243.8. Congress supplemented this scheme by enacting the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996 (FOGRSFA), 110 Stat. 1700, as amended, 30 U.S.C. § 1701 et seq. FOGRSFA adopted a prospective 7-year statute of limitations for any "judicial proceeding or demand" for royalties arising under a federal oil or gas lease. § 1724(b)(1). The parties agree that this provision applies both to judicial actions ("judicial proceeding]") and to MMS' administrative payment orders ("demand[s]") arising on or after September 1, 1996. Ibid. This provision does not, however, apply to judicial proceedings or demands arising from leases of Indian land or underpayments of royalties on pre-September 1, 1996, production. FOGRSFA §§ 9, 11, 110 Stat. 1717, notes following 30 U.S.C. § 1701. There is no dispute that a lawsuit in court to recover royalties owed to the Government on pre-September 1, 1996, production is covered by 28 U.S.C. § 2415(a), which sets out a general 6-year statute of limitations for Government contract actions. That section, which was enacted in 1966, provides in relevant part: "Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later." (Emphasis added.) Whether this general 6-year statute of limitations also governs MMS administrative payment orders concerning pre-September 1, 1996, production is the question that we must decide in this case. *643 B Petitioner BP America Production Co. holds gas leases from the Federal Government for lands in New Mexico's San Juan Basin. BP's predecessor, Amoco Production Co., first entered into these leases nearly 50 years ago, and these leases require the payment of the minimum 12.5 percent royalty prescribed by 30 U.S.C. § 226(b)(1)(A). For years, Amoco calculated the royalty as a percentage of the value of the gas as of the moment it was produced at the well. In 1996, MMS sent lessees a letter directing that royalties should be calculated based not on the value of the gas at the well, but on the value of the gas after it was treated to meet the quality requirements for introduction into the Nation's mainline pipelines.[2] Consistent with this guidance, MMS in 1997 ordered Amoco to pay additional royalties for the period from January 1989 through December 1996 in order to cover the difference between the value of the treated gas and its lesser value at the well. Amoco appealed the order, disputing MMS' interpretation of its royalty obligations and arguing that the payment order was in any event barred in part by the 6-year statute of limitations in 28 U.S.C. § 2415(a). The Assistant Secretary of the Interior denied the appeal and ruled that the statute of limitations was inapplicable. Amoco, together with petitioner Atlantic Richfield Co., sought review in the United States District Court for the District of Columbia, which agreed with the Assistant Secretary that § 2415(a) did not govern the administrative order. Amoco Production Co. v. Baca, 300 F. Supp. 2d 1, 21 (2003). The Court of Appeals for the District of Columbia Circuit affirmed, Amoco Production Co. v. Watson, 410 F.3d 722, 733 (2005), and we granted certiorari, 547 U.S. 1068, 126 S. Ct. 1768, 164 L. Ed. 2d 515 (2006), in order to resolve the conflict between that decision and the contrary holding of the United States Court of Appeals for the Tenth Circuit in OXY USA, Inc. v. Babbitt, 268 F.3d 1001, 1005 (2001) (en banc). We now affirm. II A We start, of course, with the statutory text. Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 173, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979). Read in this way, the text of § 2415(a) is quite clear. The statute of limitations imposed by § 2415(a) applies when the Government commences any "action for money damages" by filing a "complaint" to enforce a contract, and the statute runs from the point when "the right of action accrues." The key terms in this provision—"action" and "complaint"—are ordinarily used in connection with judicial, not administrative, proceedings. In 1966, when § 2415(a) was enacted, a commonly used legal dictionary defined the term "right of action" as "[t]he right to bring suit; a legal right to maintain an action," with "suit" meaning "any proceeding ... in a court of justice." Black's Law Dictionary 1488, 1603 (4th ed.1951) (hereinafter Black's). Likewise, "complaint" was defined as "the first or initiatory pleading on the part of the plaintiff *644 in a civil action."[3]Id., at 356. See also Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 66, 73 S. Ct. 580, 97 L. Ed. 821 (1953) (holding that filing a complaint, in the ordinary sense of the term, means filing a suit in court, not initiating an administrative proceeding: "Commencement of an action by the filing of a complaint has too familiar a history ... for us to assume that Congress did not mean to use the words in their ordinary sense"). The phrase "action for money damages" reinforces this reading because the term "damages" is generally used to mean "pecuniary compensation or indemnity, which may be recovered in the courts." Black's 466 (emphasis added). Nothing in the language of § 2415(a) suggests that Congress intended these terms to apply more broadly to administrative proceedings. On the contrary, § 2415(a) distinguishes between judicial and administrative proceedings. Section 2415(a) provides that an "action" must commence "within one year after final decisions have been rendered in applicable administrative proceedings." Thus, Congress knew how to identify administrative proceedings and manifestly had two separate concepts in mind when it enacted § 2415(a).[4] B In an effort to show that the term "action" is commonly used to refer to administrative, as well as judicial, proceedings, petitioners have cited numerous statutes and regulations that, petitioners claim, document this usage.[5] These examples, however, actually undermine petitioners' argument, since none of them uses the term "action" standing alone to refer to administrative proceedings. Rather, each example includes a modifier of some sort, referring to an "administrative action," a "civil or administrative action," or "administrative enforcement actions." This pattern of usage buttresses the point that the term "action," standing alone, ordinarily refers to a judicial proceeding. Petitioners contend that their broader interpretation of the statutory term "action" is supported by the reference to "every action for money damages" founded *645 upon "any contract." 28 U.S.C. § 2415(a) (emphasis added). But the broad terms "every" and "any" do not assist petitioners, as they do not broaden the ordinary meaning of the key term "action." Petitioners argue that their interpretation is supported by Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986), and West v. Gibson, 527 U.S. 212, 119 S. Ct. 1906, 144 L. Ed. 2d 196 (1999), but this reliance is misplaced. In Delaware Valley Citizens' Council, we construed the attorney's fee provision of the Clean Water Act (CWA), which authorizes a "court, in issuing any final order in any action brought pursuant to subsection (a) of this section, [to] award costs of litigation ... to any party." 42 U.S.C. § 7604(d). We permitted the recovery of fees both for work done in court and in subsequent administrative proceedings. But the pertinent statutory provision in that case did not employ the key terms that appear in the statute at issue here. Specifically, the CWA provision referred to "litigation," not to an "action" commenced by the filing of a "complaint." Moreover, "the work done by counsel [in the administrative phase of the case] was as necessary to the attainment of adequate relief... as was all of their earlier work in the courtroom ... obtaining the consent decree." 478 U.S., at 558, 106 S. Ct. 3088. And we expressly reserved judgment on the question "whether an award of attorney's fees is appropriate ... when there is no connected court action in which fees are recoverable." Id., at 560, n. 5, 106 S. Ct. 3088. West helps petitioners even less. There, we considered whether the Equal Employment Opportunity Commission (EEOC) could order a federal agency to pay compensatory damages in an administrative proceeding. Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(b), authorized the EEOC to employ "appropriate remedies," but did not specifically authorize damages, and § 717(c) authorized a subsequent court action against an employer agency, 42 U.S.C. § 2000e-16(c). In 1991, Congress added Rev. Stat. § 1977A(a)(1), 42 U.S.C. § 1981a(a)(1), which provided that "[i]n an action brought by a complaining party under section 706 or 717 ... the complaining party may recover compensatory ... damages." In West, the respondent employee argued that the enactment of § 1981a(a)(1) showed that Congress did not consider compensatory damages to be "appropriate remedies" in an EEOC proceeding, as opposed to an action brought by an aggrieved employee. If Congress had wished to authorize the award of compensatory damages in an EEOC proceeding, the respondent employee reasoned, Congress would have so provided in § 1981a(a)(l), by expressly cross-referencing § 717(c). We rejected this argument, but in doing so we did not hold that an EEOC proceeding is an "action" under § 1981a(a)(1). Rather, we simply concluded that the EEOC's authorization under § 717(b) to award "appropriate remedies" was broad enough to encompass compensatory damages. 527 U.S., at 220-221, 119 S. Ct. 1906. For these reasons, we are not persuaded by petitioners' argument that the term "action" in § 2415(a) applies to the administrative proceedings that follow the issuance of an MMS payment order. C We similarly reject petitioners' suggestion that an MMS letter or payment order constitutes a "complaint" within the meaning of § 2415(a). Petitioners point to examples of statutes and regulations that employ the term "complaint" in the administrative context. See, e.g., 15 U.S.C. *646 § 45(b) (requiring the Federal Trade Commission to serve a "complaint" on a party suspected of engaging in an unfair method of competition); 29 CFR § 102.15 (2006) (a "complaint" initiates unfair labor practice proceedings before the National Labor Relations Board). But the occasional use of the term to describe certain administrative filings does not alter its primary meaning, which concerns the initiation of "a civil action." Black's 356. Moreover, even if the distinction between administrative and judicial proceedings is put aside, an MMS payment order lacks the essential attributes of a complaint. While a complaint is a filing that commences a proceeding that may in the end result in a legally binding order providing relief, an MMS payment order in and of itself imposes a legal obligation on the party to which it is issued. As noted, the failure to comply with such an order can result in fines of up to $10,000 a day. An MMS payment order, therefore, plays an entirely different role from that of a "complaint."[6] D To the extent that any doubts remain regarding the meaning of § 2415(a), they are erased by the rule that statutes of limitations are construed narrowly against the government. E.I. Du Pont De Nemours & Co. v. Davis, 264 U.S. 456, 44 S. Ct. 364, 68 L. Ed. 788 (1924). This canon is rooted in the traditional rule quod nullum tempus occurrit regi— time does not run against the King. Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S. Ct. 785, 82 L. Ed. 1224 (1938). A corollary of this rule is that when the sovereign elects to subject itself to a statute of limitations, the sovereign is given the benefit of the doubt if the scope of the statute is ambiguous. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676 (1927), cited by petitioners, is not to the contrary. There, as here, the issue was the scope of a statute of limitations. The provision in that case, however, provided that "`[n]o suit or proceeding for the collection of any such taxes'" shall commence more than five years after the filing of the return. Id., at 348-349, 47 S. Ct. 389. The Government argued that the terms "proceeding" and "suit" were coterminous, and urged further that any ambiguity should be resolved in its favor. The Court recognized the canon, restating it much as we have above. Id., at 349, 47 S. Ct. 389. But the Court concluded that the canon had no application in that case because the text of the relevant statute, unlike § 2415(a), applied clearly and separately to "suits" and "proceedings," and the Court saw no reason to give these different terms the same meaning. Id., at 349-350, 47 S. Ct. 389. E We come now to petitioners' argument that interpreting § 2415(a) as applying only to judicial actions would render subsection (i) of the same statute superfluous. Subsection (i) provides as follows: "The provisions of this section shall not prevent the United States or an officer or agency thereof from collecting any claim of the United States by means of administrative offset, in accordance *647 with section 3716 of title 31." 28 U.S.C. § 2415(i). An administrative offset is a mechanism by which the Government withholds payment of a debt that it owes another party in order to recoup a payment that this party owes the Government. 31 U.S.C. § 3701(a)(1). Thus, under subsection (i), the Government may recover a debt via an administrative offset even if the Government would be time barred under subsection (a) from pursuing the debt in court. Petitioners argue that, if § 2415(a) applies only to judicial proceedings and not to administrative proceedings, there is no need for § 2415(i)'s rule protecting a particular administrative mechanism (i.e., an administrative offset) from the statute of limitations set out in subsection (a). Invoking the canon against reading a statute in a way that makes part of the statute redundant, see, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001), petitioners contend that subsection (i) shows that subsection (a) was meant to apply to administrative, as well as judicial, proceedings. We disagree. As the Court of Appeals noted, subsection (i) was not enacted at the same time as subsection (a) but rather was added 16 years later by the Debt Collection Act of 1982. 96 Stat. 1749. This enactment followed a dispute between the Office of the Comptroller General of the United States, head of the agency then named the General Accounting Office (GAO), and the Department of Justice's Office of Legal Counsel (OLC) over whether an administrative offset could be used to recoup a debt where a judicial recoupment action was already time barred. In 1978, in response to a question from the United States Civil Service Commission, OLC opined that an administrative offset could not be used to recoup a debt as to which a judicial action was already time barred. OLC reached this conclusion not because it believed that § 2415(a) reached administrative proceedings generally,[7] but rather because of the particular purpose of an administrative offset. "Where [a] debt has not been reduced to judgment," OLC stated, "an administrative offset is merely a pre-judgment attachment device." Memorandum from John M. Harmon, Assistant Attorney General, OLC, to Alan K. Campbell, Chairman, U.S. Civil Service Commission Re: Effect of Statute of Limitations on Administrative Collection of United States Claims 3 (Sept. 29, 1978), Joint Lodging. OLC opined that a prejudgment attachment device such as this exists only to preserve funds to satisfy any judgment the creditor subsequently obtains. Id., at 4 (citing cases). OLC therefore concluded that, where a lawsuit is already foreclosed by § 2415(a), an administrative offset that is the functional equivalent of a pretrial attachment is also unavailable. Id., at 3. GAO disagreed. See In re Collection of Debts—Statute of Limitations on Administrative Setoff, 58 Comp. Gen. 501, 504-505, 1979 WL 14962 (1979). In its view, the question was answered by "[t]he general rule ... that statutes of limitations applicable to suits for debts or money demands bar or run only against the remedy (the right to bring suit) to which they apply and do not discharge the debt or extinguish, or even impair, the right or obligation, either in law or in fact, and the creditor may avail himself of every other lawful means of realizing on the debt or obligation. See Mascot Oil Co. v. United *648 States, 70 Ct. Cl. 246, 42 F.2d 309 (1930), affirmed 282 U.S. 434, 51 S. Ct. 196, 75 L. Ed. 444; and 33 Comp. Gen. 66, 1953 WL 526 (1953). See also Ready-Mix Concrete Co. v. United States, 131 Ct. Cl. 204, 130 F. Supp. 390 (1955)." Ibid. That Congress had time barred the judicial remedy, GAO reasoned, imposed no limit on the administrative remedy. The OLC-GAO dispute reveals that, even under the interpretation of subsection (a)—the one we are adopting—that considers it applicable only to court proceedings, subsection (i) is not mere surplusage. It clarifies that administrative offsets are not covered by subsection (a) even if they are viewed as an adjunct of a court action. To accept petitioners' argument, on the other hand, we would have to hold either that § 2415(a) applied to administrative actions when it was enacted in 1966 or that it was extended to reach administrative actions when subsection (i) was added in 1982. The clear meaning of the text of § 2415(a), which has not been amended, refutes the first of these propositions, and accepting the latter would require us to conclude that in 1982 Congress elected to enlarge § 2415 to cover administrative proceedings by inserting text expressly excluding a single administrative vehicle from the statute's reach. It is entirely unrealistic to suggest that Congress would proceed by such an oblique and cryptic route. III Petitioners contend that interpreting § 2415(a) as applying only to judicial actions results in a statutory scheme with peculiarities that Congress could not have intended. For example, petitioners note that while they are required by statute to preserve their records regarding royalty obligations for only seven years, 30 U.S.C. § 1724(f), the interpretation of § 2415(a) adopted by the Court of Appeals permits MMS to issue payment orders that reach back much further. We are mindful of the fact that a statute should be read where possible as effecting a "`symmetrical and coherent regulatory scheme,'" FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000), but here petitioners' alternative interpretation of § 2415(a) would itself result in disharmony. For instance, under FOGRSFA, MMS payment orders regarding oil and gas leases are now prospectively subject to a 7-year statute of limitations except with respect to obligations arising out of leases of Indian land. Consequently, if we agreed with petitioners that § 2415(a) applies generally to administrative proceedings, payment orders relating to oil and gas royalties owed under leases of Indian land would be subject to a shorter (i.e., 6-year) statute of limitations than similar payment orders relating to leases of other public-domain lands (which would be governed by FOGRSFA's new 7-year statute). Particularly in light of Congress' exhortation that the Secretary of the Interior "aggressively carry out his trust responsibility in the administration of Indian oil and gas," 30 U.S.C. § 1701(a)(4), it seems unlikely that Congress intended to impose a shorter statute of limitations for payment orders regarding Indian lands. Petitioners contend, finally, that interpreting § 2415(a) as applying only to judicial actions would frustrate the statute's purposes of providing repose, ensuring that actions are brought while evidence is fresh, lightening recordkeeping burdens, and pressuring federal agencies to assert federal rights promptly. These are certainly cogent policy arguments, but they must be viewed in perspective. For one thing, petitioners overstate the scope of the problem, since Congress of *649 course can enact and has enacted specific statutes of limitations to govern specific administrative actions. See, e.g., 42 U.S.C. § 5205(a)(1) (statute of limitations for an administrative action to recover payments made to state governments for disaster or emergency assistance). Indeed, in 1996, FOGRSFA imposed just such a limitation prospectively on all non-Indian land, oil, and gas lease claims. Second, and more fundamentally, the consequences of interpreting § 2415(a) as limited to court actions must be considered in light of the traditional rule exempting proceedings brought by the sovereign from any time bar. There are always policy arguments against affording the sovereign this special treatment, and therefore in a case like this, where the issue is how far Congress meant to go when it enacted a statute of limitations applicable to the Government, arguing that an expansive interpretation would serve the general purposes of statutes of limitations is somewhat beside the point. The relevant inquiry, instead, is simply how far Congress meant to go when it enacted the statute of limitations in question. Here prior to the enactment of § 2415(a) in 1966, contract actions brought by the Government were not subject to any statute of limitations. See Guaranty Trust Co., 304 U.S., at 132, 58 S. Ct. 785. Absent congressional action changing this rule, it remains the law, and the text of § 2415(a) betrays no intent to change this rule as it applies to administrative proceedings. In the final analysis, while we appreciate petitioners' arguments, they are insufficient to overcome the plain meaning of the statutory text. We therefore hold that the 6-year statute of limitations in § 2415(a) applies only to court actions and not to the administrative proceedings involved in this case. * * * For these reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. It is so ordered. The CHIEF JUSTICE and Justice BREYER took no part in the consideration or decision of this case.

This case presents the question whether administrative payment orders issued by the Department of the Interior's Minerals Management Service (MMS) for the purpose of assessing royalty underpayments on oil and gas leases fall within (a), which sets out a 6-year statute of limitations for Government contract actions. We hold that this provision does not apply to these administrative payment orders, and we therefore affirm. I A The Mineral Leasing Act of 1920(MLA) authorizes the Secretary of the Interior to lease public-domain lands to private parties for the production of oil and gas. as amended, et seq. MLA lessees are obligated to pay a royalty of at least "12.5 percent in amount or value of the production removed or sold from the lease." 226(b)(1)(A). In 1982, Congress enacted the Federal Oil and Gas Royalty Management Act (FOGRMA), as amended, 30 U.S.C. 1701 et seq., to address the concern that the "system of accounting with respect to royalties and other payments due and owing on oil and gas produced from such lease sites [was] archaic and inadequate." 1701(a)(2). FOGRMA ordered the Secretary of the Interior to "audit and reconcile, to the extent practicable, all current and past lease accounts for leases of oil or gas and take appropriate actions to make additional collections or *6 refunds as warranted." 1711(c)(1). The Secretary, in turn, has assigned these duties to MMS. 30 CFR 201.100 Under FOGRMA, lessees are responsible in the first instance for the accurate calculation and payment of royalties. 30 U.S.C. 1712(a). MMS, in turn, is authorized to audit those payments to determine whether a royalty has been overpaid or underpaid. 1711(a) and (c); 30 CFR 206.150(c), 206.170(d). In the event that an audit suggests an underpayment, it is MMS'[1] practice to send the lessee a letter inquiring about the perceived deficiency. If, after reviewing the lessee's response, MMS concludes that the lessee owes additional royalties, MMS issues an order requiring payment of the amount due. Failure to comply with such an order carries a stiff penalty: "Any person who— (1) knowingly or willfully fails to make any royalty payment by the date as specified by [an] order shall be liable for a penalty of up to $10,000 per violation for each day such violation continues." 30 U.S.C. 1719(c). The Attorney General may enforce these orders in federal court. 1722(a). An MMS payment order may be appealed, first to the Director of MMS and then to the Interior Board of Land Appeals or to an Assistant Secretary. 30 CFR 290.105, 290.108. While filing an appeal does not generally stay the payment order, 8.50(c), MMS will usually suspend the order's effect after the lessee complies with applicable bonding or financial solvency requirements, 243.8. Congress supplemented this scheme by enacting the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996 (FOGRSFA), as amended, 30 U.S.C. 1701 et seq. FOGRSFA adopted a prospective 7-year statute of limitations for any "judicial proceeding or demand" for royalties arising under a federal oil or gas lease. 1724(b)(1). The parties agree that this provision applies both to judicial actions ("judicial proceeding]") and to MMS' administrative payment orders ("demand[s]") arising on or after September 1, 1996. This provision does not, however, apply to judicial proceedings or demands arising from leases of Indian land or underpayments of royalties on pre-September 1, 1996, production. FOGRSFA 9, 11, notes following 30 U.S.C. 1701. There is no dispute that a lawsuit in court to recover royalties owed to the Government on pre-September 1, 1996, production is covered by (a), which sets out a general 6-year statute of limitations for Government contract actions. That section, which was enacted in 19, provides in relevant part: "Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later." (Emphasis added.) Whether this general 6-year statute of limitations also governs MMS administrative payment orders concerning pre-September 1, 1996, production is the question that we must decide in this case. *643 B Petitioner BP America Production holds gas leases from the Federal Government for lands in New Mexico's San Juan Basin. BP's predecessor, Amoco Production first entered into these leases nearly 50 years ago, and these leases require the payment of the minimum 12.5 percent royalty prescribed by 30 U.S.C. 226(b)(1)(A). For years, Amoco calculated the royalty as a percentage of the value of the gas as of the moment it was produced at the well. In 1996, MMS sent lessees a letter directing that royalties should be calculated based not on the value of the gas at the well, but on the value of the gas after it was treated to meet the quality requirements for introduction into the Nation's mainline pipelines.[2] Consistent with this guidance, MMS in 1997 ordered Amoco to pay additional royalties for the period from January 1989 through December 1996 in order to cover the difference between the value of the treated gas and its lesser value at the well. Amoco appealed the order, disputing MMS' interpretation of its royalty obligations and arguing that the payment order was in any event barred in part by the 6-year statute of limitations in (a). The Assistant Secretary of the Interior denied the appeal and ruled that the statute of limitations was inapplicable. Amoco, together with petitioner Atlantic Richfield sought review in the United States District Court for the District of Columbia, which agreed with the Assistant Secretary that 2415(a) did not govern the administrative order. Amoco Production The Court of Appeals for the District of Columbia Circuit affirmed, Amoco Production and we granted certiorari, in order to resolve the conflict between that decision and the contrary holding of the United States Court of Appeals for the Tenth Circuit in OXY USA, We now affirm. II A We start, of course, with the statutory text. Central Bank of Denver, Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Read in this way, the text of 2415(a) is quite clear. The statute of limitations imposed by 2415(a) applies when the Government commences any "action for money damages" by filing a "complaint" to enforce a contract, and the statute runs from the point when "the right of action accrues." The key terms in this provision—"action" and "complaint"—are ordinarily used in connection with judicial, not administrative, proceedings. In 19, when 2415(a) was enacted, a commonly used legal dictionary defined the term "right of action" as "[t]he right to bring suit; a legal right to maintain an action," with "suit" meaning "any proceeding in a court of justice." Black's Law Dictionary 1488, 1603 (4th ed.1951) (hereinafter Black's). Likewise, "complaint" was defined as "the first or initiatory pleading on the part of the plaintiff *644 in a civil action."[3] 56. See also Unexcelled Chemical 97 L. Ed. 8 (holding that filing a complaint, in the ordinary sense of the term, means filing a suit in court, not initiating an administrative proceeding: "Commencement of an action by the filing of a complaint has too familiar a history for us to assume that Congress did not mean to use the words in their ordinary sense"). The phrase "action for money damages" reinforces this reading because the term "damages" is generally used to mean "pecuniary compensation or indemnity, which may be recovered in the courts." Black's 4 Nothing in the language of 2415(a) suggests that Congress intended these terms to apply more broadly to administrative proceedings. On the contrary, 2415(a) distinguishes between judicial and administrative proceedings. Section 2415(a) provides that an "action" must commence "within one year after final decisions have been rendered in applicable administrative proceedings." Thus, Congress knew how to identify administrative proceedings and manifestly had two separate concepts in mind when it enacted 2415(a).[4] B In an effort to show that the term "action" is commonly used to refer to administrative, as well as judicial, proceedings, petitioners have cited numerous statutes and regulations that, petitioners claim, document this usage.[5] These examples, however, actually undermine petitioners' argument, since none of them uses the term "action" standing alone to refer to administrative proceedings. Rather, each example includes a modifier of some sort, referring to an "administrative action," a "civil or administrative action," or "administrative enforcement actions." This pattern of usage buttresses the point that the term "action," standing alone, ordinarily refers to a judicial proceeding. Petitioners contend that their broader interpretation of the statutory term "action" is supported by the reference to "every action for money damages" founded *645 upon "any contract." (a) But the broad terms "every" and "any" do not assist petitioners, as they do not broaden the ordinary meaning of the key term "action." Petitioners argue that their interpretation is supported by and 527 U.S. 2, but this reliance is misplaced. In Delaware Valley Citizens' Council, we construed the attorney's fee provision of the Clean Water Act (CWA), which authorizes a "court, in issuing any final order in any action brought pursuant to subsection (a) of this section, [to] award costs of litigation to any party." U.S.C. 7604(d). We permitted the recovery of fees both for work done in court and in subsequent administrative proceedings. But the pertinent statutory provision in that case did not employ the key terms that appear in the statute at issue here. Specifically, the CWA provision referred to "litigation," not to an "action" commenced by the filing of a "complaint." Moreover, "the work done by counsel [in the administrative phase of the case] was as necessary to the attainment of adequate relief. as was all of their earlier work in the courtroom obtaining the consent decree." And we expressly reserved judgment on the question "whether an award of attorney's fees is appropriate when there is no connected court action in which fees are recoverable." West helps petitioners even less. There, we considered whether the Equal Employment Opportunity Commission (EEOC) could order a federal agency to pay compensatory damages in an administrative proceeding. Section 717(b) of Title VII of the Civil Rights Act of 1964, U.S.C. e-16(b), authorized the EEOC to employ "appropriate remedies," but did not specifically authorize damages, and 717(c) authorized a subsequent court action against an employer agency, U.S.C. e-16(c). In 1991, Congress added Rev. Stat. 1977A(a)(1), U.S.C. 1981a(a)(1), which provided that "[i]n an action brought by a complaining party under section 706 or 717 the complaining party may recover compensatory " In West, the respondent employee argued that the enactment of 1981a(a)(1) showed that Congress did not consider compensatory damages to be "appropriate remedies" in an EEOC proceeding, as opposed to an action brought by an aggrieved employee. If Congress had wished to authorize the award of compensatory damages in an EEOC proceeding, the respondent employee reasoned, Congress would have so provided in 1981a(a)(l), by expressly cross-referencing 717(c). We rejected this argument, but in doing so we did not hold that an EEOC proceeding is an "action" under 1981a(a)(1). Rather, we simply concluded that the EEOC's authorization under 717(b) to award "appropriate remedies" was broad enough to encompass compensatory -2, For these reasons, we are not persuaded by petitioners' argument that the term "action" in 2415(a) applies to the administrative proceedings that follow the issuance of an MMS payment order. C We similarly reject petitioners' suggestion that an MMS letter or payment order constitutes a "complaint" within the meaning of 2415(a). Petitioners point to examples of statutes and regulations that employ the term "complaint" in the administrative context. See, e.g., 15 U.S.C. *646 45(b) (requiring the Federal Trade Commission to serve a "complaint" on a party suspected of engaging in an unfair method of competition); 29 CFR 102.15 But the occasional use of the term to describe certain administrative filings does not alter its primary meaning, which concerns the initiation of "a civil action." Black's 356. Moreover, even if the distinction between administrative and judicial proceedings is put aside, an MMS payment order lacks the essential attributes of a complaint. While a complaint is a filing that commences a proceeding that may in the end result in a legally binding order providing relief, an MMS payment order in and of itself imposes a legal obligation on the party to which it is issued. As noted, the failure to comply with such an order can result in fines of up to $10,000 a day. An MMS payment order, therefore, plays an entirely different role from that of a "complaint."[6] D To the extent that any doubts remain regarding the meaning of 2415(a), they are erased by the rule that statutes of limitations are construed narrowly against the government. E.I. Du Pont De Nemours & This canon is rooted in the traditional rule quod nullum tempus occurrit regi— time does not run against the King. Guaranty Trust A corollary of this rule is that when the sovereign elects to subject itself to a statute of limitations, the sovereign is given the benefit of the doubt if the scope of the statute is ambiguous. cited by petitioners, is not to the contrary. There, as here, the issue was the scope of a statute of limitations. The provision in that case, however, provided that "`[n]o suit or proceeding for the collection of any such taxes'" shall commence more than five years after the filing of the return. The Government argued that the terms "proceeding" and "suit" were coterminous, and urged further that any ambiguity should be resolved in its favor. The Court recognized the canon, restating it much as we have above. But the Court concluded that the canon had no application in that case because the text of the relevant statute, unlike 2415(a), applied clearly and separately to "suits" and "proceedings," and the Court saw no reason to give these different terms the same meaning. -350, E We come now to petitioners' argument that interpreting 2415(a) as applying only to judicial actions would render subsection (i) of the same statute superfluous. Subsection (i) provides as follows: "The provisions of this section shall not prevent the United States or an officer or agency thereof from collecting any claim of the United States by means of administrative offset, in accordance *647 with section 3716 of title" (i). An administrative offset is a mechanism by which the Government withholds payment of a debt that it owes another party in order to recoup a payment that this party owes the Government. U.S.C. 3701(a)(1). Thus, under subsection (i), the Government may recover a debt via an administrative offset even if the Government would be time barred under subsection (a) from pursuing the debt in court. Petitioners argue that, if 2415(a) applies only to judicial proceedings and not to administrative proceedings, there is no need for 2415(i)'s rule protecting a particular administrative mechanism (i.e., an administrative offset) from the statute of limitations set out in subsection (a). Invoking the canon against reading a statute in a way that makes part of the statute redundant, see, e.g., TRW petitioners contend that subsection (i) shows that subsection (a) was meant to apply to administrative, as well as judicial, proceedings. We disagree. As the Court of Appeals noted, subsection (i) was not enacted at the same time as subsection (a) but rather was added 16 years later by the Debt Collection Act of 1982. This enactment followed a dispute between the Office of the Comptroller General of the United States, head of the agency then named the General Accounting Office (GAO), and the Department of Justice's Office of Legal Counsel (OLC) over whether an administrative offset could be used to recoup a debt where a judicial recoupment action was already time barred. In 1978, in response to a question from the United States Civil Service Commission, OLC opined that an administrative offset could not be used to recoup a debt as to which a judicial action was already time barred. OLC reached this conclusion not because it believed that 2415(a) reached administrative proceedings generally,[7] but rather because of the particular purpose of an administrative offset. "Where [a] debt has not been reduced to judgment," OLC stated, "an administrative offset is merely a pre-judgment attachment device." Memorandum from John M. Harmon, Assistant Attorney General, OLC, to Alan K. Campbell, Chairman, U.S. Civil Service Commission Re: Effect of Statute of Limitations on Administrative Collection of United States Claims 3 (Sept. 29, 1978), Joint Lodging. OLC opined that a prejudgment attachment device such as this exists only to preserve funds to satisfy any judgment the creditor subsequently obtains. at 4 (citing cases). OLC therefore concluded that, where a lawsuit is already foreclosed by 2415(a), an administrative offset that is the functional equivalent of a pretrial attachment is also unavailable. GAO disagreed. See In re Collection of Debts—Statute of Limitations on Administrative Setoff, WL 14962 In its view, the question was answered by "[t]he general rule that statutes of limitations applicable to suits for debts or money demands bar or run only against the remedy (the right to bring suit) to which they apply and do not discharge the debt or extinguish, or even impair, the right or obligation, either in law or in fact, and the creditor may avail himself of every other lawful means of realizing on the debt or obligation. See Mascot Oil F.2d 309 affirmed ; and 33 Comp. Gen. WL 526 See also Ready-Mix Concrete 1 Ct. Cl. 204," That Congress had time barred the judicial remedy, GAO reasoned, imposed no limit on the administrative remedy. The OLC-GAO dispute reveals that, even under the interpretation of subsection (a)—the one we are adopting—that considers it applicable only to court proceedings, subsection (i) is not mere surplusage. It clarifies that administrative offsets are not covered by subsection (a) even if they are viewed as an adjunct of a court action. To accept petitioners' argument, on the other hand, we would have to hold either that 2415(a) applied to administrative actions when it was enacted in 19 or that it was extended to reach administrative actions when subsection (i) was added in 1982. The clear meaning of the text of 2415(a), which has not been amended, refutes the first of these propositions, and accepting the latter would require us to conclude that in 1982 Congress elected to enlarge 2415 to cover administrative proceedings by inserting text expressly excluding a single administrative vehicle from the statute's reach. It is entirely unrealistic to suggest that Congress would proceed by such an oblique and cryptic route. III Petitioners contend that interpreting 2415(a) as applying only to judicial actions results in a statutory scheme with peculiarities that Congress could not have intended. For example, petitioners note that while they are required by statute to preserve their records regarding royalty obligations for only seven years, 30 U.S.C. 1724(f), the interpretation of 2415(a) adopted by the Court of Appeals permits MMS to issue payment orders that reach back much further. We are mindful of the fact that a statute should be read where possible as effecting a "`symmetrical and coherent regulatory scheme,'" 146 L. Ed. 2d 1 but here petitioners' alternative interpretation of 2415(a) would itself result in disharmony. For instance, under FOGRSFA, MMS payment orders regarding oil and gas leases are now prospectively subject to a 7-year statute of limitations except with respect to obligations arising out of leases of Indian land. Consequently, if we agreed with petitioners that 2415(a) applies generally to administrative proceedings, payment orders relating to oil and gas royalties owed under leases of Indian land would be subject to a shorter (i.e., 6-year) statute of limitations than similar payment orders relating to leases of other public-domain lands (which would be governed by FOGRSFA's new 7-year statute). Particularly in light of Congress' exhortation that the Secretary of the Interior "aggressively carry out his trust responsibility in the administration of Indian oil and gas," 30 U.S.C. 1701(a)(4), it seems unlikely that Congress intended to impose a shorter statute of limitations for payment orders regarding Indian lands. Petitioners contend, finally, that interpreting 2415(a) as applying only to judicial actions would frustrate the statute's purposes of providing repose, ensuring that actions are brought while evidence is fresh, lightening recordkeeping burdens, and pressuring federal agencies to assert federal rights promptly. These are certainly cogent policy arguments, but they must be viewed in perspective. For one thing, petitioners overstate the scope of the problem, since Congress of *649 course can enact and has enacted specific statutes of limitations to govern specific administrative actions. See, e.g., U.S.C. 5205(a)(1) Indeed, in 1996, FOGRSFA imposed just such a limitation prospectively on all non-Indian land, oil, and gas lease claims. Second, and more fundamentally, the consequences of interpreting 2415(a) as limited to court actions must be considered in light of the traditional rule exempting proceedings brought by the sovereign from any time bar. There are always policy arguments against affording the sovereign this special treatment, and therefore in a case like this, where the issue is how far Congress meant to go when it enacted a statute of limitations applicable to the Government, arguing that an expansive interpretation would serve the general purposes of statutes of limitations is somewhat beside the point. The relevant inquiry, instead, is simply how far Congress meant to go when it enacted the statute of limitations in question. Here prior to the enactment of 2415(a) in 19, contract actions brought by the Government were not subject to any statute of limitations. See Guaranty Trust 304 U.S., at Absent congressional action changing this rule, it remains the law, and the text of 2415(a) betrays no intent to change this rule as it applies to administrative proceedings. In the final analysis, while we appreciate petitioners' arguments, they are insufficient to overcome the plain meaning of the statutory text. We therefore hold that the 6-year statute of limitations in 2415(a) applies only to court actions and not to the administrative proceedings involved in this case. * * * For these reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. It is so ordered. The CHIEF JUSTICE and Justice BREYER took no part in the consideration or decision of this case.

Justice Blackmun

majority

Manson v. Brathwaite

https://www.courtlistener.com/opinion/109693/manson-v-brathwaite/

https://www.courtlistener.com/api/rest/v3/clusters/109693/

1976-139

This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court's decisions in Stovall v. Denno, 388 U.S. 293 (1967), and Neil v. Biggers, 409 U.S. 188 (1972), are particularly implicated. I Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about *100 7:45 p. m., e. d. t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from "Dickie Boy" Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68.[1] Glover and Brown entered the building, observed by backup Officers D'Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.[2] The area was illuminated by natural light from a window in the third floor hallway. Id., at 27-28. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for "two things" of narcotics. Id., at 29. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.[3] While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the *101 time the door first opened until it closed the second time. Id., at 30-33. Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D'Onofrio and Gaffey. Glover at that time did not know the identity of the seller. Id., at 36. He described him as being "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt." Id., at 36-37. D'Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover's office. D'Onofrio was not acquainted with respondent personally, but did know him by sight and had seen him "[s]everal times" prior to May 5. Id., at 63-65. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. Id., at 36-38. The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Id., at 75-76. Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5.[4] Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn. Gen. Stat. (Rev. of 1958, as amended in 1969), §§ 19-481a and 19-480a *102 (1977).[5] At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, "there [was] no doubt whatsoever" in his mind that the person shown on the photograph was respondent. Id., at 41-42. Glover also made a positive in-court identification without objection. Id., at 37-38. No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup. Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment ("a lot of back pains, muscle spasms . . . a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus," id., at 106), and that at no time on that particular day had he been at 201 Westland. Id., at 106, 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Id., at 164-165. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. Id., at 129-131. The physician found respondent, subjectively, "in great discomfort." Id., at 135. Respondent in fact underwent surgery for a herniated disc at L5 and S1 on August 17. Id., at 157. The jury found respondent guilty on both counts of the information. He received a sentence of not less than six nor *103 more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. State v. Brathwaite, 164 Conn. 617, 325 A.2d 284 (1973). That court noted the absence of an objection to Glover's in-court identification and concluded that respondent "has not shown that substantial injustice resulted from the admission of this evidence." Id., at 619, 325 A.2d, at 285. Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Ibid. Fourteen months later, respondent filed a petition for habeas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court's review of the state trial transcript,[6] dismissed respondent's petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.[7] 527 F.2d 363 (1975). In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of reliability, *104 because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari. 425 U.S. 957 (1976). II Stovall v. Denno, supra, decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim's wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice "has been widely condemned," 388 U.S., at 302, but it concluded that "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it." Ibid. In that case, showing Stovall to the victim's spouse "was imperative." The Court then quoted the observations of the Court of Appeals, 355 F.2d 731, 735 (CA2 1966), to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, "`the usual police station line-up . . . was out of the question.'" 388 U.S., at 302. *105 Neil v. Biggers, supra, decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim's visual and voice identification of Biggers at a station-house showup seven months after the crime. The victim had been in her assailant's presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had "no doubt" that Biggers was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, Simmons v. United States, 390 U.S. 377 (1968); Foster v. California, 394 U.S. 440 (1969); and Coleman v. Alabama, 399 U.S. 1 (1970).[8] The Court concluded that *106 general guidelines emerged from these cases "as to the relationship between suggestiveness and misidentification." The "admission of evidence of a showup without more does not violate due process." 409 U.S., at 198. The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this "would be a seriously negative factor in most cases." Id., at 201. The "central question," however, was "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Id., at 199. Applying that test, the Court found "no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury." Id., at 201. Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.[9] In one passage, *107 however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court's first indication that a suggestive procedure might lead to the exclusion of evidence. Id., at 199. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stovall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall. III In the present case the District Court observed that the "sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover." App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id., at 9a. Biggers and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that "this type of identification procedure [display of a single photograph] is impermissibly *108 suggestive," and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors Biggers specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a "couple of minutes." There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover "certainly was paying attention to identify the seller." Id., at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D'Onofrio. The reliability of this description was supported by the fact that it enabled D'Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had "no doubt" that Brathwaite was the person who had sold him heroin. The Court of Appeals confirmed that the exhibition of the single photograph to Glover was "impermissibly suggestive," 527 F.2d, at 366, and felt that, in addition, "it was unnecessarily so." Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, "a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand." Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle "requiring the exclusion of identifications resulting from `unnecessarily suggestive confrontation'" in post-Stovall situations. 527 F.2d, at 368. The court also concluded that for post-Stovall identifications, Biggers had not changed the existing rule. Thus: "Evidence of an identification unnecessarily obtained by impermissibly *109 suggestive means must be excluded under Stovall . . . . No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification." 527 F.2d, at 371. Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover's duty as an undercover agent as one "to cause arrests to be made," and his description of the suspect as one that "could have applied to hundreds of Hartford black males." Ibid. The in-court identification had "little meaning," for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a "not implausible" explanation from the respondent, "although evidently not credited by the jury." And the court was troubled by "the long and unexplained delay" in the arrest. It was too great a danger that the respondent was convicted because he was a man D'Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey's apartment, rather than because Glover "really remembered him as the seller." Id., at 371-372. IV Petitioner at the outset acknowledges that "the procedure in the instant case was suggestive [because only one photograph was used] and unnecessary" [because there was no emergency or exigent circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment's guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind. *110 Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, 26 Stan. L. Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.[10] The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated "fair assurance against the awful risks of misidentification." 527 F.2d, at 371. See Smith v. Coiner, 473 F.2d 877, 882 (CA4), cert. denied sub nom. Wallace v. Smith, 414 U.S. 1115 (1973). The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F.2d 397, 407-408 (CA7) (opinion by Judge, now MR. JUSTICE, STEVENS), cert. denied, 421 U.S. 1016 (1975); Stanley v. Cox, 486 F.2d 48 *111 (CA4 1973), cert. denied sub nom. Stanley v. Slayton, 416 U.S. 958 (1974).[11] MR. JUSTICE STEVENS, in writing for the Seventh Circuit in Kirby, supra, observed: "There is surprising unanimity among scholars in regarding such a rule [the per se approach] as essential to avoid serious risk of miscarriage of justice." 510 F.2d, at 405. He pointed out that well-known federal judges have taken the position that "evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure." Id., at 406. Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code) frowns upon the use of a showup or the display of only a single photograph. The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation "the Court had hoped [United States v.] Wade[, 388 U.S. 218, 239 (1967),] would engender," Brief for Respondent 15, has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate. There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 *112 U. S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant. The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.[12] The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach— *113 cases in which the identification is reliable despite an unnecessarily suggestive identification procedure—reversal is a Draconian sanction.[13] Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in Brewer v. Williams, 430 U.S. 387 (1977). See also United States v. Janis, 428 U.S. 433 (1976). It is true, as has been noted, that the Court in Biggers referred to the pre-Stovall character of the confrontation in that case. 409 U.S., at 199. But that observation was only one factor in the judgmental process. It does not translate into a holding that post-Stovall confrontation evidence automatically is to be excluded. The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U.S. 783, 790 (1977); Rochin v. California, 342 U.S. 165, 170-172 (1952). Stovall, with its reference to "the totality of the circumstances," 388 U.S., at 302, and Biggers, with its continuing stress on the same totality, 409 U.S., at 199, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre-Biggers and of a pre-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.[14] *114 We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U. S., at 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. V We turn, then, to the facts of this case and apply the analysis: 1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment. *115 2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty—and specialized and dangerous duty—when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of "hundreds of Hartford black males," as the Court of Appeals stated. 527 F.2d, at 371. It is true that Glover's duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial. 3. The accuracy of the description. Glover's description was given to D'Onofrio within minutes after the transaction. It included the vendor's race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D'Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D'Onofrio produced and identified its subject as the narcotics seller. 4. The witness' level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: "There is no question whatsoever." Tr. 38. This positive assurance was repeated. Id., at 41-42. 5. The time between the crime and the confrontation. Glover's description of his vendor was given to D'Onofrio *116 within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph. These indicators of Glover's ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U. S., at 383, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D'Onofrio had left the photograph at Glover's office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection. Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.[15] Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." Id., at 384. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. *117 Of course, it would have been better had D'Onofrio presented Glover with a photographic array including "so far as practicable . . . a reasonable number of persons similar to any person then suspected whose likeness is included in the array." Model Code § 160.2 (2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D'Onofrio's failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.[16] We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here. The judgment of the Court of Appeals is reversed. It is so ordered. MR.

This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court's decisions in and are particularly implicated. I Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about *100 7:45 p. m., e. d. t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building Westland, in Hartford, for the purpose of purchasing narcotics from "Dickie Boy" Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68.[1] Glover and Brown entered the building, observed by backup Officers D'Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.[2] The area was illuminated by natural light from a window in the third floor hallway. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for "two things" of narcotics. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.[3] While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the *101 time the door first opened until it closed the second time. Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D'Onofrio and Gaffey. Glover at that time did not know the identity of the seller. He described him as being "a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt." -37. D'Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover's office. D'Onofrio was not acquainted with respondent personally, but did know him by sight and had seen him "[s]everal times" prior to May 5. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. -38. The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 Westland. This was the apartment at which the narcotics sale had taken place on May 5.[4] Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn. Gen. Stat. 19-481a and 19-480a *102[5] At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, "there [was] no doubt whatsoever" in his mind that the person shown on the photograph was respondent. Glover also made a positive in-court identification without objection. No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup. Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment ("a lot of back pains, muscle spasms a bad heart high blood pressure neuralgia in my face, and sinus," ), and that at no time on that particular day had he been Westland. 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. The physician found respondent, subjectively, "in great discomfort." Respondent in fact underwent surgery for a herniated disc at L5 and S1 on August 17. The jury found respondent guilty on both counts of the information. He received a sentence of not less than six nor *103 more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. That court noted the absence of an objection to Glover's in-court identification and concluded that respondent "has not shown that substantial injustice resulted from the admission of this evidence." Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Fourteen months later, respondent filed a petition for habeas corpus in the United District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court's review of the state trial transcript,[6] dismissed respondent's petition. On appeal, the United Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.[7] In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of reliability, *104 because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari. II decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim's wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice "has been widely condemned," but it concluded that "a claimed violation of due process of law in the conduct of a confrontation depends on the of the circumstances surrounding it." In that case, showing Stovall to the victim's spouse "was imperative." The Court then quoted the observations of the Court of Appeals, to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, "`the usual police station line-up was out of the question.'" *105 decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim's visual and voice identification of at a station-house showup seven months after the crime. The victim had been in her assailant's presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had "no doubt" that was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, ; ; and[8] The Court concluded that *106 general guidelines emerged from these cases "as to the relationship between suggestiveness and misidentification." The "admission of evidence of a showup without more does not violate due process." The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this "would be a seriously negative factor in most cases." The "central question," however, was "whether under the ` of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Applying that test, the Court found "no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury." well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.[9] In one passage, *107 however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court's first indication that a suggestive procedure might lead to the exclusion of evidence. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stovall. The question before us, then, is simply whether the analysis applies to post-Stovall confrontations as well to those pre-Stovall. III In the present case the District Court observed that the "sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover." App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. at 9a. and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that "this type of identification procedure [display of a single photograph] is impermissibly *108 suggestive," and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a "couple of minutes." There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover "certainly was paying attention to identify the seller." at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D'Onofrio. The reliability of this description was supported by the fact that it enabled D'Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had "no doubt" that Brathwaite was the person who had sold him heroin. The Court of Appeals confirmed that the exhibition of the single photograph to Glover was "impermissibly suggestive," 527 F.2d, 6, and felt that, in addition, "it was unnecessarily so." 7. There was no emergency and little urgency. The court said that prior to the decision in except in cases of harmless error, "a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand." It noted what it felt might be opposing inferences to be drawn from passages in but concluded that the case preserved the principle "requiring the exclusion of identifications resulting from `unnecessarily suggestive confrontation'" in post-Stovall 527 F.2d, 8. The court also concluded that for post-Stovall identifications, had not changed the existing rule. Thus: "Evidence of an identification unnecessarily obtained by impermissibly *109 suggestive means must be excluded under Stovall No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification." Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover's duty as an undercover agent as one "to cause arrests to be made," and his description of the suspect as one that "could have applied to hundreds of Hartford black males." The in-court identification had "little meaning," for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a "not implausible" explanation from the respondent, "although evidently not credited by the jury." And the court was troubled by "the long and unexplained delay" in the arrest. It was too great a danger that the respondent was convicted because he was a man D'Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey's apartment, rather than because Glover "really remembered him as the seller." IV Petitioner at the outset acknowledges that "the procedure in the instant case was suggestive [because only one photograph was used] and unnecessary" [because there was no emergency or exigent circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment's guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind. *110 Since the decision in the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, : The Supreme Court Dismantles the Wade Trilogy's Due Process Protection, The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.[10] The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated "fair assurance against the awful risks of misidentification." See (CA4), cert. denied sub nom. The second, or more lenient, approach is one that continues to rely on the of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United ex rel. (CA7) (opinion by Judge, now MR. JUSTICE, STEVENS), cert. denied, ; cert. denied sub nom.[11] MR. JUSTICE STEVENS, in writing for the Seventh Circuit in observed: "There is surprising unanimity among scholars in regarding such a rule [the per se approach] as essential to avoid serious risk of miscarriage of justice." He pointed out that well-known federal judges have taken the position that "evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure." Indeed, the ALI Model Code of Pre-Arraignment Procedure 160.1 and 160.2 (hereafter Model Code) frowns upon the use of a showup or the display of only a single photograph. The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation "the Court had hoped [United v.] Wade[,] would engender," Brief for Respondent 15, has not been forthcoming. He argues that a rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate. There are, of course, several interests to be considered and taken into account. The driving force behind United and Stovall, all decided on the same day, was the Court's concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant. The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.[12] The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the approach— *113 cases in which the identification is reliable despite an unnecessarily suggestive identification procedure—reversal is a Draconian sanction.[13] Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in See also United It is true, as has been noted, that the Court in referred to the pre-Stovall character of the confrontation in that 409 U.S., But that observation was only one factor in the judgmental process. It does not translate into a holding that post-Stovall confrontation evidence automatically is to be excluded. The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United ; Stovall, with its reference to "the of the circumstances," and with its continuing stress on the same 409 U.S., did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre- and of a pre-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.[14] *114 We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in 409 U. S., -200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. V We turn, then, to the facts of this case and apply the analysis: 1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment. *115 2. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty—and specialized and dangerous duty—when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of "hundreds of Hartford black males," as the Court of Appeals stated. It is true that Glover's duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial. 3. The accuracy of the description. Glover's description was given to D'Onofrio within minutes after the transaction. It included the vendor's race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D'Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D'Onofrio produced and identified its subject as the narcotics seller. 4. The witness' level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: "There is no question whatsoever." Tr. 38. This positive assurance was repeated. 5. The time between the crime and the confrontation. Glover's description of his vendor was given to D'Onofrio *116 within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph. These indicators of Glover's ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D'Onofrio had left the photograph at Glover's office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection. Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.[15] Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. *117 Of course, it would have been better had D'Onofrio presented Glover with a photographic array including "so far as practicable a reasonable number of persons similar to any person then suspected whose likeness is included in the array." Model Code 160.2 (2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D'Onofrio's failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.[16] We conclude that the criteria laid down in are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here. The judgment of the Court of Appeals is reversed. It is so ordered. MR.

Justice Alito

majority

Water Splash, Inc. v. Menon

https://www.courtlistener.com/opinion/4393430/water-splash-inc-v-menon/

https://www.courtlistener.com/api/rest/v3/clusters/4393430/

2016-056

This case concerns the scope of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U. S. T. 361, T. I. A. S. No. 6638. The purpose of that multilateral treaty is to simplify, standardize, and generally improve the process of serving documents abroad. Preamble, ibid.; see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988). To that end, the Hague Service Convention specifies cer­ tain approved methods of service and “pre-empts incon­ sistent methods of service” wherever it applies. Id., at 699. Today we address a question that has divided the lower courts: whether the Convention prohibits service by mail. We hold that it does not. I A Petitioner Water Splash is a corporation that produces aquatic playground systems. Respondent Menon is a former employee of Water Splash. In 2013, Water Splash sued Menon in state court in Texas, alleging that she had begun working for a competitor while still employed by 2 WATER SPLASH, INC. v. MENON Opinion of the Court Water Splash. 472 S.W.3d 28, 30 (Tex. App. 2015). Water Splash asserted several causes of action, including unfair competition, conversion, and tortious interference with business relations. Because Menon resided in Can­ ada, Water Splash sought and obtained permission to effect service by mail. Ibid. After Menon declined to answer or otherwise enter an appearance, the trial court issued a default judgment in favor of Water Splash. Menon moved to set aside the judgment on the ground that she had not been properly served, but the trial court denied the mo­ tion. Ibid. Menon appealed, arguing that service by mail does not “comport with the requirements of the Hague Service Convention.” Ibid. The Texas Court of Appeals majority sided with Menon and held that the Convention prohibits service of process by mail. Id., at 32. Justice Christopher dissented. Id., at 34. The Court of Appeals declined to review the matter en banc, App. 95–96, and the Texas Supreme Court denied discretionary review, id., at 97–98. The disagreement between the panel majority and Justice Christopher tracks a broader conflict among courts as to whether the Convention permits service through postal channels. Compare, e.g., Bankston v. Toyota Motor Corp., 889 F.2d 172, 173–174 (CA8 1989) (holding that the Convention prohibits service by mail), and Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 385 (CA5 2002) (same), with, e.g., Brockmeyer v. May, 383 F.3d 798, 802 (CA9 2004) (holding that the Convention allows service by mail), and Ackermann v. Levine, 788 F.2d 830, 838–840 (CA2 1986) (same). We granted certio­ rari to resolve that conflict. 580 U. S. ___ (2016). B The “primary innovation” of the Hague Service Conven­ tion—set out in Articles 2–7—is that it “requires each state to establish a central authority to receive requests Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court for service of documents from other countries.” Schlunk, supra, at 698. When a central authority receives an ap­ propriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service, Art. 6. Submitting a request to a central authority is not, how­ ever, the only method of service approved by the Conven­ tion. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not other­ wise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via meth­ ods not otherwise allowed by the Convention. At issue in this case is Article 10 of the Convention, the English text of which reads as follows: “Provided the State of destination does not object, the present Convention shall not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad, “(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect ser­ vice of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, “(c) the freedom of any person interested in a judi­ cial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” 20 U. S. T., at 363. Articles 10(b) and 10(c), by their plain terms, address additional methods of service that are permitted by the Convention (unless the receiving state objects). By con­ trast, Article 10(a) does not expressly refer to “service.” The question in this case is whether, despite this textual 4 WATER SPLASH, INC. v. MENON Opinion of the Court difference, the Article 10(a) phrase “send judicial docu­ ments” encompasses sending documents for the purposes of service. II A In interpreting treaties, “we begin with the text of the treaty and the context in which the written words are used.” Schlunk, 486 U.S., at 699 (internal quotation marks omitted). For present purposes, the key word in Article 10(a) is “send.” This is a broad term,1 and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service). Moreover, the structure of the Hague Service Convention strongly counsels against such a reading. The key structural point is that the scope of the Conven­ tion is limited to service of documents. Several elements of the Convention indicate as much. First, the preamble states that the Convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” (Emphasis added.) And Article 1 defines the Con­ vention’s scope by stating that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Emphasis added.) Even the Conven­ tion’s full title reflects that the Convention concerns “Ser­ vice Abroad.” We have also held as much. Schlunk, 486 U.S., at 701 (stating that the Convention “applies only to documents transmitted for service abroad”). As we explained, a pre­ liminary draft of Article 1 was criticized “because it sug­ gested that the Convention could apply to transmissions —————— 1 See Black’s Law Dictionary 1568 (10th ed. 2014) (defining “send,” in part, as “[t]o cause to be moved or conveyed from a present location to another place; esp., to deposit (a writing or notice) in the mail”). Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court abroad that do not culminate in service.” Ibid. The final version of Article 1, however, “eliminates this possibility.” Ibid. The wording of Article 1 makes clear that the Con­ vention “applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.” Ibid. In short, the text of the Convention reveals, and we have explicitly held, that the scope of the Convention is limited to service of documents. In light of that, it would be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents. Indeed, under that reading, Article 10(a) would be su­ perfluous. The function of Article 10 is to ensure that, absent objection from the receiving state, the Convention “shall not interfere” with the activities described in 10(a), 10(b) and 10(c). But Article 1 already “eliminates [the] possibility” that the Convention would apply to any com­ munications that “do not culminate in service,” id., at 701, so it is hard to imagine how the Convention could interfere with any non-service communications. Accordingly, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service. Menon attempts to avoid this superfluity problem by suggesting that Article 10(a) does refer to serving docu­ ments—but only some documents. Specifically, she makes a distinction between two categories of service. According to Menon, Article 10(a) does not apply to service of process (which we have defined as “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action,” id., at 700)). But Article 10(a) does apply, Menon suggests, to the service of “post-answer judicial documents” (that is, any additional documents which may have to be served later in the litigation). Brief for Respondent 30–31. The problem with this argument is 6 WATER SPLASH, INC. v. MENON Opinion of the Court that it lacks any plausible textual footing in Article 10.2 If the drafters wished to limit Article 10(a) to a particu­ lar subset of documents, they presumably would have said so—as they did, for example, in Article 15, which refers to “a writ of summons or an equivalent document.” Instead, Article 10(a) uses the term “judicial documents”—the same term that is featured in 10(b) and 10(c). Accord- ingly, the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom. And it certainly derives no support from the use of the word “send,” whose ordinary meaning is broad enough to cover the transmission of any judicial documents (including litigation-initiating documents). Nothing about the word “send” suggests that Article 10(a) is narrower than 10(b) and 10(c), let alone that Article 10(a) is somehow limited to “post-answer” documents. Ultimately, Menon wishes to read the phrase “send judicial documents” as “serve a subset of judicial docu­ ments.” That is an entirely atextual reading, and Menon offers no sustained argument in support of it. Therefore, the only way to escape the conclusion that Article 10(a) includes service of process is to assert that it does not cover service of documents at all—and, as shown above, that reading is structurally implausible and renders Arti­ cle 10(a) superfluous. —————— 2 The argument also assumes that the scope of the Convention is not limited to service of process (otherwise, Article 10(a) would be superflu­ ous even under Menon’s reading). Schlunk can be read to suggest that this assumption is wrong. 486 U.S., at 700–701; see 1 B. Ristau, International Judicial Assistance §4–1–4(2), p. 112 (1990 rev. ed.) (Ristau) (stating that the English term “service” in the Convention “means the formal delivery of a legal document to the addressee in such a manner as to legally charge him with notice of the institution of a legal proceeding”). For the purposes of this discussion, we will assume, arguendo, that Menon’s assumption is correct. Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court B The text and structure of the Hague Service Convention, then, strongly suggest that Article 10(a) pertains to ser­ vice of documents. The only significant counterargument is that, unlike many other provisions in the Convention, Article 10(a) does not include the word “service” or any of its variants. The Article 10(a) phrase “send judicial docu­ ments,” the argument goes, should mean something differ­ ent than the phrase “effect service of judicial documents” in the other two subparts of Article 10. This argument does not win the day for several reasons. First, it must contend with the compelling structural considerations discussed above. See Air France v. Saks, 470 U.S. 392, 397 (1985) (treaty interpretation must take account of the “context in which the written words are used”); cf. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 13) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices”). Second, the argument fails on its own terms. Assume for a second that the word “send” must mean something other than “serve.” That would not imply that Article 10(a) must exclude service. Instead, “send[ing]” could be a broader concept that includes service but is not limited to it. That reading of the word “send” is probably more plau­ sible than interpreting it to exclude service, and it does not create the same superfluity problem.3 Third, it must be remembered that the French version of —————— 3 Another plausible explanation for the distinct terminology of Article 10(a) is that it is the only provision in the Convention that specifically contemplates direct service, without the use of an intermediary. See Brief for United States as Amicus Curiae 13 (“[I]n contrast to Article 10(a), all other methods of service identified in the Convention require the affirmative engagement of an intermediary to effect ‘service’ ”). The use of the word “send” may simply have been intended to reflect that distinction. 8 WATER SPLASH, INC. v. MENON Opinion of the Court the Convention is “equally authentic” to the English ver­ sion. Schlunk, 486 U.S., at 699. Menon does not seri- ously engage with the Convention’s French text. But the word “adresser”—the French counterpart to the word “send” in Article 10(a)—“has been consistently interpreted as meaning service or notice.” Hague Conference on Pri­ vate Int’l Law, Practical Handbook on the Operation of the Service Convention ¶279, p. 91 (4th ed. 2016). In short, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(a)’s meaning. And when a treaty provision is ambigu­ ous, the Court “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Schlunk, supra, at 700 (internal quotation marks omitted). As discussed below, these traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash’s favor. III Three extratextual sources are especially helpful in ascertaining Article 10(a)’s meaning: the Convention’s drafting history, the views of the Executive, and the views of other signatories. Drafting history has often been used in treaty interpre­ tation. See Medellín v. Texas, 552 U.S. 491, 507 (2008); Saks, supra, at 400; see also Schlunk, supra, at 700 (ana­ lyzing the negotiating history of the Hague Service Con­ vention). Here, the Convention’s drafting history strongly suggests that Article 10(a) allows service through postal channels. Philip W. Amram was the member of the United States delegation who was most closely involved in the drafting of the Convention. See S. Exec. Rep. No. 6, 90th Cong., 1st Sess. 5 (App.) (1967) (S. Exec. Rep.) (statement of State Department Deputy Legal Adviser Richard D. Kearney). Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court A few months before the Convention was signed, he pub­ lished an article describing and summarizing it. In that article, he stated that “Article 10 permits direct service by mail . . . unless [the receiving] state objects to such ser­ vice.” The Proposed International Convention on the Service of Documents Abroad, 51 A. B. A. J. 650, 653 (1965).4 Along similar lines, the Rapporteur’s report on a draft version of Article 10—which did not materially differ from the final version—stated that the “provision of paragraph 1 also permits service . . . by telegram” and that the draft­ ers “did not accept the proposal that postal channels be limited to registered mail.” 1 Ristau §4–3–5(a), at 149. In other words, it was clearly understood that service by postal channels was permissible, and the only question was whether it should be limited to registered mail. The Court also gives “great weight” to “the Executive Branch’s interpretation of a treaty.” Abbott v. Abbott, 560 U.S. 1, 15 (2010) (internal quotation marks omitted). In the half century since the Convention was adopted, the Executive has consistently maintained that the Hague Service Convention allows service by mail. When President Johnson transmitted the Convention to the Senate for its advice and consent, he included a report by Secretary of State Dean Rusk. That report stated that “Article 10 permits direct service by mail . . . unless [the receiving] state objects to such service.” Convention on the Service Abroad of Judicial and Extrajudicial Docu­ ments in Civil or Commercial Matters: Message From the President of the United States, S. Exec. Doc. C, 90th Cong., 1st Sess., 5 (1967). —————— 4 Two years later, Amram testified to the same effect before the Sen­ ate Foreign Relations Committee. S. Exec. Rep., at 13 (stating that service by central authority “is not obligatory,” and that other available techniques included “direct service by mail”). 10 WATER SPLASH, INC. v. MENON Opinion of the Court In 1989, the Eighth Circuit issued Bankston, the first Federal Court of Appeals decision holding that the Hague Service Convention prohibits service by mail. 889 F.2d, at 174. The State Department expressed its disagreement with Bankston in a letter addressed to the Administrative Office of the U. S. Courts and the National Center for State Courts. See Notice of Other Documents (1), United States Department of State Opinion Regarding the Bank­ ston Case and Service by Mail to Japan Under the Hague Service Convention, 30 I. L. M. 260, 260–261 (1991) (ex­ cerpts of Mar. 14, 1990, letter). The letter stated that “Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country.” Id., at 261. The State Department takes the same position on its website.5 Finally, this Court has given “considerable weight” to the views of other parties to a treaty. Abbott, 560 U.S., at 16 (internal quotation marks omitted); see Lozano v. Montoya Alvarez, 572 U. S. ___, ___ (2014) (slip op., at 9) (noting the importance of “read[ing] the treaty in a man­ ner consistent with the shared expectations of the con­ tracting parties” (internal quotation marks omitted)). And other signatories to the Convention have consistently adopted Water Splash’s view. Multiple foreign courts have held that the Hague Ser­ —————— 5 Dept. of State, Legal Considerations: International Judicial Assis­ tance: Service of Process (stating that “[s]ervice by registered . . . mail . . . is an option in many countries in the world,” but that it “should . . . not be used in the countries party to the Hague Service Conven- tion that objected to the method described in Article 10(a) (postal channels)”), online at https://travel.state.gov/content/travel/en/legal­ considerations/judicial/service-of-process.html (all Internet materials as last visited May 19, 2017). Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court vice Convention allows for service by mail.6 In addition, several of the Convention’s signatories have either objected, or declined to object, to service by mail under Article 10, thereby acknowledging that Article 10 encompasses service by mail.7 Finally, several Special Commissions— comprising numerous contracting States—have expressly stated that the Convention does not prohibit service by mail.8 By contrast, Menon identifies no evidence that any —————— 6 See, e.g., Wang v. Lin, [2016] 132 O. R. 3d 48, 61 (Can. Ont. Sup. Ct. J.); Crystal Decisions (U. K.), Ltd. v. Vedatech Corp., EWHC (Ch) 1872 (2004), 2004 WL 1959749 ¶21 (High Court, Eng.); R. v. Re Recognition of an Italian Judgt., 2000 WL 33541696, ¶4 (D. F. Thes. 2000); Case C– 412/97, ED Srl v. Italo Fenocchio, 1999 E. C. R. I–3845, 3877–3878, ¶6 [2000] 3 Cow. M. L. R. 855; see also Brockmeyer v. May, 383 F.3d 798, 802 (CA9 2004) (noting that foreign courts are “essentially unanimous” in the view “that the meaning of ‘send’ in Article 10(a) includes ‘serve’ ”). 7 Canada, for example, has stated that it “does not object to service by postal channels.” By contrast, the Czech Republic has adopted Czecho­ slovakia’s position that “judicial documents may not be served . . . through postal channels.” Dutch Govt. Treaty Database: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Parties With Reservations, Declarations and Objections, (entries for Canada and the Czech Republic) on- line at https://treatydatabase.overheid.nl/en/Verdrag/Details/004235_b; see also, e.g., ibid. (entries for Latvia, Australia, and Slovenia). In addition, some states have objected to all of the channels of transmis­ sion listed in Article 10, referring to them collectively with the term “service.” See, e.g., ibid. (entries for Bulgaria, Hungary, Kuwait, and Turkey). 8 Hague Conference on Private International Law, Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions ¶55, p. 11 (Oct. 28–Nov. 4, 2003) (“reaffirm[ing]” the Special Commis­ sion’s “clear understanding that the term ‘send’ in Article 10(a) is to be understood as meaning ‘service’ through postal channels”), online at https://assets.hcch.net/upload/wop/lse_concl_e.pdf; Hague Conference on Private International Law, Report on the Work of the Special Commission of April 1989 on the Operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudi­ cial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ¶16, 12 WATER SPLASH, INC. v. MENON Opinion of the Court signatory has ever rejected Water Splash’s view. * * * In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with . . . the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not ob­ jected to service by mail; and second, service by mail is authorized under otherwise-applicable law. See Brock­ meyer, 383 F.3d, at 803–804. Because the Court of Appeals concluded that the Con­ vention prohibited service by mail outright, it had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash. We leave that question, and any other remaining issues, to be considered on remand to the extent they are properly preserved. For these reasons, we vacate the judgment of the Court of Appeals, and we remand the case for further proceed­ ings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. —————— p. 5 (Apr. 1989) (criticizing “certain courts in the United States” which “had concluded that service of process abroad by mail was not permit­ ted under the Convention”), online at https://assets.hcch.net/upload/ scrpt89e_20.pdf; Report on the Work of the Special Commission on the Operation of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 21– 25 1977, 17 I. L. M. 312, 326 (1978) (observing that “most of the States made no objection to the service of judicial documents coming from abroad directly by mail in their territory” (emphasis added))

This case concerns the scope of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U. S. T. 361, T. I. A. S. No. 6638. The purpose of that multilateral treaty is to simplify, standardize, and generally improve the process of serving documents abroad. Preamble, ; see Volkswagenwerk To that end, the Hague Service Convention specifies cer­ tain approved methods of service and “pre-empts incon­ sistent methods of service” wherever it applies. at 699. Today we address a question that has divided the lower courts: whether the Convention prohibits service by mail. We hold that it does not. I A Petitioner Water Splash is a corporation that produces aquatic playground systems. Respondent Menon is a former employee of Water Splash. In 2013, Water Splash sued Menon in state court in Texas, alleging that she had begun working for a competitor while still employed by 2 WATER SPLASH, Water Splash asserted several causes of action, including unfair competition, conversion, and tortious interference with business relations. Because Menon resided in Can­ ada, Water Splash sought and obtained permission to effect service by mail. After Menon declined to answer or otherwise enter an appearance, the trial court issued a default judgment in favor of Water Splash. Menon moved to set aside the judgment on the ground that she had not been properly served, but the trial court denied the mo­ tion. Menon appealed, arguing that service by mail does not “comport with the requirements of the Hague Service Convention.” The Texas Court of Appeals majority sided with Menon and held that the Convention prohibits service of process by mail. Justice Christopher dissented. The Court of Appeals declined to review the matter en banc, App. 95–96, and the Texas Supreme Court denied discretionary review, at 97–98. The disagreement between the panel majority and Justice Christopher tracks a broader conflict among courts as to whether the Convention permits service through postal channels. Compare, e.g., (holding that the Convention prohibits service by mail), and Nuovo Pignone, (CA5 2002) (same), with, e.g., 383 F.3d 798, (CA9 2004) (holding that the Convention allows service by mail), and Ackermann v. Levine, 788 F.2d 8, 838–840 (CA2 1986) (same). We granted certio­ rari to resolve that conflict. 580 U. S. (2016). B The “primary innovation” of the Hague Service Conven­ tion—set out in Articles 2–7—is that it “requires each state to establish a central authority to receive requests Cite as: 581 U. S. (2017) 3 Opinion of the Court for service of documents from other countries.” at When a central authority receives an ap­ propriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service, Art. 6. Submitting a request to a central authority is not, how­ ever, the only method of service approved by the Conven­ tion. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not other­ wise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via meth­ ods not otherwise allowed by the Convention. At issue in this case is Article 10 of the Convention, the English text of which reads as follows: “Provided the State of destination does not object, the present Convention shall not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad, “(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect ser­ vice of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, “(c) the freedom of any person interested in a judi­ cial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” 20 U. S. T., at 363. Articles 10(b) and 10(c), by their plain terms, address additional methods of service that are permitted by the Convention (unless the receiving state objects). By con­ trast, Article 10(a) does not expressly refer to “service.” The question in this case is whether, despite this textual 4 WATER SPLASH, INC. v. MENON Opinion of the Court difference, the Article 10(a) phrase “send judicial docu­ ments” encompasses sending documents for the purposes of service. II A In interpreting treaties, “we begin with the text of the treaty and the context in which the written words are used.” (internal quotation marks omitted). For present purposes, the key word in Article 10(a) is “send.” This is a broad term,1 and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service). Moreover, the structure of the Hague Service Convention strongly counsels against such a reading. The key structural point is that the scope of the Conven­ tion is limited to service of documents. Several elements of the Convention indicate as much. First, the preamble states that the Convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” (Emphasis added.) And Article 1 defines the Con­ vention’s scope by stating that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Emphasis added.) Even the Conven­ tion’s full title reflects that the Convention concerns “Ser­ vice Abroad.” We have also held as much. (stating that the Convention “applies only to documents transmitted for service abroad”). As we explained, a pre­ liminary draft of Article 1 was criticized “because it sug­ gested that the Convention could apply to transmissions —————— 1 See Black’s Law Dictionary 1568 (10th ed. 2014) (defining “send,” in part, as “[t]o cause to be moved or conveyed from a present location to another place; esp., to deposit (a writing or notice) in the mail”). Cite as: 581 U. S. (2017) 5 Opinion of the Court abroad that do not culminate in service.” The final version of Article 1, however, “eliminates this possibility.” The wording of Article 1 makes clear that the Con­ vention “applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.” In short, the text of the Convention reveals, and we have explicitly held, that the scope of the Convention is limited to service of documents. In light of that, it would be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents. Indeed, under that reading, Article 10(a) would be su­ perfluous. The function of Article 10 is to ensure that, absent objection from the receiving state, the Convention “shall not interfere” with the activities described in 10(a), 10(b) and 10(c). But Article 1 already “eliminates [the] possibility” that the Convention would apply to any com­ munications that “do not culminate in service,” so it is hard to imagine how the Convention could interfere with any non-service communications. Accordingly, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service. Menon attempts to avoid this superfluity problem by suggesting that Article 10(a) does refer to serving docu­ ments—but only some documents. Specifically, she makes a distinction between two categories of service. According to Menon, Article 10(a) does not apply to service of process (which we have defined as “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action,” )). But Article 10(a) does apply, Menon suggests, to the service of “post-answer judicial documents” (that is, any additional documents which may have to be served later in the litigation). Brief for Respondent –31. The problem with this argument is 6 WATER SPLASH, INC. v. MENON Opinion of the Court that it lacks any plausible textual footing in Article 10.2 If the drafters wished to limit Article 10(a) to a particu­ lar subset of documents, they presumably would have said so—as they did, for example, in Article 15, which refers to “a writ of summons or an equivalent document.” Instead, Article 10(a) uses the term “judicial documents”—the same term that is featured in 10(b) and 10(c). Accord- ingly, the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom. And it certainly derives no support from the use of the word “send,” whose ordinary meaning is broad enough to cover the transmission of any judicial documents (including litigation-initiating documents). Nothing about the word “send” suggests that Article 10(a) is narrower than 10(b) and 10(c), let alone that Article 10(a) is somehow limited to “post-answer” documents. Ultimately, Menon wishes to read the phrase “send judicial documents” as “serve a subset of judicial docu­ ments.” That is an entirely atextual reading, and Menon offers no sustained argument in support of it. Therefore, the only way to escape the conclusion that Article 10(a) includes service of process is to assert that it does not cover service of documents at all—and, as shown above, that reading is structurally implausible and renders Arti­ cle 10(a) superfluous. —————— 2 The argument also assumes that the scope of the Convention is not limited to service of process (otherwise, Article 10(a) would be superflu­ ous even under Menon’s reading). can be read to suggest that this assumption is 486 U.S., –701; see 1 B. Ristau, International Judicial Assistance p. 112 (1990 rev. ed.) (Ristau) (stating that the English term “service” in the Convention “means the formal delivery of a legal document to the addressee in such a manner as to legally charge him with notice of the institution of a legal proceeding”). For the purposes of this discussion, we will assume, arguendo, that Menon’s assumption is correct. Cite as: 581 U. S. (2017) 7 Opinion of the Court B The text and structure of the Hague Service Convention, then, strongly suggest that Article 10(a) pertains to ser­ vice of documents. The only significant counterargument is that, unlike many other provisions in the Convention, Article 10(a) does not include the word “service” or any of its variants. The Article 10(a) phrase “send judicial docu­ ments,” the argument goes, should mean something differ­ ent than the phrase “effect service of judicial documents” in the other two subparts of Article 10. This argument does not win the day for several reasons. First, it must contend with the compelling structural considerations discussed above. See Air (treaty interpretation must take account of the “context in which the written words are used”); cf. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. (2013) (slip op., at 13) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices”). Second, the argument fails on its own terms. Assume for a second that the word “send” must mean something other than “serve.” That would not imply that Article 10(a) must exclude service. Instead, “send[ing]” could be a broader concept that includes service but is not limited to it. That reading of the word “send” is probably more plau­ sible than interpreting it to exclude service, and it does not create the same superfluity problem.3 Third, it must be remembered that the French version of —————— 3 Another plausible explanation for the distinct terminology of Article 10(a) is that it is the only provision in the Convention that specifically contemplates direct service, without the use of an intermediary. See Brief for United States as Amicus Curiae 13 (“[I]n contrast to Article 10(a), all other methods of service identified in the Convention require the affirmative engagement of an intermediary to effect ‘service’ ”). The use of the word “send” may simply have been intended to reflect that distinction. 8 WATER SPLASH, INC. v. MENON Opinion of the Court the Convention is “equally authentic” to the English ver­ sion. Menon does not seri- ously engage with the Convention’s French text. But the word “adresser”—the French counterpart to the word “send” in Article 10(a)—“has been consistently interpreted as meaning service or notice.” Hague Conference on Pri­ vate Int’l Law, Practical Handbook on the Operation of the Service Convention ¶279, p. 91 (4th ed. 2016). In short, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(a)’s meaning. And when a treaty provision is ambigu­ ous, the Court “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” at 700 (internal quotation marks omitted). As discussed below, these traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash’s favor. III Three extratextual sources are especially helpful in ascertaining Article 10(a)’s meaning: the Convention’s drafting history, the views of the Executive, and the views of other signatories. Drafting history has often been used in treaty interpre­ tation. See ; ; see also (ana­ lyzing the negotiating history of the Hague Service Con­ vention). Here, the Convention’s drafting history strongly suggests that Article 10(a) allows service through postal channels. Philip W. Amram was the member of the United States delegation who was most closely involved in the drafting of the Convention. See S. Exec. Rep. No. 6, 90th Cong., 1st Sess. 5 (App.) (1967) (S. Exec. Rep.) (statement of State Department Deputy Legal Adviser Richard D. Kearney). Cite as: 581 U. S. (2017) 9 Opinion of the Court A few months before the Convention was signed, he pub­ lished an article describing and summarizing it. In that article, he stated that “Article 10 permits direct service by mail unless [the receiving] state objects to such ser­ vice.” The Proposed International Convention on the Service of Documents Abroad, 51 A. B. A. J. 650, 653 (1965).4 Along similar lines, the Rapporteur’s report on a draft version of Article 10—which did not materially differ from the final version—stated that the “provision of paragraph 1 also permits service by telegram” and that the draft­ ers “did not accept the proposal that postal channels be limited to registered mail.” 1 Ristau at 149. In other words, it was clearly understood that service by postal channels was permissible, and the only question was whether it should be limited to registered mail. The Court also gives “great weight” to “the Executive Branch’s interpretation of a treaty.” Abbott v. Abbott, 560 U.S. 1, 15 (2010) (internal quotation marks omitted). In the half century since the Convention was adopted, the Executive has consistently maintained that the Hague Service Convention allows service by mail. When President Johnson transmitted the Convention to the Senate for its advice and consent, he included a report by Secretary of State Dean Rusk. That report stated that “Article 10 permits direct service by mail unless [the receiving] state objects to such service.” Convention on the Service Abroad of Judicial and Extrajudicial Docu­ ments in Civil or Commercial Matters: Message From the President of the United States, S. Exec. Doc. C, 90th Cong., 1st Sess., 5 (1967). —————— 4 Two years later, Amram testified to the same effect before the Sen­ ate Foreign Relations Committee. S. Exec. Rep., at 13 (stating that service by central authority “is not obligatory,” and that other available techniques included “direct service by mail”). 10 WATER SPLASH, INC. v. MENON Opinion of the Court In the Eighth Circuit issued Bankston, the first Federal Court of Appeals decision holding that the Hague Service Convention prohibits service by mail. 889 F.2d, at 174. The State Department expressed its disagreement with Bankston in a letter addressed to the Administrative Office of the U. S. Courts and the National Center for State Courts. See Notice of Other Documents (1), United States Department of State Opinion Regarding the Bank­ ston Case and Service by Mail to Japan Under the Hague Service Convention, I. L. M. 260, 260–261 (1991) (ex­ cerpts of Mar. 14, 1990, letter). The letter stated that “Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country.” The State Department takes the same position on its website.5 Finally, this Court has given “considerable weight” to the views of other parties to a treaty. Abbott, 560 U.S., at 16 (internal quotation marks omitted); see Lozano v. Montoya Alvarez, 572 U. S. (2014) (slip op., at 9) (noting the importance of “read[ing] the treaty in a man­ ner consistent with the shared expectations of the con­ tracting parties” (internal quotation marks omitted)). And other signatories to the Convention have consistently adopted Water Splash’s view. Multiple foreign courts have held that the Hague Ser­ —————— 5 Dept. of State, Legal Considerations: International Judicial Assis­ tance: Service of Process (stating that “[s]ervice by registered mail is an option in many countries in the world,” but that it “should not be used in the countries party to the Hague Service Conven- tion that objected to the method described in Article 10(a) (postal channels)”), online at https://travel.state.gov/content/travel/en/legal­ considerations/judicial/service-of-process.html (all Internet materials as last visited May 19, 2017). Cite as: 581 U. S. (2017) 11 Opinion of the Court vice Convention allows for service by mail.6 In addition, several of the Convention’s signatories have either objected, or declined to object, to service by mail under Article 10, thereby acknowledging that Article 10 encompasses service by mail.7 Finally, several Special Commissions— comprising numerous contracting States—have expressly stated that the Convention does not prohibit service by mail.8 By contrast, Menon identifies no evidence that any —————— 6 See, e.g., Wang v. Lin, [2016] 132 O. R. 3d 48, 61 (Can. Ont. Sup. Ct. J.); Crystal Decisions (U. K.), (High Court, Eng.); ; Case C– 412/97, ED Srl v. Italo Fenocchio, 1999 E. C. R. I–3845, 3877–3878, ¶6 [] 3 Cow. M. L. R. 855; see also (CA9 2004) (noting that foreign courts are “essentially unanimous” in the view “that the meaning of ‘send’ in Article 10(a) includes ‘serve’ ”). 7 Canada, for example, has stated that it “does not object to service by postal channels.” By contrast, the Czech Republic has adopted Czecho­ slovakia’s position that “judicial documents may not be served through postal channels.” Dutch Govt. Treaty Database: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Parties With Reservations, Declarations and Objections, (entries for Canada and the Czech Republic) on- line at https://treatydatabase.overheid.nl/en/Verdrag/Details/004235_b; see also, e.g., In addition, some states have objected to all of the channels of transmis­ sion listed in Article 10, referring to them collectively with the term “service.” See, e.g., (entries for Bulgaria, Hungary, Kuwait, and Turkey). 8 Hague Conference on Private International Law, Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions ¶55, p. 11 (Oct. 28–Nov. 4, 2003) (“reaffirm[ing]” the Special Commis­ sion’s “clear understanding that the term ‘send’ in Article 10(a) is to be understood as meaning ‘service’ through postal channels”), online at https://assets.hcch.net/upload/wop/lse_concl_e.pdf; Hague Conference on Private International Law, Report on the Work of the Special Commission of April on the Operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudi­ cial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ¶16, 12 WATER SPLASH, INC. v. MENON Opinion of the Court signatory has ever rejected Water Splash’s view. * * * In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not ob­ jected to service by mail; and second, service by mail is authorized under otherwise-applicable law. See Brock­ –804. Because the Court of Appeals concluded that the Con­ vention prohibited service by mail outright, it had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash. We leave that question, and any other remaining issues, to be considered on remand to the extent they are properly preserved. For these reasons, we vacate the judgment of the Court of Appeals, and we remand the case for further proceed­ ings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. —————— p. 5 (criticizing “certain courts in the United States” which “had concluded that service of process abroad by mail was not permit­ ted under the Convention”), online at https://assets.hcch.net/upload/ scrpt89e_20.pdf; Report on the Work of the Special Commission on the Operation of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 21– 25 1977, 17 I. L. M. 312, 326 (1978) (observing that “most of the States made no objection to the service of judicial documents coming from abroad directly by mail in their territory” (emphasis added))

Justice Thomas

majority

Olympic Airways v. Husain

https://www.courtlistener.com/opinion/131164/olympic-airways-v-husain/

https://www.courtlistener.com/api/rest/v3/clusters/131164/

2003-033

Article 17 of the Warsaw Convention (Convention)[1] imposes liability on an air carrier for a passenger's death or bodily injury caused by an "accident" that occurred in connection with an international flight. In Air France v. Saks, 470 U.S. 392 (1985), the Court explained that the term "accident" in the Convention refers to an "unexpected or unusual event or happening that is external to the passenger," and not to "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." Id., at 405, 406. The issue we must decide is whether the "accident" condition precedent to air carrier liability under Article 17 is satisfied when the carrier's unusual and unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger's pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin. We conclude that it is. I The following facts are taken from the District Court's findings, which, being unchallenged by either party, we accept as true. In December 1997, Dr. Abid Hanson and his wife, Rubina Husain (hereinafter respondent), traveled with their children and another family from San Francisco to Athens and Cairo for a family vacation. During a stopover in New York, Dr. Hanson learned for the first time that petitioner allowed its passengers to smoke on international *647 flights. Because Dr. Hanson had suffered from asthma and was sensitive to secondhand smoke, respondent requested and obtained seats away from the smoking section. Dr. Hanson experienced no problems on the flights to Cairo. For the return flights, Dr. Hanson and respondent arrived early at the Cairo airport in order to request nonsmoking seats. Respondent showed the check-in agent a physician's letter explaining that Dr. Hanson "has [a] history of recurrent anaphylactic reactions," App. 81, and asked the agent to ensure that their seats were in the nonsmoking section. The flight to Athens was uneventful. After boarding the plane for the flight to San Francisco, Dr. Hanson and respondent discovered that their seats were located only three rows in front of the economy-class smoking section. Respondent advised Maria Leptourgou, a flight attendant for petitioner, that Dr. Hanson could not sit in a smoking area, and said, "`You have to move him.'" 116 F. Supp. 2d 1121, 1125 (ND Cal. 2000). The flight attendant told her to "`have a seat.'" Ibid. After all the passengers had boarded but prior to takeoff, respondent again asked Ms. Leptourgou to move Dr. Hanson, explaining that he was "`allergic to smoke.'" Ibid. Ms. Leptourgou replied that she could not reseat Dr. Hanson because the plane was "`totally full'" and she was "too busy" to help. Ibid. Shortly after takeoff, passengers in the smoking section began to smoke, and Dr. Hanson was soon surrounded by ambient cigarette smoke. Respondent spoke with Ms. Leptourgou a third time, stating, "`You have to move my husband from here.'" Id., at 1126. Ms. Leptourgou again refused, stating that the plane was full. Ms. Leptourgou told respondent that Dr. Hanson could switch seats with another passenger, but that respondent would have to ask other passengers herself, without the flight crew's assistance. Respondent told Ms. Leptourgou that Dr. Hanson had to move even if the only available seat was in the cockpit or in *648 business class, but Ms. Leptourgou refused to provide any assistance.[2] About two hours into the flight, the smoking noticeably increased in the rows behind Dr. Hanson. Dr. Hanson asked respondent for a new inhaler because the one he had been using was empty. Dr. Hanson then moved toward the front of the plane to get some fresher air. While he was leaning against a chair near the galley area, Dr. Hanson gestured to respondent to get his emergency kit. Respondent returned with it and gave him a shot of epinephrine. She then awoke Dr. Umesh Sabharwal, an allergist, with whom Dr. Hanson and respondent had been traveling. Dr. Sabharwal gave Dr. Hanson another shot of epinephrine and began to administer CPR and oxygen. Dr. Hanson died shortly thereafter.[3]Id., at 1128. Respondents filed a wrongful-death suit in California state court. Petitioner removed the case to federal court, and the District Court found petitioner liable for Dr. Hanson's death. The District Court held that Ms. Leptourgou's refusal to reseat Dr. Hanson constituted an "accident" within the meaning of Article 17. Applying Saks' definition of that term, the court reasoned that the flight attendant's conduct was external to Dr. Hanson and, because it was in "blatant disregard of industry standards and airline policies," was not expected or usual. 116 F. Supp. 2d, at 1134. The Ninth Circuit affirmed. Applying Saks' definition of "accident," the Ninth Circuit agreed that the flight attendant's refusal to reseat Dr. Hanson "was clearly external to *649 Dr. Hanson, and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr. Hanson's requested accommodation." 316 F.3d 829, 837 (2002). We granted certiorari, 538 U.S. 1056 (2003), and now affirm. II A We begin with the language of Article 17 of the Convention, which provides:[4] "The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." 49 Stat. 3018.[5] In Saks, the Court recognized that the text of the Convention does not define the term "accident" and that the context in which it is used is not "illuminating." 470 U.S., at 399. *650 The Court nevertheless discerned the meaning of the term "accident" from the Convention's text, structure, and history as well as from the subsequent conduct of the parties to the Convention. Neither party here contests Saks' definition of the term "accident" under Article 17 of the Convention. Rather, the parties differ as to which event should be the focus of the "accident" inquiry. The Court's reasoning in Saks sheds light on whether the flight attendant's refusal to assist a passenger in a medical crisis is the proper focus of the "accident" inquiry. In Saks, the Court addressed whether a passenger's "`loss of hearing proximately caused by normal operation of the aircraft's pressurization system'" was an "`accident.'" Id., at 395. The Court concluded that it was not, because the injury was her "own internal reaction" to the normal pressurization of the aircraft's cabin. Id., at 406. The Court noted two textual clues to the meaning of the term "accident." First, the Convention distinguishes between liability under Article 17 for death or injuries to passengers caused by an "accident" and liability under Article 18 for destruction or loss of baggage caused by an "occurrence." Id., at 398. The difference in these provisions implies that the meaning of the term "accident" is different from that of "occurrence." Ibid. Second, the Court found significant the fact that Article 17 focuses on the "accident which caused" the passenger's injury and not an accident that is the passenger's injury. Ibid. The Court explained that it is the cause of the injury — rather than the occurrence of the injury — that must satisfy the definition of "accident." Id., at 399. And recognizing the Court's responsibility to read the treaty in a manner "consistent with the shared expectations of the contracting parties," ibid., the Court also looked to the French legal meaning of the term "accident," which when used to describe the cause of an injury, is usually defined as a "fortuitous, unexpected, unusual, or unintended event." Id., at 400. *651 Accordingly, the Court held in Saks that an "accident" under Article 17 is "an unexpected or unusual event or happening that is external to the passenger," and not "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." Id., at 405, 406.[6] The Court emphasized that the definition of "accident" "should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Id., at 405. The Court further contemplated that intentional conduct could fall within the "accident" definition under Article 17,[7] an interpretation that comports with another provision of the Convention.[8] As such, Saks correctly characterized the *652 term "accident" as encompassing more than unintentional conduct. The Court focused its analysis on determining "what causes can be considered accidents," and observed that Article 17 "embraces causes of injuries" that are "unexpected or unusual." Id., at 404, 405. The Court did not suggest that only one event could constitute the "accident," recognizing that "[a]ny injury is the product of a chain of causes." Id., at 406. Thus, for purposes of the "accident" inquiry, the Court stated that a plaintiff need only be able to prove that "some link in the chain was an unusual or unexpected event external to the passenger." Ibid. B Petitioner argues that the "accident" inquiry should focus on the "injury producing event," Reply Brief for Petitioner 4, which, according to petitioner, was the presence of ambient cigarette smoke in the aircraft's cabin. Because petitioner's policies permitted smoking on international flights, petitioner contends that Dr. Hanson's death resulted from his own internal reaction — namely, an asthma attack — to the normal operation of the aircraft. Petitioner also argues that the flight attendant's failure to move Dr. Hanson was inaction, whereas Article 17 requires an action that causes the injury. We disagree. As an initial matter, we note that petitioner did not challenge in the Court of Appeals the District Court's finding that the flight attendant's conduct in three times refusing to move Dr. Hanson was unusual or unexpected in light of the relevant industry standard or petitioner's own company policy. 116 F. Supp. 2d, at 1133. Petitioner instead argued that the flight attendant's conduct was irrelevant for purposes of the "accident" inquiry and that the only relevant event was the presence of the ambient cigarette *653 smoke in the aircraft's cabin. Consequently, we need not dispositively determine whether the flight attendant's conduct qualified as "unusual or unexpected" under Saks, but may assume that it was for purposes of this opinion. Petitioner's focus on the ambient cigarette smoke as the injury producing event is misplaced. We do not doubt that the presence of ambient cigarette smoke in the aircraft's cabin during an international flight might have been "normal" at the time of the flight in question. But petitioner's "injury producing event" inquiry — which looks to "the precise factual `event' that caused the injury" — neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury. Brief for Petitioner 14. In Saks, the Court recognized that any one of these factual events or happenings may be a link in the chain of causes and — so long as it is unusual or unexpected — could constitute an "accident" under Article 17. 470 U.S., at 406. Indeed, the very fact that multiple events will necessarily combine and interrelate to cause any particular injury makes it difficult to define, in any coherent or non-question-begging way, any single event as the "injury producing event." Petitioner's only claim to the contrary here is to say: "Looking to the purely factual description of relevant events, the aggravating event was Dr. Hanson remaining in his assigned non-smoking seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death," Brief for Petitioner 24, and that the "injury producing event" was "not the flight attendant's failure to act or violation of industry standards," Reply Brief for Petitioner 9-10. Petitioner ignores the fact that the flight attendant's refusal on three separate occasions to move Dr. Hanson was also a "factual `event,'" Brief for Petitioner 14, that the District Court correctly found to be a "`link in the chain'" of causes that led to Dr. Hanson's death, 116 F. Supp. 2d, at 1135. Petitioner's statement that the flight attendant's failure to reseat Dr. Hanson was not the *654 "injury producing event" is nothing more than a bald assertion, unsupported by any law or argument. An example illustrates why petitioner's emphasis on the ambient cigarette smoke as the "injury producing event" is misplaced. Suppose that petitioner mistakenly assigns respondent and her husband to seats in the middle of the smoking section, and that respondent and her husband do not notice that they are in the smoking section until after the flight has departed. Suppose further that, as here, the flight attendant refused to assist respondent and her husband despite repeated requests to move. In this hypothetical case, it would appear that, "[l]ooking to the purely factual description of relevant events, the aggravating event was [the passenger] remaining in his assigned . . . seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death." Brief for Petitioner 24. To argue otherwise, petitioner would have to suggest that the misassignment to the smoking section was the "injury producing event," but this would simply beg the question. The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the death of the passenger. In the instant case, the same can be said: The exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger's death. And petitioner's argument that the flight attendant's failure to act cannot constitute an "accident" because only affirmative acts are "event[s] or happening[s]" under Saks is unavailing. 470 U.S., at 405. The distinction between action and inaction, as petitioner uses these terms, would perhaps be relevant were this a tort law negligence case. But respondents do not advocate, and petitioner vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant "accident" inquiry under *655 Saks is whether there is "an unexpected or unusual event or happening." Ibid. (emphasis added). The rejection of an explicit request for assistance would be an "event" or "happening" under the ordinary and usual definitions of these terms. See American Heritage Dictionary 635 (3d ed. 1992) ("event": "[s]omething that takes place; an occurrence"); Black's Law Dictionary 554-555 (6th ed. 1990) ("event": "Something that happens"); Webster's New International Dictionary 885 (2d ed. 1949) ("event": "The fact of taking place or occurring; occurrence" or "[t]hat which comes, arrives, or happens").[9] *656 Moreover, the fallacy of petitioner's position that an "accident" cannot take the form of inaction is illustrated by the following example. Suppose that a passenger on a flight inexplicably collapses and stops breathing and that a medical doctor informs the flight crew that the passenger's life could be saved only if the plane lands within one hour. Suppose further that it is industry standard and airline policy to divert a flight to the nearest airport when a passenger otherwise faces imminent death. If the plane is within 30 minutes of a suitable airport, but the crew chooses to continue its cross-country flight, "[t]he notion that this is not an unusual event is staggering." McCaskey v. Continental Airlines, Inc., 159 F. Supp. 2d 562, 574 (SD Tex. 2001).[10] Confirming this interpretation, other provisions of the Convention suggest that there is often no distinction between action and inaction on the issue of ultimate liability. For example, Article 25 provides that Article 22's liability cap does not apply in the event of "wilful misconduct or . . . such default on [the carrier's] part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct." 49 Stat. 3020 (emphasis added).[11] Because liability can be imposed for death *657 or bodily injury only in the case of an Article 17 "accident" and Article 25 only lifts the caps once liability has been found, these provisions read together tend to show that inaction can give rise to liability. Moreover, Article 20(1) makes clear that the "due care" defense is unavailable when a carrier has failed to take "all necessary measures to avoid the damage." Id., at 3019. These provisions suggest that an air carrier's inaction can be the basis for liability. Finally, petitioner contends that the Ninth Circuit improperly created a negligence-based "accident" standard under Article 17 by focusing on the flight crew's negligence as the "accident." The Ninth Circuit stated: "The failure to act in the face of a known, serious risk satisfies the meaning of `accident' within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane." 316 F.3d, at 837. Admittedly, this language does seem to approve of a negligence-based approach. However, no party disputes the Ninth Circuit's holding that the flight attendant's conduct was "unexpected and unusual," ibid., which is the operative language under Saks and the correct Article 17 analysis. For the foregoing reasons, we conclude that the conduct here constitutes an "accident" under Article 17 of the Warsaw Convention. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case.

Article 17 of the Warsaw Convention (Convention)[1] imposes liability on an air carrier for a passenger's or bodily injury caused by an "accident" that occurred in connection with an international flight. In Air the Court explained that the term "accident" in the Convention refers to an "unexpected or unusual event or happening that is external to the passenger," and not to "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." The issue we must decide is whether the "accident" condition precedent to air carrier liability under Article 17 is satisfied when the carrier's unusual and unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger's pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin. We conclude that it is. I The following facts are taken from the District Court's findings, which, being unchallenged by either party, we accept as true. In December 1997, Dr. Abid Hanson and his wife, Rubina Husain (hereinafter respondent), traveled with their children and another family from San Francisco to Athens and Cairo for a family vacation. During a stopover in New York, Dr. Hanson learned for the first time that petitioner allowed its passengers to smoke on international *647 flights. Because Dr. Hanson had suffered from asthma and was sensitive to secondhand smoke, respondent requested and obtained seats away from the smoking section. Dr. Hanson experienced no problems on the flights to Cairo. For the return flights, Dr. Hanson and respondent arrived early at the Cairo airport in order to request nonsmoking seats. Respondent showed the check-in agent a physician's letter explaining that Dr. Hanson "has [a] history of recurrent anaphylactic reactions," App. 81, and asked the agent to ensure that their seats were in the nonsmoking section. The flight to Athens was uneventful. After boarding the plane for the flight to San Francisco, Dr. Hanson and respondent discovered that their seats were located only three rows in front of the economy-class smoking section. Respondent advised Maria Leptourgou, a flight attendant for petitioner, that Dr. Hanson could not sit in a smoking area, and said, "`You have to move him.'" The flight attendant told her to "`have a seat.'" After all the passengers had boarded but prior to takeoff, respondent again asked Ms. Leptourgou to move Dr. Hanson, explaining that he was "`allergic to smoke.'" Ms. Leptourgou replied that she could not reseat Dr. Hanson because the plane was "`totally full'" and she was "too busy" to help. Shortly after takeoff, passengers in the smoking section began to smoke, and Dr. Hanson was soon surrounded by ambient cigarette smoke. Respondent spoke with Ms. Leptourgou a third time, stating, "`You have to move my husband from here.'" Ms. Leptourgou again refused, stating that the plane was full. Ms. Leptourgou told respondent that Dr. Hanson could switch seats with another passenger, but that respondent would have to ask other passengers herself, without the flight crew's assistance. Respondent told Ms. Leptourgou that Dr. Hanson had to move even if the only available seat was in the cockpit or in *648 business class, but Ms. Leptourgou refused to provide any assistance.[2] About two hours into the flight, the smoking noticeably increased in the rows behind Dr. Hanson. Dr. Hanson asked respondent for a new inhaler because the one he had been using was empty. Dr. Hanson then moved toward the front of the plane to get some fresher air. While he was leaning against a chair near the galley area, Dr. Hanson gestured to respondent to get his emergency kit. Respondent returned with it and gave him a shot of epinephrine. She then awoke Dr. Umesh Sabharwal, an allergist, with whom Dr. Hanson and respondent had been traveling. Dr. Sabharwal gave Dr. Hanson another shot of epinephrine and began to administer CPR and oxygen. Dr. Hanson died shortly thereafter.[3] at 1128. Respondents filed a wrongful- suit in California state court. Petitioner removed the case to federal court, and the District Court found petitioner liable for Dr. Hanson's The District Court held that Ms. Leptourgou's refusal to reseat Dr. Hanson constituted an "accident" within the meaning of Article 17. Applying Saks' definition of that term, the court reasoned that the flight attendant's conduct was external to Dr. Hanson and, because it was in "blatant disregard of industry standards and airline policies," was not expected or usual. The Ninth Circuit affirmed. Applying Saks' definition of "accident," the Ninth Circuit agreed that the flight attendant's refusal to reseat Dr. Hanson "was clearly external to *649 Dr. Hanson, and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr. Hanson's requested accommodation." We granted certiorari, and now affirm. II A We begin with the language of Article 17 of the Convention, which provides:[4] "The carrier shall be liable for damage sustained in the event of the or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."[5] In Saks, the Court recognized that the text of the Convention does not define the term "accident" and that the context in which it is used is not "illuminating." *650 The Court nevertheless discerned the meaning of the term "accident" from the Convention's text, structure, and history as well as from the subsequent conduct of the parties to the Convention. Neither party here contests Saks' definition of the term "accident" under Article 17 of the Convention. Rather, the parties differ as to which event should be the focus of the "accident" inquiry. The Court's reasoning in Saks sheds light on whether the flight attendant's refusal to assist a passenger in a medical crisis is the proper focus of the "accident" inquiry. In Saks, the Court addressed whether a passenger's "`loss of hearing proximately caused by normal operation of the aircraft's pressurization system'" was an "`accident.'" The Court concluded that it was not, because the injury was her "own internal reaction" to the normal pressurization of the aircraft's cabin. The Court noted two textual clues to the meaning of the term "accident." First, the Convention distinguishes between liability under Article 17 for or injuries to passengers caused by an "accident" and liability under Article 18 for destruction or loss of baggage caused by an "occurrence." The difference in these provisions implies that the meaning of the term "accident" is different from that of "occurrence." Second, the Court found significant the fact that Article 17 focuses on the "accident which caused" the passenger's injury and not an accident that is the passenger's injury. The Court explained that it is the cause of the injury — rather than the occurrence of the injury — that must satisfy the definition of "accident." And recognizing the Court's responsibility to read the treaty in a manner "consistent with the shared expectations of the contracting parties," ibid., the Court also looked to the French legal meaning of the term "accident," which when used to describe the cause of an injury, is usually defined as a "fortuitous, unexpected, unusual, or unintended event." *651 Accordingly, the Court held in Saks that an "accident" under Article 17 is "an unexpected or unusual event or happening that is external to the passenger," and not "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft."[6] The Court emphasized that the definition of "accident" "should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." The Court further contemplated that intentional conduct could fall within the "accident" definition under Article 17,[7] an interpretation that comports with another provision of the Convention.[8] As such, Saks correctly characterized the *652 term "accident" as encompassing more than unintentional conduct. The Court focused its analysis on determining "what causes can be considered accidents," and observed that Article 17 "embraces causes of injuries" that are "unexpected or unusual." The Court did not suggest that only one event could constitute the "accident," recognizing that "[a]ny injury is the product of a chain of causes." Thus, for purposes of the "accident" inquiry, the Court stated that a plaintiff need only be able to prove that "some link in the chain was an unusual or unexpected event external to the passenger." B Petitioner argues that the "accident" inquiry should focus on the "injury producing event," Reply Brief for Petitioner 4, which, according to petitioner, was the presence of ambient cigarette smoke in the aircraft's cabin. Because petitioner's policies permitted smoking on international flights, petitioner contends that Dr. Hanson's resulted from his own internal reaction — namely, an asthma attack — to the normal operation of the aircraft. Petitioner also argues that the flight attendant's failure to move Dr. Hanson was inaction, whereas Article 17 requires an action that causes the injury. We disagree. As an initial matter, we note that petitioner did not challenge in the Court of Appeals the District Court's finding that the flight attendant's conduct in three times refusing to move Dr. Hanson was unusual or unexpected in light of the relevant industry standard or petitioner's own company policy. Petitioner instead argued that the flight attendant's conduct was irrelevant for purposes of the "accident" inquiry and that the only relevant event was the presence of the ambient cigarette *653 smoke in the aircraft's cabin. Consequently, we need not dispositively determine whether the flight attendant's conduct qualified as "unusual or unexpected" under Saks, but may assume that it was for purposes of this opinion. Petitioner's focus on the ambient cigarette smoke as the injury producing event is misplaced. We do not doubt that the presence of ambient cigarette smoke in the aircraft's cabin during an international flight might have been "normal" at the time of the flight in question. But petitioner's "injury producing event" inquiry — which looks to "the precise factual `event' that caused the injury" — neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury. Brief for Petitioner 14. In Saks, the Court recognized that any one of these factual events or happenings may be a link in the chain of causes and — so long as it is unusual or unexpected — could constitute an "accident" under Article 17. 470 U.S., Indeed, the very fact that multiple events will necessarily combine and interrelate to cause any particular injury makes it difficult to define, in any coherent or non-question-begging way, any single event as the "injury producing event." Petitioner's only claim to the contrary here is to say: "Looking to the purely factual description of relevant events, the aggravating event was Dr. Hanson remaining in his assigned non-smoking seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his" Brief for Petitioner 24, and that the "injury producing event" was "not the flight attendant's failure to act or violation of industry standards," Reply Brief for Petitioner 9-10. Petitioner ignores the fact that the flight attendant's refusal on three separate occasions to move Dr. Hanson was also a "factual `event,'" Brief for Petitioner 14, that the District Court correctly found to be a "`link in the chain'" of causes that led to Dr. Hanson's Petitioner's statement that the flight attendant's failure to reseat Dr. Hanson was not the *654 "injury producing event" is nothing more than a bald assertion, unsupported by any law or argument. An example illustrates why petitioner's emphasis on the ambient cigarette smoke as the "injury producing event" is misplaced. Suppose that petitioner mistakenly assigns respondent and her husband to seats in the middle of the smoking section, and that respondent and her husband do not notice that they are in the smoking section until after the flight has departed. Suppose further that, as here, the flight attendant refused to assist respondent and her husband despite repeated requests to move. In this hypothetical case, it would appear that, "[l]ooking to the purely factual description of relevant events, the aggravating event was [the passenger] remaining in his assigned seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his" Brief for Petitioner 24. To argue otherwise, petitioner would have to suggest that the misassignment to the smoking section was the "injury producing event," but this would simply beg the question. The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the of the passenger. In the instant case, the same can be said: The exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger's And petitioner's argument that the flight attendant's failure to act cannot constitute an "accident" because only affirmative acts are "event[s] or happening[s]" under Saks is 470 U.S., The distinction between action and inaction, as petitioner uses these terms, would perhaps be relevant were this a tort law negligence case. But respondents do not advocate, and petitioner vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant "accident" inquiry under *655 Saks is whether there is "an unexpected or unusual event or happening." The rejection of an explicit request for assistance would be an "event" or "happening" under the ordinary and usual definitions of these terms. See American Heritage Dictionary 635 (3d ed. 1992) ("event": "[s]omething that takes place; an occurrence"); Black's Law Dictionary 554-555 (6th ed. 1990) ("event": "Something that happens"); Webster's New International Dictionary 885 (2d ed. 1949) ("event": "The fact of taking place or occurring; occurrence" or "[t]hat which comes, arrives, or happens").[9] *656 Moreover, the fallacy of petitioner's position that an "accident" cannot take the form of inaction is illustrated by the following example. Suppose that a passenger on a flight inexplicably collapses and stops breathing and that a medical doctor informs the flight crew that the passenger's life could be saved only if the plane lands within one hour. Suppose further that it is industry standard and airline policy to divert a flight to the nearest airport when a passenger otherwise faces imminent If the plane is within 30 minutes of a suitable airport, but the crew chooses to continue its cross-country flight, "[t]he notion that this is not an unusual event is staggering."[10] Confirming this interpretation, other provisions of the Convention suggest that there is often no distinction between action and inaction on the issue of ultimate liability. For example, Article 25 provides that Article 22's liability cap does not apply in the event of "wilful misconduct or such default on [the carrier's] part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct."[11] Because liability can be imposed for *657 or bodily injury only in the case of an Article 17 "accident" and Article 25 only lifts the caps once liability has been found, these provisions read together tend to show that inaction can give rise to liability. Moreover, Article 20(1) makes clear that the "due care" defense is unavailable when a carrier has failed to take "all necessary measures to avoid the damage." These provisions suggest that an air carrier's inaction can be the basis for liability. Finally, petitioner contends that the Ninth Circuit improperly created a negligence-based "accident" standard under Article 17 by focusing on the flight crew's negligence as the "accident." The Ninth Circuit stated: "The failure to act in the face of a known, serious risk satisfies the meaning of `accident' within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane." 316 F.3d, at Admittedly, this language does seem to approve of a negligence-based approach. However, no party disputes the Ninth Circuit's holding that the flight attendant's conduct was "unexpected and unusual," ibid., which is the operative language under Saks and the correct Article 17 analysis. For the foregoing reasons, we conclude that the conduct here constitutes an "accident" under Article 17 of the Warsaw Convention. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case.

Justice O'Connor

dissenting

324 Liquor Corp. v. Duffy

https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/

https://www.courtlistener.com/api/rest/v3/clusters/111786/

1986-019

Immediately after the ratification of the Twenty-first Amendment, this Court recognized that the broad language of § 2 of the Amendment conferred plenary power on the States to regulate the liquor trade within their boundaries. Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939); Finch & Co. v. McKittrick, 305 U.S. 395 (1939); Indianapolis Brewing Co. v. Liquor Control Comm'n, 305 U.S. 391 (1939); State Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936). As JUSTICE STEVENS recently observed, however, the Court has, over the years, so "completely distorted the Twenty-first *353 Amendment" that "[i]t now has a barely discernible effect in Commerce Clause cases." Newport v. Iacobucci, ante, at 98 (dissenting). Because I believe that the Twenty-first Amendment clearly authorized the State of New York to regulate the liquor trade within its borders free of federal interference, I dissent from Part III of the Court's opinion, and would affirm the judgment of the New York Court of Appeals. I In Hostetter v. Idlewild Liquor Corp., 377 U.S. 324 (1964), this Court took a first step toward eviscerating the authority of States to regulate the commerce of liquor. The Court held that the State of New York could not regulate the importation of liquor into that State when the liquor was sold in duty-free shops at the Kennedy Airport. The basis for this decision was the fact that the United States Customs Service already supervised the liquor sold at the airport. Justice Black, who as a Senator was present at the creation of the Twenty-first Amendment, wrote a thoughtful and powerful dissent. After reviewing the legislative history of the Twenty-first Amendment, Justice Black concluded that the Senators who approved the Twenty-first Amendment thought they were returning absolute control over the liquor industry to the States, and "were seeing to it that the Federal Government could not interfere with or restrict the State's exercise of the power conferred by the Amendment." Id., at 338 (dissenting). Because the Court has seen fit in recent years to dismiss this legislative history without analysis as "obscure," Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274 (1984); ante, at 346-347, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue. Although neither the House of Representives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2, but see 76 Cong. Rec. 2776 (1933) (statement of Rep. Lea of California that the section was "the *354 extreme of State rights" because it obligated the Federal Government to assist the enforcement of state laws "however unwise or improvident"), the Senate considered the section in great detail. Those Senate discussions clearly demonstrate an intent to confer on States complete and exclusive control over the commerce of liquor. When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a § 3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor. It provided that "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." Id., at 4138. As Justice Black observed, the proposal "to leave even this remnant of federal control over liquor traffic gave rise to the only real controversy over the language of the proposed Amendment." 377 U.S., at 337. Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in § 3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had "surrendered control over and regulation of interstate commerce." 76 Cong. Rec. 4141 (1933). He viewed § 2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 "restor[ed] to the States, in effect, the right to regulate commerce respecting a single commodity — namely, intoxicating liquor." Ibid. In his view, the grant of authority to Congress in § 3 undercut the import of § 2: "Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which *355 enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment." Id., at 4143. Senator Wagner was an especially vigorous opponent of the proposed § 3. In his view, it failed to "correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed." Id., at 4144. In Senator Wagner's view, the danger of § 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade: "If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold. . . . ..... "It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture. . . . If that is to be the history of the proposed amendment — and there is every reason to expect it — then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3." Id., at 4147. *356 Other Senators also expressed the fear that "any grant of power to the Federal Government, even a seemingly narrow one, could be used to whittle away the exclusive control over liquor traffic given the States by Section 2." Hostetter, 377 U. S., at 337 (Black, J., dissenting); see 76 Cong. Rec. 4143 (1933) (Sen. Blaine); id., at 4177-4178 (Sen. Black). Still others emphasized the plenary power granted the States by § 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: "The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter." Id., at 4219. In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that "it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported." Id., at 4225. Thus, upon the motion of Senator Robinson, the Senate voted to strike § 3 from the proposed Amendment. Id., at 4179. By emphasizing the importance of the plenary powers granted the States in § 2, and more importantly by removing even the limited grant of authority to Congress contained in § 3, the Senate made manifest its intent to prevent any federal interference with state attempts to regulate the liquor trade. It is difficult to believe that the Senators would have anticipated that a federal statute enacted under the commerce power could ever override the State's power to regulate the liquor trade. II The history of the Amendment strongly supports Justice Black's view that the Twenty-first Amendment was intended to return absolute control of the liquor trade to the States, and that the Federal Government could not use its Commerce Clause powers to interfere in any manner with the States' exercise of the power conferred by the Amendment. *357 Given its desire to confer broad freedom on the States to regulate commerce in intoxicating liquors without federal interference, Congress certainly intended that the States have the power to enact economic regulations governing the pricing of liquor free of federal antitrust policy. The behavior of the States upon the ratification of the Twenty-first Amendment also supports this view. Contemporaneously with the enactment of the Twenty-first Amendment, a report sponsored by John D. Rockefeller, Jr., recommended that those States that could not muster the political support for state monopolies in the liquor industry should adopt the equivalent solution of price-control laws designed to keep the price of liquor at high levels. R. Fosdick & A. Scott, Toward Liquor Control 52 (1933). According to this report, the "profit motive is the core of the problem." Id., at 61. This profit motive encouraged low prices that stimulated liquor consumption. Id., at 149. Retail prices had a "direct bearing on the amount of consumption," id., at 81, and thus a State could use price-fixing powers "as one of its most effective instruments of control." Id., at 82. The ideas expressed by the Rockefeller Report "were the dominant ideas which took flesh in the post-repeal legislation of the states." Dunsford, State Monopoly and Price-Fixing in Retail Liquor Distribution, 1962 Wis. L. Rev. 454, 464. It is not surprising, therefore, that even before the enactment of the Miller-Tydings Fair Trade Act of 1937, 50 Stat. 693, States exercised their Twenty-first Amendment powers to adopt "bold and drastic experiments in price control," including price posting, regulation by private associations, and mandatory resale price maintenance contracts. De Ganahl, Trade Practice and Price Control in the Alcoholic Beverage Industry, 7 Law & Contemp. Prob. 665, 680 (1940). Thus, the States that ratified the Twenty-first Amendment immediately exercised the authority granted them by § 2 of that Amendment to enact the very type of statute that this Court strikes down today. *358 With the clear legislative intent to free state regulation of liquor from federal interference, and the immediate enactment of price-control laws by the ratifying States, the better view of the proper resolution of any apparent conflict between the Sherman Act and a state regulation of the liquor trade was expressed by Justice Frankfurter in United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 300-302 (1945) (concurring). In Justice Frankfurter's view, the Twenty-first Amendment accorded States the power to control the liquor traffic "according to their notions of policy freed from the restrictions upon state power which the Commerce Clause implies as to ordinary articles of commerce." Id., at 300. Because Congress enacted the Sherman Act pursuant to its authority in the Commerce Clause, the Sherman Act must yield to state power drawn from the Twenty-first Amendment. Id., at 301. Thus, Justice Frankfurter concluded: "If a State for its own sufficient reasons deems it a desirable policy to standardize the price of liquor within its borders either by a direct price-fixing statute or by permissive sanction of such price-fixing in order to discourage the temptations of cheap liquor due to cutthroat competition, the Twenty-first Amendment gives it that power and the Commerce Clause does not gainsay it. Such state policy can not offend the Sherman Law even though distillers or middlemen agree with local dealers to respect this policy." Ibid. Justice Frankfurter believed that in the absence of a conflict between the state regulatory scheme and the federal antitrust laws, federal antitrust policy was fully applicable even to the intrastate liquor trade. In Frankfort Distilleries itself, the State had not authorized the anticompetitive conduct of the respondents. Once a State has exercised its § 2 power, however, "the Sherman Law could not override such exercise of state power." Id., at 302. *359 Justice Frankfurter was not alone in this view. In repealing the Miller-Tydings Act — which had authorized States to enact fair trade laws — the Senate believed that the States could continue to impose retail price maintenance on liquor retailers. The Report from the Senate Judiciary Committee on the proposal to repeal the Miller-Tydings Act explicitly assured the Senate that the repeal would not change the power of States to impose retail price maintenance on liquor retailers pursuant to the authority granted the States by the Twenty-first Amendment: "Liquor will not be affected by the repeal of the fair trade laws in the same manner as other products because the Twenty-First Amendment to the Constitution gives the States broad powers over the sale of alcoholic beverages. Thus, while repeal of the fair trade laws generally will prohibit manufacturers from enforcing resale prices, alcohol manufacturers may do such in States which pass price fixing statutes pursuant to the Twenty-First Amendment." S. Rep. No. 94-466, p. 2 (1975). The history and purpose of the Twenty-first Amendment are a compelling indication of an intent to confer on States the power to regulate trade in liquor. Despite this clear intent, the Court in recent years has used a balancing test to resolve conflicts between federal statutes and state laws enacted pursuant to § 2. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), and once again today, the Court ventured still further from the intent of the Twenty-first Amendment by adopting an unprecedented test that focuses on the wisdom of the State's exercise of its § 2 powers. For the Court today does not invalidate the ABC Law because it involves an exercise of power outside the scope of the Twenty-first Amendment — indeed, the Court could not do so given the long history of the use of price controls by state liquor authorities. Instead, in a manner reminiscent of the long-repudiated Lochner v. New York, 198 U.S. 45 (1905), the Court strikes down the ABC Law because *360 it concludes that the law was not "effective" in preserving small retail establishments or in decreasing alcohol consumption. The proper inquiry, however, is not whether the State of New York chose wisely in enacting a retail price maintenance law, nor whether the State of New York's motivation in doing so was linked to a "central purpos[e]" of the Twenty-first Amendment. The sole "question is whether the provision in this case is an exercise of a power expressly conferred upon the States by the Constitution." Bacchus Imports, Ltd. v. Dias, 468 U. S., at 287 (STEVENS, J., dissenting). Because the State of New York was plainly exercising its § 2 power to regulate liquor trade, I respectfully dissent.

Immediately after the ratification of the Twenty-first Amendment, this Court recognized that the broad language of 2 of the Amendment conferred plenary power on the States to regulate the liquor trade within their boundaries. Ziffrin, ; Finch & ; Indianapolis Brewing ; State Board of As JUSTICE STEVENS recently observed, however, the Court has, over the years, so "completely distorted the Twenty-first *353 Amendment" that "[i]t now has a barely discernible effect in Commerce Clause cases." Newport v. Iacobucci, ante, at 98 Because I believe that the Twenty-first Amendment clearly authorized the State of New York to regulate the liquor trade within its borders free of federal interference, I dissent from Part III of the Court's opinion, and would affirm the judgment of the New York Court of Appeals. I In this Court took a first step toward eviscerating the authority of States to regulate the commerce of liquor. The Court held that the State of New York could not regulate the importation of liquor into that State when the liquor was sold in duty-free shops at the Kennedy Airport. The basis for this decision was the fact that the United States Customs Service already supervised the liquor sold at the airport. Justice Black, who as a Senator was present at the creation of the Twenty-first Amendment, wrote a thoughtful and powerful dissent. After reviewing the legislative history of the Twenty-first Amendment, Justice Black concluded that the Senators who approved the Twenty-first Amendment thought they were returning absolute control over the liquor industry to the States, and "were seeing to it that the Federal Government could not interfere with or restrict the State's exercise of the power conferred by the Amendment." Because the Court has seen fit in recent years to dismiss this legislative history without analysis as "obscure," Bacchus Imports, ; ante, at 346-347, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue. Although neither the House of Representives nor the state ratifying conventions deliberated long on the powers conferred on the States by 2, but see 76 Cong. Rec. 2776 (1933) (statement of Rep. Lea of California that the section was "the *354 extreme of State rights" because it obligated the Federal Government to assist the enforcement of state laws "however unwise or improvident"), the Senate considered the section in great detail. Those Senate discussions clearly demonstrate an intent to confer on States complete and exclusive control over the commerce of liquor. When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a 3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor. It provided that "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." As Justice Black observed, the proposal "to leave even this remnant of federal control over liquor traffic gave rise to the only real controversy over the language of the proposed Amendment." Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in 3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had "surrendered control over and regulation of interstate commerce." 76 Cong. Rec. 4141 (1933). He viewed 2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 "restor[ed] to the States, in effect, the right to regulate commerce respecting a single commodity — namely, intoxicating liquor." In his view, the grant of authority to Congress in 3 undercut the import of 2: "Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which *355 enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment." Senator Wagner was an especially vigorous opponent of the proposed 3. In his view, it failed to "correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed." In Senator Wagner's view, the danger of 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade: "If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold. "It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture. If that is to be the history of the proposed amendment — and there is every reason to expect it — then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3." *356 Other Senators also expressed the fear that "any grant of power to the Federal Government, even a seemingly narrow one, could be used to whittle away the exclusive control over liquor traffic given the States by Section 2." ; see 76 Cong. Rec. 4143 (1933) (Sen. Blaine); Still others emphasized the plenary power granted the States by 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: "The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter." In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that "it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported." Thus, upon the motion of Senator Robinson, the Senate voted to strike 3 from the proposed Amendment. By emphasizing the importance of the plenary powers granted the States in 2, and more importantly by removing even the limited grant of authority to Congress contained in 3, the Senate made manifest its intent to prevent any federal interference with state attempts to regulate the liquor trade. It is difficult to believe that the Senators would have anticipated that a federal statute enacted under the commerce power could ever override the State's power to regulate the liquor trade. II The history of the Amendment strongly supports Justice Black's view that the Twenty-first Amendment was intended to return absolute control of the liquor trade to the States, and that the Federal Government could not use its Commerce Clause powers to interfere in any manner with the States' exercise of the power conferred by the Amendment. *357 Given its desire to confer broad freedom on the States to regulate commerce in intoxicating liquors without federal interference, Congress certainly intended that the States have the power to enact economic regulations governing the pricing of liquor free of federal antitrust policy. The behavior of the States upon the ratification of the Twenty-first Amendment also supports this view. Contemporaneously with the enactment of the Twenty-first Amendment, a report sponsored by John D. Rockefeller, Jr., recommended that those States that could not muster the political support for state monopolies in the liquor industry should adopt the equivalent solution of price-control laws designed to keep the price of liquor at high levels. R. Fosdick & A. Scott, Toward Liquor Control 52 (1933). According to this report, the "profit motive is the core of the problem." This profit motive encouraged low prices that stimulated liquor consumption. Retail prices had a "direct bearing on the amount of consumption," and thus a State could use price-fixing powers "as one of its most effective instruments of control." The ideas expressed by the Rockefeller Report "were the dominant ideas which took flesh in the post-repeal legislation of the states." Dunsford, State Monopoly and Price-Fixing in Retail Liquor Distribution, It is not surprising, therefore, that even before the enactment of the Miller-Tydings Fair Trade Act of 1937, States exercised their Twenty-first Amendment powers to adopt "bold and drastic experiments in price control," including price posting, regulation by private associations, and mandatory resale price maintenance contracts. De Ganahl, Trade Practice and Price Control in the Alcoholic Beverage Industry, 7 Law & Contemp. Prob. 665, 680 (1940). Thus, the States that ratified the Twenty-first Amendment immediately exercised the authority granted them by 2 of that Amendment to enact the very type of statute that this Court strikes down today. *358 With the clear legislative intent to free state regulation of liquor from federal interference, and the immediate enactment of price-control laws by the ratifying States, the better view of the proper resolution of any apparent conflict between the Sherman Act and a state regulation of the liquor trade was expressed by Justice Frankfurter in United In Justice Frankfurter's view, the Twenty-first Amendment accorded States the power to control the liquor traffic "according to their notions of policy freed from the restrictions upon state power which the Commerce Clause implies as to ordinary articles of commerce." Because Congress enacted the Sherman Act pursuant to its authority in the Commerce Clause, the Sherman Act must yield to state power drawn from the Twenty-first Amendment. Thus, Justice Frankfurter concluded: "If a State for its own sufficient reasons deems it a desirable policy to standardize the price of liquor within its borders either by a direct price-fixing statute or by permissive sanction of such price-fixing in order to discourage the temptations of cheap liquor due to cutthroat competition, the Twenty-first Amendment gives it that power and the Commerce Clause does not gainsay it. Such state policy can not offend the Sherman Law even though distillers or middlemen agree with local dealers to respect this policy." Justice Frankfurter believed that in the absence of a conflict between the state regulatory scheme and the federal antitrust laws, federal antitrust policy was fully applicable even to the intrastate liquor trade. In Frankfort Distilleries itself, the State had not authorized the anticompetitive conduct of the respondents. Once a State has exercised its 2 power, however, "the Sherman Law could not override such exercise of state power." *359 Justice Frankfurter was not alone in this view. In repealing the Miller-Tydings Act — which had authorized States to enact fair trade laws — the Senate believed that the States could continue to impose retail price maintenance on liquor retailers. The Report from the Senate Judiciary Committee on the proposal to repeal the Miller-Tydings Act explicitly assured the Senate that the repeal would not change the power of States to impose retail price maintenance on liquor retailers pursuant to the authority granted the States by the Twenty-first Amendment: "Liquor will not be affected by the repeal of the fair trade laws in the same manner as other products because the Twenty-First Amendment to the Constitution gives the States broad powers over the sale of alcoholic beverages. Thus, while repeal of the fair trade laws generally will prohibit manufacturers from enforcing resale prices, alcohol manufacturers may do such in States which pass price fixing statutes pursuant to the Twenty-First Amendment." S. Rep. No. 94-466, p. 2 (1975). The history and purpose of the Twenty-first Amendment are a compelling indication of an intent to confer on States the power to regulate trade in liquor. Despite this clear intent, the Court in recent years has used a balancing test to resolve conflicts between federal statutes and state laws enacted pursuant to 2. In California Retail Liquor Dealers and once again today, the Court ventured still further from the intent of the Twenty-first Amendment by adopting an unprecedented test that focuses on the wisdom of the State's exercise of its 2 powers. For the Court today does not invalidate the ABC Law because it involves an exercise of power outside the scope of the Twenty-first Amendment — indeed, the Court could not do so given the long history of the use of price controls by state liquor authorities. Instead, in a manner reminiscent of the long-repudiated the Court strikes down the ABC Law because *360 it concludes that the law was not "effective" in preserving small retail establishments or in decreasing alcohol consumption. The proper inquiry, however, is not whether the State of New York chose wisely in enacting a retail price maintenance law, nor whether the State of New York's motivation in doing so was linked to a "central purpos[e]" of the Twenty-first Amendment. The sole "question is whether the provision in this case is an exercise of a power expressly conferred upon the States by the Constitution." Bacchus Imports, Because the State of New York was plainly exercising its 2 power to regulate liquor trade, I respectfully dissent.

Justice Burger

majority

Trammel v. United States

https://www.courtlistener.com/opinion/110212/trammel-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110212/

1979-044

We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as *42 to exclude the voluntary testimony of his wife. 440 U.S. 934 (1979). This calls for a re-examination of Hawkins v. United States, 358 U.S. 74 (1958). I On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S. C. §§ 952 (a), 962 (a), and 963. The indictment also named six unindicted co-conspirators, including petitioner's wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married.[1] She explained that her cooperation with the Government was based on assurances that she would be given *43 lenient treatment.[2] She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication "made in the presence of a third person"; however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S. C. § 5010 (b).[3] In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court's teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit "the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her testimony." 583 F.2d 1166, 1168 (CA10 1978). II The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved *44 by the Justices that a wife cannot be produced either against or for her husband." 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence § 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., § 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223 (1839), in Graves v. United States, 150 U.S. 118 (1893), and again in Jin Fuey Moy v. United States, 254 U.S. 189, 195 (1920), where it was deemed so well established a proposition as to "hardly require[e] mention." Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized.[4]*45 Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." 8 Wigmore § 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore § 2332 et seq.[5] These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence, advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and "abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action." See Rule 23 (2) and comments. Several state legislatures enacted similarly patterned provisions into law.[6] *46 In Hawkins v. United States, 358 U.S. 74 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife's testimony inadmissible; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, but chose not to abandon it. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, "that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences." Id., at 79. Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing "a rule which bars the testimony of one spouse against the other unless both consent." Id., at 78. Accord, Wyatt v. United States, 362 U.S. 525, 528 (1960).[7] However, in so doing, the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience.'" 358 U.S., at 79. *47 III A The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience." Fed. Rule Evid. 501. Cf. Wolfie v. United States, 291 U.S. 7, 12 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis," 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S. Rep. No. 93-1277, p. 11 (1974); H. R. Rep. No. 93-650, p. 8 (1973).[8] Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins *48 rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships— already subject to much erosion in our day—also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change. This was recognized in Funk where the Court "decline[d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist." 290 U.S., at 382. For, as Mr. Justice Black admonished in another setting, "[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it." Francis v. Southern Pacific Co., 333 U.S. 445, 471 (1948) (dissenting opinion). B Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U.S., at 81, n. 3 (STEWART, J., concurring). The number has now declined to 24.[9] In 1974, the National *49 Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma— each of which in 1958 permitted an accused to exclude adverse spousal testimony.[10] The trend in state law toward *50 divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U.S. 393, 404 (1975). Scholarly criticism of the Hawkins rule has also continued unabated.[11] C Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public . . . has a right to every man's evidence.'" United States v. Bryan, 339 U.S. 323, 331 (1950). As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, *51 709-710 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship— once described by this Court as "the best solace of human existence." Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U.S. 332 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making "every man's house his castle," and permits a person *52 to convert his house into "a den of thieves." 5 Rationale of Judicial Evidence 340 (1827). It "secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime." Id., at 338. The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world— indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." Stanton v. Stanton, 421 U.S. 7, 14-15 (1975). The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding— whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.[12] Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this, the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one *53 spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband's control over her testimony. IV Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience" no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification—vesting the privilege in the witness-spouse— furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is Affirmed. MR. JUSTICE STEWART, concurring in the judgment.

We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as *42 to exclude the voluntary testimony of his wife. This calls for a re-examination of I On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U.S. C. 92 (a), 962 (a), and 963. The indictment also named six unindicted co-conspirators, including petitioner's wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 197, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 197, with four ounces of heroin on her person, she boarded a plane for the United During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 197 and that they remained married.[1] She explained that her cooperation with the Government was based on assurances that she would be given *43 lenient treatment.[2] She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government's case to any act she observed during the marriage and to any communication "made in the presence of a third person"; however, confidential communications between petitioner and his wife were held to be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court's pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U.S. C. 010 (b).[3] In the Court of Appeals petitioner's only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court's teaching in and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit "the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her " II The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved *44 by the Justices that a wife cannot be produced either against or for her husband." 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See 2333. It was applied by this Court in in Graves v. United and again in Jin Fuey Moy v. United where it was deemed so well established a proposition as to "hardly require[e] mention." Indeed, it was not until 1933, in Funk v. United that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant's behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized.[4]*4 Professor Wigmore termed it "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." 8 Wigmore 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 94-9 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore 2332 et seq.[] These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence, advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 21 (1942). In 3 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and "abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action." See Rule 23 (2) and comments. Several state legislatures enacted similarly patterned provisions into law.[6] *46 In this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner's wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife's testimony inadmissible; it took note of the critical comments that the common-law rule had engendered, and n. 4, but chose not to abandon it. Also rejected was the Government's suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant's control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the and in England, "that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences." Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing "a rule which bars the testimony of one spouse against the other unless both consent." Accord, Wyatt v. United[7] However, in so doing, the Court made clear that its decision was not meant to "foreclose whatever changes in the rule may eventually be dictated by `reason and experience.'" 38 U.S., *47 III A The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials "governed by the principles of the common law as they may be interpreted in the light of reason and experience." Fed. Rule Evid. 01. Cf. Wolfie v. United The general mandate of Rule 01 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 0. In rejecting the proposed Rules and enacting Rule 01, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to "provide the courts with the flexibility to develop rules of privilege on a case-by-case basis," 0 Cong. Rec. 40891 (statement of Rep. Hungate), and to leave the door open to change. See also S. Rep. No. 93-77, p. 11 ; H. R. Rep. No. 93-60, p. 8 (1973).[8] Although Rule 01 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins *48 rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships— already subject to much erosion in our day—also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change. This was recognized in Funk where the Court "decline[d] to enforce ancient rule[s] of the common law under conditions as they now exist." For, as Mr. Justice Black admonished in another setting, "[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it." B Since 8, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal n. 3 The number has now declined to 24.[9] In 1974, the National *49 Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 04. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma— each of which in 8 permitted an accused to exclude adverse spousal [10] The trend in state law toward *0 divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Scholarly criticism of the Hawkins rule has also continued unabated.[11] C Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public has a right to every man's evidence.'" United v. Bryan, (0). As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United Accord, United v. Nixon, Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship— once described by this Court as "the best solace of human existence." Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United (1); see n. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making "every man's house his castle," and permits a person *2 to convert his house into "a den of thieves." Rationale of Judicial Evidence 340 (1827). It "secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime." The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world— indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that "[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." 14-1 The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding— whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.[] Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this, the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one *3 spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband's control over her IV Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience" no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification—vesting the privilege in the witness-spouse— furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. Here, petitioner's spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. 434 U.S. 37 Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner's claim of privilege, and the judgment of the Court of Appeals is Affirmed. MR. JUSTICE STEWART, concurring in the judgment.

Justice Alito

second_dissenting

Campbell-Ewald v. Gomez

https://www.courtlistener.com/opinion/3177215/campbell-ewald-v-gomez/

https://www.courtlistener.com/api/rest/v3/clusters/3177215/

I join THE CHIEF JUSTICE’s dissent. I agree that a de- fendant may extinguish a plaintiff ’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III prec- edents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff ’s acceptance. E.g., Already, LLC v. Nike, Inc., 568 U. S. ___ (2013) (holding that Nike’s unilateral covenant not to sue mooted Al- ready’s trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would “make good on [its] promise” to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of ROBERTS, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resump- tion of the challenged conduct as soon as the case is dis- missed.” Knox v. Service Employees, 567 U. S. ___, ___– ___ (2012) (slip op., at 6–7). To obtain dismissal in such circumstances, the defendant must “ ‘bea[r] the formidable 2 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Already, supra, at ___ (slip op., at 4) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Ser- vices (TOC), Inc., 528 U.S. 167, 190 (2000)). We have typically applied that rule in cases involving claims for prospective relief, see Knox, supra, at ___ (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “abso- lutely clear” that the plaintiff will be able to receive the offered relief. Already, supra, at ___ (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both in- stances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant’s failure to follow through on its promise to pay would leave the plain- tiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff “effectual relief,” Knox, supra, at ___ (slip op., at 7) (internal quotation marks omitted)— namely, the relief sought in the first place. The plaintiff retains a “personal stake” in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. —————— 1 I say it must be clear that the plaintiff “will be able to receive” the relief, rather than that the plaintiff “will receive” the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter. Cite as: 577 U. S. ____ (2016) 3 ALITO, J., dissenting Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff ’s injury cannot reason- ably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has ren- dered a damages claim moot. How, then, can a defendant make “absolutely clear” that it will pay the relief it has offered? The most straightfor- ward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name. See California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313–314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. §§2041, 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 —————— 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the views of Gomez’s amicus, there is no reason to force a defendant to effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents “provide sufficiently specific principles to resolve this case,” I would not apply the “rigid formalities” of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur- ring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extin- guished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot. 4 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting While outright payment is the surest way for a defend- ant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the de- fendant has already paid. I believe Campbell clears the mark in this case. As THE CHIEF JUSTICE observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis “to argue that Campbell might not make good on that promise” if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell’s offer of com- plete relief should have rendered Gomez’s damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more sub- stantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. Already, 568 U. S., at ___–___ (KENNEDY, J., concurring) (slip op., at 3–4) (em- phasizing the “formidable burden on the party asserting mootness” and noting possible “doubts that Nike’s showing [of mootness] would suffice in other circumstances”). The Court does not dispute Campbell’s ability or will- ingness to pay, but nonetheless concludes that its unac- cepted offer did not moot Gomez’s claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff ’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing Already, supra, and Alvarez v. Smith, 558 U.S. 87 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either di- rectly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds.3 —————— 3 Although it does not resolve the issue, the majority raises the possi- bility that a defendant must both pay the requisite funds and have “the court . . . ente[r] judgment for the plaintiff in that amount.” Ante, at 11. Cite as: 577 U. S. ____ (2016) 5 ALITO, J., dissenting —————— I do not see how that can be reconciled with Already, which affirmed an order of dismissal—not judgment for the plaintiff—where the plaintiff had received full relief from the defendant. Already, LLC v. Nike, Inc., 568 U. S. ___, ___–___, ___ (2013) (slip op., at 2–3, 15).

I join THE CHIEF JUSTICE’s dissent. I agree that a de- fendant may extinguish a plaintiff ’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III prec- edents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff ’s acceptance. E.g., LLC v. Nike, Inc., 568 U. S. (2013) (holding that Nike’s unilateral covenant not to sue mooted Al- ready’s trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would “make good on [its] promise” to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of ROBERTS, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resump- tion of the challenged conduct as soon as the case is dis- missed.” v. Service Employees, 567 U. S. – (2012) (slip op., at 6–7). To obtain dismissal in such circumstances, the defendant must “ ‘bea[r] the formidable 2 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” at (slip op., at 4) (quoting Friends of the Earth, ). We have typically applied that rule in cases involving claims for prospective relief, see at (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “abso- lutely clear” that the plaintiff will be able to receive the offered relief. at (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both in- stances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant’s failure to follow through on its promise to pay would leave the plain- tiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff “effectual relief,” at (slip op., at 7) (internal quotation marks omitted)— namely, the relief sought in the first place. The plaintiff retains a “personal stake” in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. —————— 1 I say it must be clear that the plaintiff “will be able to receive” the relief, rather than that the plaintiff “will receive” the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter. Cite as: 577 U. S. (2016) 3 ALITO, J., dissenting Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff ’s injury cannot reason- ably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has ren- dered a damages claim moot. How, then, can a defendant make “absolutely clear” that it will pay the relief it has offered? The most straightfor- ward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name. See California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313–314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 —————— 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the views of Gomez’s amicus, there is no reason to force a defendant to effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents “provide sufficiently specific principles to resolve this case,” I would not apply the “rigid formalities” of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur- ring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extin- guished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot. 4 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting While outright payment is the surest way for a defend- ant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the de- fendant has already paid. I believe Campbell clears the mark in this case. As THE CHIEF JUSTICE observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis “to argue that Campbell might not make good on that promise” if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell’s offer of com- plete relief should have rendered Gomez’s damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more sub- stantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. 568 U. S., at – (KENNEDY, J., concurring) (slip op., at 3–4) (em- phasizing the “formidable burden on the party asserting mootness” and noting possible “doubts that Nike’s showing [of mootness] would suffice in other circumstances”). The Court does not dispute Campbell’s ability or will- ingness to pay, but nonetheless concludes that its unac- cepted offer did not moot Gomez’s claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff ’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing and Alvarez v. Smith, 558 U.S. 87 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either di- rectly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds.3 —————— 3 Although it does not resolve the issue, the majority raises the possi- bility that a defendant must both pay the requisite funds and have “the court ente[r] judgment for the plaintiff in that amount.” Ante, at 11. Cite as: 577 U. S. (2016) 5 ALITO, J., dissenting —————— I do not see how that can be reconciled with which affirmed an order of dismissal—not judgment for the plaintiff—where the plaintiff had received full relief from the defendant. LLC v. Nike, Inc., 568 U. S. –, (2013) (slip op., at 2–3, 15).

per_curiam

per_curiam

Texas v. Louisiana

https://www.courtlistener.com/opinion/109482/texas-v-louisiana/

https://www.courtlistener.com/api/rest/v3/clusters/109482/

1975-126

We have already decided that the relevant boundary between the States of Texas and Louisiana is the geographic *466 middle of Sabine Pass, Sabine Lake, and Sabine River from the mouth of the Sabine in the Gulf of Mexico to the thirty-second degree of north latitude. 410 U.S. 702 (1973). We have also held that all islands in the east half of the Sabine River when Louisiana was admitted as a State in 1812, or thereafter formed, belong to Louisiana. Delimitation of the boundary and decision as to ownership of the islands in the west half of the Sabine were deferred pending further proceedings before the Special Master in which the United States was invited to participate. Id., at 712-714. The litigation subsequently was enlarged upon the motion of Louisiana to include a determination of the lateral seaward boundary between Texas and Louisiana, and Texas and the United States extending into the Gulf of Mexico. 414 U.S. 904 (1973).[1] Pleadings relating to the lateral boundary were filed by the States and by the United States. The United States also claimed title to six of the islands in the western half of the Sabine, 414 U.S. 1107 (1973); it subsequently amended its complaint, however, to withdraw its claim to all islands except one identified as "Sam." 416 U.S. 903 (1974). The city of Port Arthur, Tex., was permitted to intervene for purposes of protecting its interests in the island claims of the United States. 416 U.S. 965 (1974). *467 After hearings on referral, the Special Master has concluded and recommends: "1) That the boundary between the States of Texas and Louisiana from 32° to 30° north latitude be established as shown upon Texas Exhibit AAA 1-12, pursuant to agreement of the parties. "2) That the boundary line from 30° north latitude to the Gulf of Mexico and to the terminus of the jetties be established as being the median line marked on Louisiana Exhibits DDD and III and hereinabove described specifically, with the right to the States of Texas and Louisiana to alter such boundary within Sabine Lake by agreement within the time proposed. "3) That the claim of the United States of America to an island named `Sam' be denied. "4) That the lateral boundary in the Gulf of Mexico between the States of Texas and Louisiana and between the State of Texas and the United States of America be established as the line shown on your Special Master's Exhibit and marked `U. S.' "5) That the cost be taxed to the parties in accordance with their contribution to the fund established by your Special Master and deposited in the First National Bank & Trust Company, Lincoln, Nebraska; that no costs be taxed for the services of your Special Master herein; that upon the order of termination of this case your Special Master file a report setting forth the amount of money received by him from the parties for the payment of costs and expenses pursuant to his requests and of the disbursement thereof for approval by the Court unless prior thereto the parties in writing have approved your Special Master's report as to the disbursement of said moneys." *468 Exceptions to the recommendations of the Special Master have been filed by Louisiana and Texas. 423 U.S. 909 (1975). At approximately 30° north latitude, the Sabine River enters into Sabine Lake through three channels. Louisiana excepts to that portion of the Special Master's report which marks the boundary line between the States through the passage more recently known as "middle pass," instead of in the geographic middle of the "west pass." Louisiana contends that the Special Master acted contrary to our rejection of the thalweg doctrine earlier in this case, 410 U.S., at 709, by considering navigation as the criterion to locate the boundary in the middle channel. We think it clear, however, that the Special Master makes reference to the volume of water flowing through these passes solely in an analytic context reflecting the history and geography of the region. We are persuaded that the Special Master made his determination consistent with our earlier holding. Texas has filed exceptions to the Special Master's delimitation of the lateral seaward boundary in the Gulf of Mexico. Texas argues that the Special Master erred in concluding that Texas and Louisiana did not have a historic boundary in the Gulf; we think that misreads the findings of the Special Master. The Special Master does not reject Texas' contention that there was a historic "inchoate" boundary; what he concludes is that there has never been an established offshore boundary between the States. We find the Special Master correct in his conclusion and conclude that he properly considered how such a boundary should be now constructed. All parties agree that the lateral seaward boundary is to be constructed by reference to the median line, or equidistant principle, recognized in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U. S. T. (pt. 2) 1606. T. I. A. S. No. *469 5639.[2] Texas, however, excepts to the Special Master's determination that the equidistant principle is to be applied to the coastlines of the States as affected by jetties at the mouth of the Sabine River.[3] Texas urges that the relevant coastline is the coastline that existed in 1845 when it was admitted to the Union. Texas argues that this is a domestic dispute involving historical precedents and that the States' offshore boundary should be constructed as Congress would have done in 1845 had it considered the matter. The short answer to Texas' argument is that no line was drawn by Congress and that the boundary is being described in this litigation for the first time. The Court *470 should not be called upon to speculate as to what Congress might have done. We hold that the Special Master correctly applied the Convention on the Territorial Sea and Contiguous Zone to this suit. As we previously have recognized, "the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome." United States v. California, 381 U.S. 139, 165 (1965). When read together, Arts. 12 and 8 of the Convention clearly require that the median line be measured with reference to the jetties.[4] Accordingly, the exceptions of Louisiana and Texas are overruled. The parties are directed within 90 days to submit a proposed decree which has the approval of the Special Master. If the States cannot agree, the Special Master is requested, after appropriate hearings, to prepare and submit a recommended decree.

We have already decided that the relevant boundary between the States of Texas and Louisiana is the geographic *466 middle of Sabine Pass, Sabine Lake, and Sabine River from the mouth of the Sabine in the Gulf of Mexico to the thirty-second degree of north latitude. We have also held that all islands in the east half of the Sabine River when Louisiana was admitted as a State in 1812, or thereafter formed, belong to Louisiana. Delimitation of the boundary and decision as to ownership of the islands in the west half of the Sabine were deferred pending further proceedings before the Special Master in which the United States was invited to participate. The litigation subsequently was enlarged upon the motion of Louisiana to include a determination of the lateral seaward boundary between Texas and Louisiana, and Texas and the United States extending into the Gulf of Mexico.[1] Pleadings relating to the lateral boundary were filed by the States and by the United States. The United States also claimed title to six of the islands in the western half of the Sabine, ; it subsequently amended its complaint, however, to withdraw its claim to all islands except one identified as "Sam." The city of Port Arthur, Tex., was permitted to intervene for purposes of protecting its interests in the island claims of the United States. *467 After hearings on referral, the Special Master has concluded and recommends: "1) That the boundary between the States of Texas and Louisiana from 32° to 30° north latitude be established as shown upon Texas Exhibit AAA 1-12, pursuant to agreement of the parties. "2) That the boundary line from 30° north latitude to the Gulf of Mexico and to the terminus of the jetties be established as being the median line marked on Louisiana Exhibits DDD and III and hereinabove described specifically, with the right to the States of Texas and Louisiana to alter such boundary within Sabine Lake by agreement within the time proposed. "3) That the claim of the United States of America to an island named `Sam' be denied. "4) That the lateral boundary in the Gulf of Mexico between the States of Texas and Louisiana and between the State of Texas and the United States of America be established as the line shown on your Special Master's Exhibit and marked `U. S.' "5) That the cost be taxed to the parties in accordance with their contribution to the fund established by your Special Master and deposited in the First National Bank & Trust Company, Lincoln, Nebraska; that no costs be taxed for the services of your Special Master herein; that upon the order of termination of this your Special Master file a report setting forth the amount of money received by him from the parties for the payment of costs and expenses pursuant to his requests and of the disbursement thereof for approval by the Court unless prior thereto the parties in writing have approved your Special Master's report as to the disbursement of said moneys." *468 Exceptions to the recommendations of the Special Master have been filed by Louisiana and Texas. At approximately 30° north latitude, the Sabine River enters into Sabine Lake through three channels. Louisiana excepts to that portion of the Special Master's report which marks the boundary line between the States through the passage more recently known as "middle pass," instead of in the geographic middle of the "west pass." Louisiana contends that the Special Master acted contrary to our rejection of the thalweg doctrine earlier in this by considering navigation as the criterion to locate the boundary in the middle channel. We think it clear, however, that the Special Master makes reference to the volume of water flowing through these passes solely in an analytic context reflecting the history and geography of the region. We are persuaded that the Special Master made his determination consistent with our earlier holding. Texas has filed exceptions to the Special Master's delimitation of the lateral seaward boundary in the Gulf of Mexico. Texas argues that the Special Master erred in concluding that Texas and Louisiana did not have a historic boundary in the Gulf; we think that misreads the findings of the Special Master. The Special Master does not reject Texas' contention that there was a historic "inchoate" boundary; what he concludes is that there has never been an established offshore boundary between the States. We find the Special Master correct in his conclusion and conclude that he properly considered how such a boundary should be now constructed. All parties agree that the lateral seaward boundary is to be constructed by reference to the median line, or equidistant principle, recognized in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U. S. T. (pt. 2) 1606. T. I. A. S. No. *469 5639.[2] Texas, however, excepts to the Special Master's determination that the equidistant principle is to be applied to the coastlines of the States as affected by jetties at the mouth of the Sabine River.[3] Texas urges that the relevant coastline is the coastline that existed in 1845 when it was admitted to the Union. Texas argues that this is a domestic dispute involving historical precedents and that the States' offshore boundary should be constructed as Congress would have done in 1845 had it considered the matter. The short answer to Texas' argument is that no line was drawn by Congress and that the boundary is being described in this litigation for the first time. The Court *470 should not be called upon to speculate as to what Congress might have done. We hold that the Special Master correctly applied the Convention on the Territorial Sea and Contiguous Zone to this suit. As we previously have recognized, "the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome." United When read together, Arts. 12 and 8 of the Convention clearly require that the median line be measured with reference to the jetties.[4] Accordingly, the exceptions of Louisiana and Texas are overruled. The parties are directed within 90 days to submit a proposed decree which has the approval of the Special Master. If the States cannot agree, the Special Master is requested, after appropriate hearings, to prepare and submit a recommended decree.

Justice Rehnquist

dissenting

Blackledge v. Perry

https://www.courtlistener.com/opinion/109042/blackledge-v-perry/

https://www.courtlistener.com/api/rest/v3/clusters/109042/

1973-114

I would find it more difficult than the Court apparently does in Part I of its opinion to conclude that the very bringing of more serious charges against respondent following his request for a trial de novo violated due process as defined in North Carolina v. Pearce, 395 U.S. 711 (1969). Still more importantly, I believe the Court's conclusion that respondent may assert the Court's new-found Pearce claim in this federal habeas action, despite his plea of guilty to the charges brought after his invocation of his statutory right to a trial de novo, marks an unwarranted departure from the principles we have recently enunciated in Tollett v. Henderson, 411 U.S. 258 (1973), and the Brady trilogy, Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); and Parker v. North Carolina, 397 U.S. 790 (1970). I As the Court notes, in addition to his claim based on Pearce, respondent contends that his felony indictment in the Superior Court violated his rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 (1969). Presumably because we have earlier held that "the jeopardy incident to" a trial does "not extend to an offense beyond [the trial court's] jurisdiction," Diaz v. United States, 223 U.S. 442, 449 (1912), the Court rests its decision instead on the Fourteenth Amendment due process doctrine of Pearce. In so doing, I think the Court too readily equates the role of the prosecutor, who is a natural adversary of the defendant and who, we observed in *33 Chaffin v. Stynchcombe, 412 U.S. 17, 27 n. 13 (1973), "often request[s] more than [he] can reasonably expect to get," with that of the sentencing judge in Pearce. I also think the Court passes too lightly over the reasoning of Colten v. Kentucky, 407 U.S. 104 (1972), in which we held that imposition of the prophylactic rule of Pearce was not necessary in Kentucky's two-tier system for de novo appeals from justice court convictions, even though the judge at retrial might impose a more severe sentence than had been imposed by the justice court after the original trial. The concurring opinion in Pearce, 395 U.S. 711, 726, took the position that the imposition of a penalty after retrial which exceeded the penalty imposed after the first trial violated the guarantee against double jeopardy. But the opinion of the Court, relying on cases such as United States v. Ball, 163 U.S. 662 (1896), and Stroud v. United States, 251 U.S. 15 (1919), specifically rejected such an approach to the case. The Court went on to hold "that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction." 395 U.S., at 723. The Court concluded by holding that due process "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id., at 725. To make certain that those requirements of due process were met, the Court laid down the rule that "whenever a judge imposes a more severe sentence upon a defendant after *34 a new trial, the reasons for his doing so must affirmatively appear." Id., at 726. Thus the avowed purpose of the remedy fashioned in Pearce was to prevent judicial vindictiveness from resulting in longer sentences after a retrial following successful appeal. Since in theory if not in practice the second sentence in the Pearce situation might be expected to be the same as the first unless influenced by vindictiveness or by intervening conduct of the defendant, in theory at least the remedy mandated there reached no further than the identified wrong. The same cannot be said here. For while indictment on more serious charges after a successful appeal would present a problem closely analogous to that in Pearce in this respect, the bringing of more serious charges after a defendant's exercise of his absolute right to a trial de novo in North Carolina's two-tier system does not. The prosecutor here elected to proceed initially in the State District Court where felony charges could not be prosecuted, for reasons which may well have been unrelated to whether he believed respondent was guilty of and could be convicted of the felony with which he was later charged. Both prosecutor and defendant stand to benefit from an initial prosecution in the District Court, the prosecutor at least from its less burdensome procedures and the defendant from the opportunity for an initial acquittal and the limited penalties. With the countervailing reasons for proceeding only on the misdemeanor charge in the District Court no longer applicable once the defendant has invoked his statutory right to a trial de novo, a prosecutor need not be vindictive to seek to indict and convict a defendant of the more serious of the two crimes of which he believes him guilty. Thus even if one accepts the Court's equation of prosecutorial vindictiveness with judicial vindictiveness, here, unlike Pearce, the Court's remedy reaches far beyond the wrong it identifies. *35 Indeed, it is not a little puzzling that the Court's remedy is the same that would follow upon a conclusion that the bringing of the new charges violated respondent's rights under the Double Jeopardy Clause. And the Court's conclusion that "[t]he very initiation of the proceedings against [respondent] in the Superior Court thus operated to deny him due process of law" surely sounds in the language of double jeopardy, however it may be dressed in due process garb. II If the Court is correct in stating the consequences of upholding respondent's constitutional claim here, and indeed the State lacked the very power to bring him to trial, I believe this case is governed by cases culminating in Tollett v. Henderson, 411 U.S. 258 (1973). In that case the State no doubt lacked "power" to bring Henderson to trial without a valid grand jury indictment; yet that constitutional disability was held by us to be merged in the guilty plea. I do not see why a constitutional claim the consequences of which make it the identical twin of double jeopardy may not, like double jeopardy, be waived by the person for whose benefit it is accorded. Kepner v. United States, 195 U.S. 100, 131 (1904); Harris v. United States, 237 F.2d 274, 277 (CA8 1956); Kistner v. United States, 332 F.2d 978, 980 (CA8 1964). In Tollett v. Henderson, supra, we held that "just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, . . . respondent's guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury." 411 U.S., at 266. Surely the due process violation found by the Court today is no less "antecedent" than the constitutional violations claimed to make the *36 grand jury indictment invalid in Tollett v. Henderson, the confession inadmissible in McMann, or the exercise of the right to a jury trial impermissibly burdened in Brady and Parker. As the Court notes, we reaffirmed in Tollett v. Henderson the principle of the Brady trilogy that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process." 411 U.S., at 267. We went on to say there: "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Ibid. The assertion by the Court that this reasoning is somehow inapplicable here because the claim goes "to the very power of the State to bring the defendant into court to answer the charge brought against him" is little other than a conclusion. Any difference between the issue resolved the other way in Tollett v. Henderson and the issue before us today is at most semantic. But the Court's "test" not only fails to distinguish Henderson; it also fails to provide any reasoned basis on which to approach such questions as whether a speedy trial claim is merged in a guilty plea. I believe the Court's departure today from the principles of Henderson and the cases preceding it must be recognized as a potentially major breach in the wall of certainty surrounding guilty pleas for which we have found constitutional sanction in those cases. There is no indication in this record that respondent's guilty plea was the result of an agreement with the prosecutor. *37 But the Court's basis for distinguishing the Henderson and Brady cases seems so insubstantial as to permit the doctrine of this case to apply to guilty pleas which have been obtained as a result of "plea bargains." In that event it will be not merely the State which stands to lose, but the accused defendant in the position of the respondent as well. Since the great majority of criminal cases are resolved by plea bargaining, defendants as a class have at least as great an interest in the finality of voluntary guilty pleas as do prosecutors. If that finality may be swept aside with the ease exhibited by the Court's approach today, prosecutors will have a reduced incentive to bargain, to the detriment of the many defendants for whom plea bargaining offers the only hope for ameliorating the consequences to them of a serious criminal charge. III But if, as I believe, a proper analysis of respondent's constitutional claim produces at most a violation of the standards laid down in North Carolina v. Pearce, supra, I agree with the Court, though not for the reasons it gives, that respondent's claim was not merged in his guilty plea. Imposition of sentence in violation of Pearce is not an "antecedent constitutional violation," since sentence is customarily imposed after a plea of guilty, and is a separate legal event from the determination by the Court that the defendant is in fact guilty of the offense with which he is charged. If respondent's claim is properly analyzed in terms of Pearce, I would think that a result quite different from that mandated in the Court's opinion would obtain. Pearce and the decisions following it have made it clear that the wrong lies in the increased sentence, not in the judgment of conviction, and that the remedy for a Pearce defect is a remand for sentencing consistent with due *38 process. North Carolina v. Rice, 404 U.S. 244, 247-248 (1971). In Rice we concluded that the Court of Appeals had erred in ruling that Pearce authorized the expunging of Rice's conviction after his trial de novo in North Carolina: "It could not be clearer . . . that Pearce does not invalidate the conviction that resulted from Rice's second trial . . . . Pearce, in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice's trial de novo was vulnerable under Pearce, Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence." Ibid. Since Rice had completely served his sentence, rather than reaching the merits of Rice's Pearce claim, we remanded for a determination whether any collateral consequences flowed from his service of the longer sentence imposed after retrial, or whether the case was moot. Here, while respondent faced the prospect of a more severe sentence at the conclusion of his felony trial in the Superior Court of North Carolina, it was by no means self-evident that this would be the result. The maximum sentence which he could receive on the misdemeanor count was one and one-half years, but nothing in the record indicates that the Superior Court judge might not impose a lesser penalty than that, or even grant probation. Nor is there any indication in the habeas record, which contains only a fragment of the state court proceedings, that the Superior Court judge might not at the conclusion of the trial and after a verdict of guilty have before him for sentencing purposes information which would support an augmented sentence under Pearce. In fact, the habeas court found that the sentence actually *39 imposed was more severe than that which could have been imposed under the misdemeanor charge. But the remedy for that violation should be a direction to the state court to resentence in accordance with Pearce, rather than an order completely annulling the conviction. Respondent was originally convicted of assaulting a fellow inmate with a deadly weapon, and later pleaded guilty to a charge of assaulting the inmate with a deadly weapon with intent to kill him. But in spite of both a verdict of guilty on one charge and a plea of guilty to the other, the Court's decision may well, as a practical matter, assure that no penalty whatever will be imposed on him. MR. JUSTICE POWELL joins in Part II of this opinion.

I would find it more difficult than the Court apparently does in Part I of its opinion to conclude that the very bringing of more serious charges against respondent following his request for a trial de novo violated due process as defined in North Still more importantly, I believe the Court's conclusion that respondent may assert the Court's new-found claim in this federal habeas action, despite his plea of guilty to the charges brought after his invocation of his statutory right to a trial de novo, marks an unwarranted departure from the principles we have recently enunciated in and the Brady trilogy, ; ; and I As the Court notes, in addition to his claim based on respondent contends that his felony indictment in the Superior Court violated his rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Presumably because we have earlier held that "the jeopardy incident to" a trial does "not extend to an offense beyond [the trial court's] jurisdiction," the Court rests its decision instead on the Fourteenth Amendment due process doctrine of In so doing, I think the Court too readily equates the role of the prosecutor, who is a natural adversary of the defendant and who, we observed in *33 "often request[s] more than [he] can reasonably expect to get," with that of the sentencing judge in I also think the Court passes too lightly over the reasoning of in which we held that imposition of the prophylactic rule of was not necessary in Kentucky's two-tier system for de novo appeals from justice court convictions, even though the judge at retrial might impose a more severe sentence than had been imposed by the justice court after the original trial. The concurring opinion in and specifically rejected such an approach to the case. The Court went on to hold "that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction." The Court concluded by holding that due process "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." To make certain that those requirements of due process were met, the Court laid down the rule that "whenever a judge imposes a more severe sentence upon a defendant after *34 a new trial, the reasons for his doing so must affirmatively appear." at Thus the avowed purpose of the remedy fashioned in was to prevent judicial vindictiveness from resulting in longer sentences after a retrial following successful appeal. Since in theory if not in practice the second sentence in the situation might be expected to be the same as the first unless influenced by vindictiveness or by intervening conduct of the defendant, in theory at least the remedy mandated there reached no further than the identified wrong. The same cannot be said here. For while indictment on more serious charges after a successful appeal would present a problem closely analogous to that in in this respect, the bringing of more serious charges after a defendant's exercise of his absolute right to a trial de novo in North Carolina's two-tier system does not. The prosecutor here elected to proceed initially in the State District Court where felony charges could not be prosecuted, for reasons which may well have been unrelated to whether he believed respondent was guilty of and could be convicted of the felony with which he was later charged. Both prosecutor and defendant stand to benefit from an initial prosecution in the District Court, the prosecutor at least from its less burdensome procedures and the defendant from the opportunity for an initial acquittal and the limited penalties. With the countervailing reasons for proceeding only on the misdemeanor charge in the District Court no longer applicable once the defendant has invoked his statutory right to a trial de novo, a prosecutor need not be vindictive to seek to indict and convict a defendant of the more serious of the two crimes of which he believes him guilty. Thus even if one accepts the Court's equation of prosecutorial vindictiveness with judicial vindictiveness, here, unlike the Court's remedy reaches far beyond the wrong it identifies. *35 Indeed, it is not a little puzzling that the Court's remedy is the same that would follow upon a conclusion that the bringing of the new charges violated respondent's rights under the Double Jeopardy Clause. And the Court's conclusion that "[t]he very initiation of the proceedings against [respondent] in the Superior Court thus operated to deny him due process of law" surely sounds in the language of double jeopardy, however it may be dressed in due process garb. II If the Court is correct in stating the consequences of upholding respondent's constitutional claim here, and indeed the State lacked the very power to bring him to trial, I believe this case is governed by cases culminating in In that case the State no doubt lacked "power" to bring to trial without a valid grand jury indictment; yet that constitutional disability was held by us to be merged in the guilty plea. I do not see why a constitutional claim the consequences of which make it the identical twin of double jeopardy may not, like double jeopardy, be waived by the person for whose benefit it is accorded. ; ; In we held that "just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, respondent's guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury." Surely the due process violation found by the Court today is no less "antecedent" than the constitutional violations claimed to make the *36 grand jury indictment invalid in the confession inadmissible in McMann, or the exercise of the right to a jury trial impermissibly burdened in Brady and Parker. As the Court notes, we reaffirmed in the principle of the Brady trilogy that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process." We went on to say there: "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." The assertion by the Court that this reasoning is somehow inapplicable here because the claim goes "to the very power of the State to bring the defendant into court to answer the charge brought against him" is little other than a conclusion. Any difference between the issue resolved the other way in and the issue before us today is at most semantic. But the Court's "test" not only fails to distinguish ; it also fails to provide any reasoned basis on which to approach such questions as whether a speedy trial claim is merged in a guilty plea. I believe the Court's departure today from the principles of and the cases preceding it must be recognized as a potentially major breach in the wall of certainty surrounding guilty pleas for which we have found constitutional sanction in those cases. There is no indication in this record that respondent's guilty plea was the result of an agreement with the prosecutor. *37 But the Court's basis for distinguishing the and Brady cases seems so insubstantial as to permit the doctrine of this case to apply to guilty pleas which have been obtained as a result of "plea bargains." In that event it will be not merely the State which stands to lose, but the accused defendant in the position of the respondent as well. Since the great majority of criminal cases are resolved by plea bargaining, defendants as a class have at least as great an interest in the finality of voluntary guilty pleas as do prosecutors. If that finality may be swept aside with the ease exhibited by the Court's approach today, prosecutors will have a reduced incentive to bargain, to the detriment of the many defendants for whom plea bargaining offers the only hope for ameliorating the consequences to them of a serious criminal charge. III But if, as I believe, a proper analysis of respondent's constitutional claim produces at most a violation of the standards laid down in North I agree with the Court, though not for the reasons it gives, that respondent's claim was not merged in his guilty plea. Imposition of sentence in violation of is not an "antecedent constitutional violation," since sentence is customarily imposed after a plea of guilty, and is a separate legal event from the determination by the Court that the defendant is in fact guilty of the offense with which he is charged. If respondent's claim is properly analyzed in terms of I would think that a result quite different from that mandated in the Court's opinion would obtain. and the decisions following it have made it clear that the wrong lies in the increased sentence, not in the judgment of conviction, and that the remedy for a defect is a remand for sentencing consistent with due *38 process. North In Rice we concluded that the Court of Appeals had erred in ruling that authorized the expunging of Rice's conviction after his trial de novo in North Carolina: "It could not be clearer that does not invalidate the conviction that resulted from Rice's second trial in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice's trial de novo was vulnerable under Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence." Since Rice had completely served his sentence, rather than reaching the merits of Rice's claim, we remanded for a determination whether any collateral consequences flowed from his service of the longer sentence imposed after retrial, or whether the case was moot. Here, while respondent faced the prospect of a more severe sentence at the conclusion of his felony trial in the Superior Court of North Carolina, it was by no means self-evident that this would be the result. The maximum sentence which he could receive on the misdemeanor count was one and one-half years, but nothing in the record indicates that the Superior Court judge might not impose a lesser penalty than that, or even grant probation. Nor is there any indication in the habeas record, which contains only a fragment of the state court proceedings, that the Superior Court judge might not at the conclusion of the trial and after a verdict of guilty have before him for sentencing purposes information which would support an augmented sentence under In fact, the habeas court found that the sentence actually *39 imposed was more severe than that which could have been imposed under the misdemeanor charge. But the remedy for that violation should be a direction to the state court to resentence in accordance with rather than an order completely annulling the conviction. Respondent was originally convicted of assaulting a fellow inmate with a deadly weapon, and later pleaded guilty to a charge of assaulting the inmate with a deadly weapon with intent to kill him. But in spite of both a verdict of guilty on one charge and a plea of guilty to the other, the Court's decision may well, as a practical matter, assure that no penalty whatever will be imposed on him. MR. JUSTICE POWELL joins in Part II of this opinion.

Justice Stevens

second_dissenting

Patterson v. Illinois

https://www.courtlistener.com/opinion/112127/patterson-v-illinois/

https://www.courtlistener.com/api/rest/v3/clusters/112127/

1987-137

The Court should not condone unethical forms of trial preparation by prosecutors or their investigators. In civil litigation it is improper for a lawyer to communicate with his or her adversary's client without either notice to opposing counsel or the permission of the court.[1] An attempt to obtain evidence for use at trial by going behind the back of one's adversary would be not only a serious breach of professional ethics but also a manifestly unfair form of trial practice. In the criminal context, the same ethical rules apply and, in my opinion, notions of fairness that are at least as demanding should also be enforced. After a jury has been empaneled and a criminal trial is in progress, it would obviously be improper for the prosecutor to conduct a private interview with the defendant for the purpose *302 of obtaining evidence to be used against him at trial. By "private interview" I mean, of course, an interview initiated by the prosecutor, or his or her agents, without notice to the defendant's lawyer and without the permission of the court. Even if such an interview were to be commenced by giving the defendant the five items of legal advice that are mandated by Miranda, see ante, at 288, n. 1, I have no doubt that this Court would promptly and unanimously condemn such a shabby practice. As our holding in Michigan v. Jackson, 475 U.S. 625 (1986), suggests, such a practice would not simply constitute a serious ethical violation, but would rise to the level of an impairment of the Sixth Amendment right to counsel.[2] *303 The question that this case raises, therefore, is at what point in the adversary process does it become impermissible for the prosecutor, or his or her agents, to conduct such private interviews with the opposing party? Several alternatives are conceivable: when the trial commences, when the defendant has actually met and accepted representation by his or her appointed counsel, when counsel is appointed, or when the adversary process commences. In my opinion, the Sixth Amendment right to counsel demands that a firm and unequivocal line be drawn at the point at which adversary proceedings commence. In prior cases this Court has used strong language to emphasize the significance of the formal commencement of adversary proceedings. Such language has been employed to explain decisions denying the defendant the benefit of the protection of the Sixth Amendment in preindictment settings, but an evenhanded interpretation of the Amendment would support the view that additional protection should automatically attach the moment the formal proceedings *304 begin. One such example is Kirby v. Illinois, 406 U.S. 682 (1972), in which the Court concluded that the general rule requiring the presence of counsel at pretrial, lineup identifications, see United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967), should not extend to protect custodial defendants not yet formally charged. Justice Stewart's plurality opinion explained the significance of the formal charge: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U. S., at 66-71; Massiah v. United States, 377 U.S. 201; Spano v. New York, 360 U.S. 315, 324 (Douglas, J., concurring)." 406 U.S., at 689-690 (footnote omitted). Similarly, in United States v. Gouveia, 467 U.S. 180 (1984), we relied upon the significance of the absence of a formal charge in concluding that the Sixth Amendment does not require the appointment of counsel for indigent prison inmates confined in administrative detention while authorities investigate their possible involvement in criminal activity. Again the Court noted that "given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial *305 criminal proceedings `is far from a mere formalism.' Kirby v. Illinois, 406 U. S., at 689." Id., at 189. Most recently, in Moran v. Burbine, 475 U.S. 412 (1986), the Court upheld a waiver of the right to counsel in a pretrial context even though the waiver "would not be valid" if the same situation had arisen after indictment, see ante, at 296-297, n. 9. In the Moran opinion, the Court explained: "It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches. United States v. Gouveia, 467 U.S. 180, 187 (1984); Kirby v. Illinois, 406 U.S. 682, 689 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U. S., at 400-401. And we readily agree that once the right has attached, it follows that the police may not interfere with the efforts of a defendant's attorney to act as a `"medium" between [the suspect] and the State' during the interrogation. Maine v. Moulton, 474 U.S. 159, 176 (1985); see Brewer v. Williams, supra, at 401, n. 8. The difficulty for respondent is that the interrogation sessions that yielded the inculpatory statements took place before the initiation of `adversary judicial proceedings.' United States v. Gouveia, supra, at 192." 475 U.S., at 428. Today, however, in reaching a decision similarly favorable to the interest in law enforcement unfettered by process concerns, the Court backs away from the significance previously attributed to the initiation of formal proceedings. In the majority's view, the purported waiver of counsel in this case is properly equated with that of an unindicted suspect. Yet, as recognized in Kirby, Gouveia, and Moran, important differences *306 separate the two.[3] The return of an indictment, or like instrument, substantially alters the relationship between the state and the accused. Only after a formal accusation has "the government . . . committed itself to prosecute, and only then [have] the adverse positions of government and defendant. . . solidified." Kirby, 406 U. S., at 689. Moreover, the return of an indictment also presumably signals the government's conclusion that it has sufficient evidence to establish a prima facie case. As a result, any further interrogation can only be designed to buttress the government's case; authorities are no longer simply attempting " `to solve a crime.' " United States v. Mohabir, 624 F.2d 1140, 1148 (CA2 1980) (quoting People v. Waterman, 9 N.Y. 2d 561, 565, 175 N.E.2d 445, 447 (1961)); see also Moran v. Burbine, 475 U. S., at 430. Given the significance of the initiation of formal proceedings and the concomitant shift in the relationship between the state and the accused, I think it quite wrong to suggest that Miranda warnings — or for that *307 matter, any warnings offered by an adverse party — provide a sufficient basis for permitting the undoubtedly prejudicial — and, in my view, unfair — practice of permitting trained law enforcement personnel and prosecuting attorneys to communicate with as-of-yet unrepresented criminal defendants. It is well settled that there is a strong presumption against waiver of Sixth Amendment protections, see Michigan v. Jackson, 475 U. S., at 633; Von Moltke v. Gillies, 332 U.S. 708, 723 (1948) (plurality opinion); Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and that a waiver may only be accepted if made with full awareness of "the dangers and disadvantages of self-representation," Faretta v. California, 422 U.S. 806, 835 (1975); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942) (accused "may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open"). Warnings offered by an opposing party, whether detailed or cursory, simply cannot satisfy this high standard. The majority premises its conclusion that Miranda warnings lay a sufficient basis for accepting a waiver of the right to counsel on the assumption that those warnings make clear to an accused "what a lawyer could `do for him' during the postindictment questioning: namely, advise [him] to refrain from making any [incriminating] statements." Ante, at 294 (footnote omitted).[4] Yet, this is surely a gross understatement of the disadvantage of proceeding without a lawyer and *308 an understatement of what a defendant must understand to make a knowing waiver.[5] The Miranda warnings do not, for example, inform the accused that a lawyer might examine the indictment for legal sufficiency before submitting his or her client to interrogation or that a lawyer is likely to be considerably more skillful at negotiating a plea bargain and that such negotiations may be most fruitful if initiated prior to any interrogation. Rather, the warnings do not even go so far as to explain to the accused the nature of the charges pending against him — advice that a court would insist upon before allowing a defendant to enter a guilty plea with or without the presence of an attorney, see Henderson v. Morgan, 426 U.S. 637 (1976). Without defining precisely the nature of the inquiry required to establish a valid waiver of the Sixth Amendment right to counsel, it must be conceded that at least minimal advice is necessary — the accused must be told of the "dangers and disadvantages of self-representation." Yet, once it is conceded that certain advice is required and that after indictment the adversary relationship between the state and the accused has solidified, it inescapably follows *309 that a prosecutor may not conduct private interviews with a charged defendant. As at least one Court of Appeals has recognized, there are ethical constraints that prevent a prosecutor from giving legal advice to an uncounseled adversary.[6] Thus, neither the prosecutor nor his or her agents can ethically provide the unrepresented defendant with the kind of advice that should precede an evidence-gathering interview after formal proceedings have been commenced. Indeed, in my opinion even the Miranda warnings themselves are a species of legal advice that is improper when given by the prosecutor after indictment. Moreover, there are good reasons why such advice is deemed unethical, reasons that extend to the custodial, postindictment setting with unequaled strength. First, the offering of legal advice may lead an accused to underestimate the prosecuting authorities' true adversary posture. For an incarcerated defendant — in this case, a 17-year-old who had been in custody for 44 hours at the time he was told of the *310 indictment — the assistance of someone to explain why he is being held, the nature of the charges against him, and the extent of his legal rights, may be of such importance as to overcome what is perhaps obvious to most, that the prosecutor is a foe and not a friend. Second, the adversary posture of the parties, which is not fully solidified until formal charges are brought, will inevitably tend to color the advice offered. As hard as a prosecutor might try, I doubt that it is possible for one to wear the hat of an effective adviser to a criminal defendant while at the same time wearing the hat of a law enforcement authority. Finally, regardless of whether or not the accused actually understands the legal and factual issues involved and the state's role as an adversary party, advice offered by a lawyer (or his or her agents) with such an evident conflict of interest cannot help but create a public perception of unfairness and unethical conduct. And as we held earlier this Term, "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160 (1988). This interest is a factor that may be considered in deciding whether to override a defendant's waiver of his or her Sixth Amendment right to conflict-free representation, see ibid., and likewise, should be considered in determining whether a waiver based on advice offered by the criminal defendant's adversary is ever appropriate.[7] In sum, without a careful discussion of the pitfalls of proceeding without counsel, the Sixth Amendment right cannot properly be waived. An adversary party, moreover, cannot adequately provide such advice. As a result, once the right to counsel attaches and the adversary relationship between *311 the state and the accused solidifies, a prosecutor cannot conduct a private interview with an accused party without "dilut[ing] the protection afforded by the right to counsel," Maine v. Moulton, 474 U.S. 159, 171 (1985). Although this ground alone is reason enough to never permit such private interviews, the rule also presents the added virtue of drawing a clear and easily identifiable line at the point between the investigatory and adversary stages of a criminal proceeding. Such clarity in definition of constitutional rules that govern criminal proceedings is important to the law enforcement profession as well as to the private citizen. See Arizona v. Roberson, 486 U.S. 675 (1988). It is true, of course, that the interest in effective law enforcement would benefit from an opportunity to engage in incommunicado questioning of defendants who, for reasons beyond their control, have not been able to receive the legal advice from counsel to which they are constitutionally entitled. But the Court's singleminded concentration on that interest might also lead to the toleration of similar practices at any stage of the trial. I think it clear that such private communications are intolerable not simply during trial, but at any point after adversary proceedings have commenced. I therefore respectfully dissent.

The Court should not condone unethical forms of trial preparation by prosecutors or their investigators. In civil litigation it is improper for a lawyer to communicate with his or her adversary's client without either notice to opposing counsel or the permission of the court.[1] An attempt to obtain evidence for use at trial by going behind the back of one's adversary would be not only a serious breach of professional ethics but also a manifestly unfair form of trial practice. In the criminal context, the same ethical rules apply and, in my opinion, notions of fairness that are at least as demanding should also be enforced. After a jury has been empaneled and a criminal trial is in progress, it would obviously be improper for the prosecutor to conduct a private interview with the defendant for the purpose *302 of obtaining evidence to be used against him at trial. By "private interview" I mean, of course, an interview initiated by the prosecutor, or his or her agents, without notice to the defendant's lawyer and without the permission of the court. Even if such an interview were to be commenced by giving the defendant the five items of legal advice that are mandated by Miranda, see ante, at 288, n. 1, I have no doubt that this Court would promptly and unanimously condemn such a shabby practice. As our holding in suggests, such a practice would not simply constitute a serious ethical violation, but would rise to the level of an impairment of the Sixth Amendment right to counsel.[2] *303 The question that this case raises, therefore, is at what point in the adversary process does it become impermissible for the prosecutor, or his or her agents, to conduct such private interviews with the opposing party? Several alternatives are conceivable: when the trial commences, when the defendant has actually met and accepted representation by his or her appointed counsel, when counsel is appointed, or when the adversary process commences. In my opinion, the Sixth Amendment right to counsel demands that a firm and unequivocal line be drawn at the point at which adversary proceedings commence. In prior cases this Court has used strong language to emphasize the significance of the formal commencement of adversary proceedings. Such language has been employed to explain decisions denying the defendant the benefit of the protection of the Sixth Amendment in preindictment settings, but an evenhanded interpretation of the Amendment would support the view that additional protection should automatically attach the moment the formal proceedings *304 begin. One such example is in which the Court concluded that the general rule requiring the presence of counsel at pretrial, lineup identifications, see United ; should not extend to protect custodial defendants not yet formally charged. Justice Stewart's plurality opinion explained the significance of the formal charge: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. -71; ; (Douglas, J., concurring)." -690 Similarly, in United we relied upon the significance of the absence of a formal charge in concluding that the Sixth Amendment does not require the appointment of counsel for indigent prison inmates confined in administrative detention while authorities investigate their possible involvement in criminal activity. Again the Court noted that "given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial *305 criminal proceedings `is far from a mere formalism.'" Most recently, in the Court upheld a waiver of the right to counsel in a pretrial context even though the waiver "would not be valid" if the same situation had arisen after indictment, see ante, at 296-297, n. 9. In the Moran opinion, the Court explained: "It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches. United ; See Brewer v. -401. And we readily agree that once the right has attached, it follows that the police may not interfere with the efforts of a defendant's attorney to act as a `"medium" between [the suspect] and the State' during the interrogation. ; see Brewer v. The difficulty for respondent is that the interrogation sessions that yielded the inculpatory statements took place before the initiation of `adversary judicial proceedings.' United" Today, however, in reaching a decision similarly favorable to the interest in law enforcement unfettered by process concerns, the Court backs away from the significance previously attributed to the initiation of formal proceedings. In the majority's view, the purported waiver of counsel in this case is properly equated with that of an unindicted suspect. Yet, as recognized in Kirby, and Moran, important differences *306 separate the two.[3] The return of an indictment, or like instrument, substantially alters the relationship between the state and the accused. Only after a formal accusation has "the government committed itself to prosecute, and only then [have] the adverse positions of government and defendant. solidified." Kirby, Moreover, the return of an indictment also presumably signals the government's conclusion that it has sufficient evidence to establish a prima facie case. As a result, any further interrogation can only be designed to buttress the government's case; authorities are no longer simply attempting " `to solve a crime.' " United ; see also Given the significance of the initiation of formal proceedings and the concomitant shift in the relationship between the state and the accused, I think it quite wrong to suggest that Miranda warnings — or for that *307 matter, any warnings offered by an adverse party — provide a sufficient basis for permitting the undoubtedly prejudicial — and, in my view, unfair — practice of permitting trained law enforcement personnel and prosecuting attorneys to communicate with as-of-yet unrepresented criminal defendants. It is well settled that there is a strong presumption against waiver of Sixth Amendment protections, see ; Von ; and that a waiver may only be accepted if made with full awareness of "the dangers and disadvantages of self-representation," ; see also Warnings offered by an opposing party, whether detailed or cursory, simply cannot satisfy this high standard. The majority premises its conclusion that Miranda warnings lay a sufficient basis for accepting a waiver of the right to counsel on the assumption that those warnings make clear to an accused "what a lawyer could `do for him' during the postindictment questioning: namely, advise [him] to refrain from making any [incriminating] statements." Ante, at 294[4] Yet, this is surely a gross understatement of the disadvantage of proceeding without a lawyer and *308 an understatement of what a defendant must understand to make a knowing waiver.[5] The Miranda warnings do not, for example, inform the accused that a lawyer might examine the indictment for legal sufficiency before submitting his or her client to interrogation or that a lawyer is likely to be considerably more skillful at negotiating a plea bargain and that such negotiations may be most fruitful if initiated prior to any interrogation. Rather, the warnings do not even go so far as to explain to the accused the nature of the charges pending against him — advice that a court would insist upon before allowing a defendant to enter a guilty plea with or without the presence of an attorney, see Without defining precisely the nature of the inquiry required to establish a valid waiver of the Sixth Amendment right to counsel, it must be conceded that at least minimal advice is necessary — the accused must be told of the "dangers and disadvantages of self-representation." Yet, once it is conceded that certain advice is required and that after indictment the adversary relationship between the state and the accused has solidified, it inescapably follows *309 that a prosecutor may not conduct private interviews with a charged defendant. As at least one Court of Appeals has recognized, there are ethical constraints that prevent a prosecutor from giving legal advice to an uncounseled adversary.[6] Thus, neither the prosecutor nor his or her agents can ethically provide the unrepresented defendant with the kind of advice that should precede an evidence-gathering interview after formal proceedings have been commenced. Indeed, in my opinion even the Miranda warnings themselves are a species of legal advice that is improper when given by the prosecutor after indictment. Moreover, there are good reasons why such advice is deemed unethical, reasons that extend to the custodial, postindictment setting with unequaled strength. First, the offering of legal advice may lead an accused to underestimate the prosecuting authorities' true adversary posture. For an incarcerated defendant — in this case, a 17-year-old who had been in custody for 44 hours at the time he was told of the *310 indictment — the assistance of someone to explain why he is being held, the nature of the charges against him, and the extent of his legal rights, may be of such importance as to overcome what is perhaps obvious to most, that the prosecutor is a foe and not a friend. Second, the adversary posture of the parties, which is not fully solidified until formal charges are brought, will inevitably tend to color the advice offered. As hard as a prosecutor might try, I doubt that it is possible for one to wear the hat of an effective adviser to a criminal defendant while at the same time wearing the hat of a law enforcement authority. Finally, regardless of whether or not the accused actually understands the legal and factual issues involved and the state's role as an adversary party, advice offered by a lawyer (or his or her agents) with such an evident conflict of interest cannot help but create a public perception of unfairness and unethical conduct. And as we held earlier this Term, "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." This interest is a factor that may be considered in deciding whether to override a defendant's waiver of his or her Sixth Amendment right to conflict-free representation, see ibid., and likewise, should be considered in determining whether a waiver based on advice offered by the criminal defendant's adversary is ever appropriate.[7] In sum, without a careful discussion of the pitfalls of proceeding without counsel, the Sixth Amendment right cannot properly be waived. An adversary party, moreover, cannot adequately provide such advice. As a result, once the right to counsel attaches and the adversary relationship between *311 the state and the accused solidifies, a prosecutor cannot conduct a private interview with an accused party without "dilut[ing] the protection afforded by the right to counsel," Although this ground alone is reason enough to never permit such private interviews, the rule also presents the added virtue of drawing a clear and easily identifiable line at the point between the investigatory and adversary stages of a criminal proceeding. Such clarity in definition of constitutional rules that govern criminal proceedings is important to the law enforcement profession as well as to the private citizen. See It is true, of course, that the interest in effective law enforcement would benefit from an opportunity to engage in incommunicado questioning of defendants who, for reasons beyond their control, have not been able to receive the legal advice from counsel to which they are constitutionally entitled. But the Court's singleminded concentration on that interest might also lead to the toleration of similar practices at any stage of the trial. I think it clear that such private communications are intolerable not simply during trial, but at any point after adversary proceedings have commenced. I therefore respectfully dissent.

Justice Kennedy

dissenting

Lewis v. United States

https://www.courtlistener.com/opinion/118183/lewis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118183/

1997-040

As the majority recognizes, the touchstone for interpreting the Assimilative Crimes Act (ACA) is the intent of Congress. Ante, at 166. One of Congress' purposes in enacting the ACA was to fill gaps in federal criminal law. Ante, at 160. The majority fails to weigh, however, a second, countervailing policy behind the ACA: the value of federalism. The intent of Congress was to preserve state law *181 except where it is "displaced by specific laws enacted by Congress." Franklin v. United States, 216 U.S. 559, 568 (1910). In other words, the ACA embodies Congress' "policy of general conformity to local law." United States v. Sharpnack, 355 U.S. 286, 289 (1958). The majority quotes these passages with approval, ante, at 160, yet ignores the principles of federalism upon which they rest. A central tenet of federalism is concurrent jurisdiction over many subjects. See McCulloch v. Maryland, 4 Wheat. 316, 425, 435 (1819). One result of concurrent jurisdiction is that, outside federal enclaves, citizens can be subject to the criminal laws of both state and federal sovereigns for the same act or course of conduct. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985). The ACA seeks to mirror the results of concurrent jurisdiction in enclaves where, but for its provisions, state laws would be suspended in their entirety. Congress chose this means to recognize and respect the power of both sovereigns. We should implement this principle by assimilating state law except where Congress has manifested a contrary intention in "specific [federal] laws." Franklin, supra, at 568. But see ante, at 163 (suggesting that persons within federal enclaves should not be "randomly subject" to state as well as federal law, even though both sovereigns regulate those outside enclaves). The majority recognizes that assimilation is not barred simply because the conduct at issue could be punished under a federal statute. It is correct, then, to assume that assimilation depends on whether Congress has proscribed the same offense. Ante, at 161-162. Yet in trying to define the same offense, the majority asks whether assimilation would interfere with a federal policy, rewrite a federal offense, or intrude upon a field occupied by the Federal Government. Ante, at 164-165. The majority's standards are a roundabout way to ask whether specific federal laws conflict with state laws. The standards take too little note of the value of federalism and the concomitant presumption in favor of *182 assimilation. And for many concrete cases, they are too vague to be of help. A more serious problem with the majority's approach, however, is that it undervalues the best indicia of congressional intent: the words of the criminal statutes in question and the factual elements they define. There is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law. See Blockburger v. United States, 284 U.S. 299 (1932); see also Missouri v. Hunter, 459 U.S. 359, 366-367 (1983) (Blockburger is a rule for divining congressional intent). Under Blockburger, we examine whether "[e]ach of the offenses created requires proof of a different element." 284 U.S., at 304. In other words, does "each provision requir[e] proof of a fact which the other does not"? Ibid. The same-elements test turns on the texts of the statutes in question, the clearest and most certain indicators of the will of Congress. The test is straightforward, and courts and Congress are already familiar with its dynamic. Following Blockburger, a same-elements approach under the ACA would respect federalism by allowing a broad scope for assimilation of state law. The majority rejects this approach, however, because federal and state statutes may have trivial differences in wording or may differ in jurisdictional elements. Ante, at 163, 165. It would be simpler and more faithful to federalism to use a same-elements inquiry as the starting point for the ACA analysis. Courts could use this standard and still accommodate the majority's concerns. Under this view, we would look beyond slight differences in wording and jurisdictional elements to discern whether, as a practical matter, the elements of the two crimes are the same. The majority frets that a small difference in the definitions of purses in federal and state purse-snatching laws would by itself permit assimilation. Ante, at 163. But a slight difference in definition need not by itself allow assimilation. See Amar & Marcus, *183 Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 38-44 (1995) (advocating a similar approach for double jeopardy claims involving combinations of federal and state offenses). The majority also wonders whether one could assimilate state laws forbidding robbery of state-chartered banks because a federal bank-robbery law did not require a state charter. Ante, at 163. But again, a jurisdictional element need not by itself allow assimilation, if all substantive elements of the offenses are identical. Because the purposes of the ACA and double jeopardy law differ, some other adjustments to Blockburger may be necessary. For instance, Blockburger treats greater and lesser included offenses as the same to protect the finality of a single prosecution, but finality is not the purpose of the ACA. Congress chooses to allow greater and lesser included offenses to coexist at the federal level, though a particular offender cannot be convicted of both. So too the existence of a lesser included federal offense does not prevent the assimilation of a greater state offense under the ACA, or vice versa. See ante, at 171 (citing cases finding federal assault statute does not prevent assimilation of state child-abuse laws). Another way in which the ACA differs from double jeopardy law is compelled by our own precedent interpreting the ACA. See Williams v. United States, 327 U.S. 711 (1946). Congress sometimes adverts to a specific element of an offense and sets it at a level different from the level set by state law. When the federal and state offenses have otherwise identical elements, assimilation is not proper. In the Williams case, for example, a state statutory-rape law set the age of majority at 18. Id., at 716. Congress had enacted a federal carnal-knowledge statute, setting the age of majority at 16. Id., at 714, n. 6. Once Congress had adverted to and set the age of majority, state law could not be used to rewrite and broaden this particular element. See id., at 717-718, 724-725. Because Congress had manifested *184 a clear intent to the contrary, assimilation was improper. The same would be true if a state grand-larceny law required a theft of at least $200, while a federal grand-larceny law required a theft of $250 or more. Congress could have defined first-degree murder to include the killing of children younger than 3, even though state law set the requisite age at 12. Had Congress done so, Williams would apply and assimilation of state law would be improper if all other elements were the same. Here, on the other hand, Congress has not taken a victim's age into account at all in defining first-degree murder. The state offense includes a substantive age element missing from the federal statute, so the two do not share the same elements and assimilation is proper. The majority's analysis is more obscure and leads it to an incorrect conclusion. For these reasons, and with all respect, I dissent.

As the majority recognizes, the touchstone for interpreting the Assimilative Crimes Act (ACA) is the intent of Congress. Ante, at 166. One of Congress' purposes in enacting the ACA was to fill gaps in federal criminal law. Ante, at 160. The majority fails to weigh, however, a second, countervailing policy behind the ACA: the value of federalism. The intent of Congress was to preserve state law *181 except where it is "displaced by specific laws enacted by Congress." In other words, the ACA embodies Congress' "policy of general conformity to local law." United The majority quotes these passages with approval, ante, at 160, yet ignores the principles of federalism upon which they rest. A central tenet of federalism is concurrent jurisdiction over many subjects. See One result of concurrent jurisdiction is that, outside federal enclaves, citizens can be subject to the criminal laws of both state and federal sovereigns for the same act or course of conduct. See The ACA seeks to mirror the results of concurrent jurisdiction in enclaves where, but for its provisions, state laws would be suspended in their entirety. Congress chose this means to recognize and respect the power of both sovereigns. We should implement this principle by assimilating state law except where Congress has manifested a contrary intention in "specific [federal] laws." Franklin, at But see ante, at 163 (suggesting that persons within federal enclaves should not be "randomly subject" to state as well as federal law, even though both sovereigns regulate those outside enclaves). The majority recognizes that assimilation is not barred simply because the conduct at issue could be punished under a federal statute. It is correct, then, to assume that assimilation depends on whether Congress has proscribed the same offense. Ante, at 161-162. Yet in trying to define the same offense, the majority asks whether assimilation would interfere with a federal policy, rewrite a federal offense, or intrude upon a field occupied by the Federal Government. Ante, at 164-165. The majority's standards are a roundabout way to ask whether specific federal laws conflict with state laws. The standards take too little note of the value of federalism and the concomitant presumption in favor of *182 assimilation. And for many concrete cases, they are too vague to be of help. A more serious problem with the majority's approach, however, is that it undervalues the best indicia of congressional intent: the words of the criminal statutes in question and the factual elements they define. There is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law. See ; see also Under Blockburger, we examine whether "[e]ach of the offenses created requires proof of a different element." In other words, does "each provision requir[e] proof of a fact which the other does not"? The same-elements test turns on the texts of the statutes in question, the clearest and most certain indicators of the will of Congress. The test is straightforward, and courts and Congress are already familiar with its dynamic. Following Blockburger, a same-elements approach under the ACA would respect federalism by allowing a broad scope for assimilation of state law. The majority rejects this approach, however, because federal and state statutes may have trivial differences in wording or may differ in jurisdictional elements. Ante, at 163, 165. It would be simpler and more faithful to federalism to use a same-elements inquiry as the starting point for the ACA analysis. Courts could use this standard and still accommodate the majority's concerns. Under this view, we would look beyond slight differences in wording and jurisdictional elements to discern whether, as a practical matter, the elements of the two crimes are the same. The majority frets that a small difference in the definitions of purses in federal and state purse-snatching laws would by itself permit assimilation. Ante, at 163. But a slight difference in definition need not by itself allow assimilation. See Amar & Marcus, *183 Double Jeopardy Law After Rodney King, The majority also wonders whether one could assimilate state laws forbidding robbery of state-chartered banks because a federal bank-robbery law did not require a state charter. Ante, at 163. But again, a jurisdictional element need not by itself allow assimilation, if all substantive elements of the offenses are identical. Because the purposes of the ACA and double jeopardy law differ, some other adjustments to Blockburger may be necessary. For instance, Blockburger treats greater and lesser included offenses as the same to protect the finality of a single prosecution, but finality is not the purpose of the ACA. Congress chooses to allow greater and lesser included offenses to coexist at the federal level, though a particular offender cannot be convicted of both. So too the existence of a lesser included federal offense does not prevent the assimilation of a greater state offense under the ACA, or vice versa. See ante, at 171 (citing cases finding federal assault statute does not prevent assimilation of state child-abuse laws). Another way in which the ACA differs from double jeopardy law is compelled by our own precedent interpreting the ACA. See Congress sometimes adverts to a specific element of an offense and sets it at a level different from the level set by state law. When the federal and state offenses have otherwise identical elements, assimilation is not proper. In the Williams case, for example, a state statutory-rape law set the age of majority at 18. Congress had enacted a federal carnal-knowledge statute, setting the age of majority at 16. Once Congress had adverted to and set the age of majority, state law could not be used to rewrite and broaden this particular element. See Because Congress had manifested *184 a clear intent to the contrary, assimilation was improper. The same would be true if a state grand-larceny law required a theft of at least $200, while a federal grand-larceny law required a theft of $250 or more. Congress could have defined first-degree murder to include the killing of children younger than 3, even though state law set the requisite age at 12. Had Congress done so, Williams would apply and assimilation of state law would be improper if all other elements were the same. Here, on the other hand, Congress has not taken a victim's age into account at all in defining first-degree murder. The state offense includes a substantive age element missing from the federal statute, so the two do not share the same elements and assimilation is proper. The majority's analysis is more obscure and leads it to an incorrect conclusion. For these reasons, and with all respect, I dissent.

Justice Marshall

concurring

PruneYard Shopping Center v. Robins

https://www.courtlistener.com/opinion/110292/pruneyard-shopping-center-v-robins/

https://www.courtlistener.com/api/rest/v3/clusters/110292/

1979-107

I join the opinion of the Court, but write separately to make a few additional points. I In Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that because the shopping center "serves as the community business block" and is open to the general public, "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises." Id., at 319. The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public and that reasonable restrictions on the exercise of communicative activity would be permitted. "[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue." Id., at 324. The Court in Logan Valley emphasized that if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because "[t]he large-scale movement of this country's population from the cities to the suburbs has been accompanied *90 by the advent of the suburban shopping center," a contrary decision would have "substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies." Ibid. In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed. In Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." 407 U.S., at 567. And in Hudgens v. NLRB, 424 U.S. 507 (1976), the Court concluded that Lloyd had in fact overruled Logan Valley. I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had in turn made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises.[1]*91 Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that "the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems . . . from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech." Hudgens v. NLRB, supra, at 542 (dissenting opinion). II In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State "[C]onstitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights." 23 Cal. 3d 899, 910, 592 P.2d 341, 347 (1979). Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court's decision, which is a part of a very healthy trend of affording state constitutional provision a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional "taking" or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan *92 Valley's First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the pre-existing state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common-law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants' claim has no merit. Earlier this Term, in Martinez v. California, 444 U.S. 277 (1980), the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of "property." We responded that even if a pre-existing state-law remedy "is a species of `property' protected by the Due Process Clause . . . , it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Id., at 281-282. Similarly, in the context of a claim that a guest statute impermissibly abrogated common-law rights of tort, the Court observed that the Due Process Clause does not forbid the "creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." Silver v. Silver, 280 U.S. 117, 122 (1929). And in Munn v. Illinois, 94 U.S. 113 (1877), the Court upheld a statute limiting the permissible rate for the warehousing of grain. "A person has no property, no vested interest, in any rule of the common law. . . . Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will . . . of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the *93 common law as they are developed, and to adapt it to the changes of time and circumstances." Id., at 134. See also Second Employers' Liability Cases, 223 U.S. 1, 50 (1912); Crowell v. Benson, 285 U.S. 22, 41 (1932). Appellants' claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court's finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common-law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result. On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.[2] Quite serious constitutional questions might be raised if a legislature attempted to abolish certain *94 categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.[3] That "core" has not been approached in this case. The California Supreme Court's decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants' normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. Stanley v. Georgia, 394 U.S. 557 (1969). No rights of privacy are implicated. In these circumstances *95 there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court. I join the opinion of the Court. I join MR. JUSTICE POWELL'S concurring opinion but with these additional remarks. The question here is whether the Federal Constitution forbids a State to implement its own free-speech guarantee by requiring owners of shopping centers to permit entry on their property for the purpose of communicating with the public about subjects having no connection with the shopping centers' business. The Supreme Court of California held that in the circumstances of this case the federally protected property rights of appellants were not infringed. The state court recognized, however, that reasonable time and place limitations could be imposed and that it was dealing with the public or common areas in large shopping center and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner. On the facts before it, "[a] handful of additional orderly persons soliciting signatures and distributing handbills . . . would not markedly dilute defendant's property rights." 23 Cal. 3d 899, 911, 592 P.2d 341, 347-348 (1979). I agree that on the record before us there was not an unconstitutional infringement of appellants' property rights. But it bears pointing out that the Federal Constitution does not require that a shopping center permit distributions or solicitations on its property. Indeed, Hudgens v. NLRB, 424 U.S. 507 (1976), and Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), hold that the First and Fourteenth Amendments do not prevent the property owner from excluding those who would demonstrate or communicate on his property. Insofar as the Federal Constitution is concerned, therefore, a State may *96 decline to construe its own constitution so as to limit the property rights of the shopping center owner. The Court also affirms the California Supreme Court's implicit holding that appellants' own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with MR. JUSTICE POWELL that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social-action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with Part V of the Court's opinion. MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE joins, concurring in part and in the judgment. Although I join the judgment, I do not agree with all of the reasoning in Part V of the Court's opinion. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all "shopping centers." This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that "do not amount to a taking without *97 just compensation or contravene any other federal constitutional provision." Ante, at 81. I Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." Ante, at 85. I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court's opinion is unnecessarily and perhaps confusingly broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions. The State may not compel a person to affirm a belief he does not hold. See Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have changed had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows rather than on their automobiles. In that case, we said that "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." 430 U.S., at 714. This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use. . . ." Ante, at 87. A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be *98 an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Wooley v. Maynard, supra, at 715.[1] As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante, at 87, 87-88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973) (plurality opinion). Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." Wooley v. Maynard, supra, at 714; see Miami Herald Publishing Co. v. Tornillo, supra, at 257. As such, it is tantamount to compelled affirmation and, thus, presumptively unconstitutional.[2] *99 The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante, at 87, cannot restore his "right to refrain from speaking at all." Wooley v. Maynard, supra, at 714. A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributers from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech *100 in such situations may virtually compel the proprietor to respond. The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. See Abood v. Detroit Board of Education, 431 U.S. 209, 213, 241 (1977). To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." Ibid.[3] Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner.[4] II One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from *101 speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above. On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the Prune Yard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante, at 77, 83. Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." App. to Juris. Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood. Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them. Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case.

I join the opinion of the Court, but write separately to make a few additional points. I In Food this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that because the shopping center "serves as the community business block" and is open to the general public, "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises." The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public and that reasonable restrictions on the exercise of communicative activity would be permitted. "[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue." The Court in Logan Valley emphasized that if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because "[t]he large-scale movement of this country's population from the cities to the suburbs has been accompanied *90 by the advent of the suburban shopping center," a contrary decision would have "substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies." In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed. In Lloyd the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." And in the Court concluded that Lloyd had in fact overruled Logan Valley. I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had in turn made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises.[1]*91 Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that "the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech." II In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State "[C]onstitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights." Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court's decision, which is a part of a very healthy trend of affording state constitutional provision a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan, State Constitutions and the Protection of Individual Rights, Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional "taking" or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan *92 Valley's First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the pre-existing state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common-law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants' claim has no merit. Earlier this Term, in the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of "property." We responded that even if a pre-existing state-law remedy "is a species of `property' protected by the Due Process Clause it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Similarly, in the context of a claim that a guest statute impermissibly abrogated common-law rights of tort, the Court observed that the Due Process Clause does not forbid the "creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." And in the Court upheld a statute limiting the permissible rate for the warehousing of grain. "A person has no property, no vested interest, in any rule of the common law. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the *93 common law as they are developed, and to adapt it to the changes of time and circumstances." See also Second Employers' Liability Cases, ; Appellants' claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court's finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of when common-law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result. On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.[2] Quite serious constitutional questions might be raised if a legislature attempted to abolish certain *94 categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.[3] That "core" has not been approached in this case. The California Supreme Court's decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants' normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. No rights of privacy are implicated. In these circumstances *95 there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court. I join the opinion of the Court. I join MR. JUSTICE POWELL'S concurring opinion but with these additional remarks. The question here is whether the Federal Constitution forbids a State to implement its own free-speech guarantee by requiring owners of shopping centers to permit entry on their property for the purpose of communicating with the public about subjects having no connection with the shopping centers' business. The Supreme Court of California held that in the circumstances of this case the federally protected property rights of appellants were not infringed. The state court recognized, however, that reasonable time and place limitations could be imposed and that it was dealing with the public or common areas in large shopping center and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner. On the facts before it, "[a] handful of additional orderly persons soliciting signatures and distributing handbills would not markedly dilute defendant's property rights." -348 I agree that on the record before us there was not an unconstitutional infringement of appellants' property rights. But it bears pointing out that the Federal Constitution does not require that a shopping center permit distributions or solicitations on its property. Indeed, and Lloyd hold that the First and Fourteenth Amendments do not prevent the property owner from excluding those who would demonstrate or communicate on his property. Insofar as the Federal Constitution is concerned, therefore, a State may *96 decline to construe its own constitution so as to limit the property rights of the shopping center owner. The Court also affirms the California Supreme Court's implicit holding that appellants' own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with MR. JUSTICE POWELL that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social-action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with Part V of the Court's opinion. MR. JUSTICE POWELL, with whom MR. JUSTICE WHITE joins, concurring in part and in the judgment. Although I join the judgment, I do not agree with all of the reasoning in Part V of the Court's opinion. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all "shopping centers." This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that "do not amount to a taking without *97 just compensation or contravene any other federal constitutional provision." Ante, at 81. I Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." Ante, at 85. I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court's opinion is unnecessarily and perhaps confusingly broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions. The State may not compel a person to affirm a belief he does not hold. See ; West Virginia State Board of Whatever the full sweep of this principle, I do not believe that the result in would have changed had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows rather than on their automobiles. In that case, we said that "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use." Ante, at 87. A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be *98 an instrument for fostering public adherence to an ideological point of view he finds unacceptable."[1] As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante, at 87, 87-88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Miami Herald Publishing 8 U.S. 2 See also Columbia Broadcasting System, 2 U.S. 94, Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." ; see Miami Herald Publishing As such, it is tantamount to compelled affirmation and, thus, presumptively unconstitutional.[2] *99 The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante, at 87, cannot restore his "right to refrain from speaking at all." A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributers from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech *100 in such situations may virtually compel the proprietor to respond. The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. See 213, 2 To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." [3] Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner.[4] II One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from *101 speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above. On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the Prune Yard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante, at 77, 83. Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." App. to Juris. Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood. Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them. Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case.

Justice Blackmun

majority

Huddleston v. United States

https://www.courtlistener.com/opinion/108996/huddleston-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108996/

1973-083

This case presents the issue whether 18 U.S. C. § 922 (a) (6),[1] declaring that it is unlawful knowingly to make a false statement "in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer," covers the redemption of a firearm from a pawnshop. I On October 6, 1971, petitioner, William C. Huddleston, Jr., pawned his wife's Winchester 30-30-caliber rifle for $25 at a pawnshop in Oxnard, California. On the following October 15 and on December 28, he pawned at *816 the same shop two other firearms, a Russian 7.62-caliber rifle and a Remington .22-caliber rifle, belonging to his wife. For these he received loans of $10 and $15, respectively. The owner of the pawnshop was a federally licensed firearms dealer. Some weeks later, on February 1, 1972, and on March 10, Huddleston redeemed the weapons. In connection with each of the redemptions, the pawnbroker required petitioner to complete Treasury Form 4473, entitled "Firearms Transaction Record." This is a form used in the enforcement of the gun control provision of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 225, as amended by the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213, of which the above-cited 18 U.S. C. § 922 (a) (6) is a part. Question 8b of the form is: "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter—a yes answer is necessary if the judge could have given a sentence of more than one year.)" The question is derived from the statutory prohibition against a dealer's selling or otherwise disposing of a firearm to any person who "has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year." 18 U.S. C. § 922 (d) (1).[2] Petitioner answered "no" to Question 8b on each of the three *817 Forms 4473. He then affixed his signature to each form's certification that the answers were true and correct, that he understood that a person who answers any of the questions in the affirmative is prohibited by federal law from "purchasing and/or possessing a firearm," and that he also understood that the making of any false statement with respect to the transaction is a crime punishable as a felony. In fact, Huddleston, six years earlier, had been convicted in a California state court for writing checks without sufficient funds, an offense punishable under California law by a maximum term of 14 years.[3] This fact, if revealed to the pawnshop proprietor, would have precluded the proprietor from selling or otherwise disposing of any of the rifles to the petitioner because of the proscription in 18 U.S. C. § 922 (d) (1). Huddleston was charged in a three-count indictment with violating 18 U.S. C. §§ 922 (a) (6) and 924 (a).[4] He moved to dismiss the indictment, in part on the ground that § 922 (a) (6) was never intended to apply, and should not apply, to a pawnor's redemption of a weapon he had pawned. This motion was denied. Petitioner then pleaded not guilty and waived a jury trial. *818 The Government's evidence consisted primarily of the three Treasury Forms 4473 Huddleston had signed; the record of his earlier California felony conviction; and the pawnbroker's federal license. A Government agent also testified that petitioner, after being arrested and advised of his rights, made statements admitting that he had known, when filling out the forms, that he was a felon and that he had lied each time when he answered Question 8b in the negative. Huddleston testified in his own defense. He stated that he did not knowingly make a false statement; that he did not read the form and simply answered "no" upon prompting from the pawnbroker; and that he was unaware that his California conviction was punishable by a term exceeding one year.[5] The District Judge found the petitioner guilty on all counts. He sentenced Huddleston to three concurrent three-year terms. The sentences were suspended, however, except for 20 days to be served on weekends. The United States Court of Appeals for the Ninth Circuit, by a divided vote, affirmed the conviction. 472 F.2d 592 (1973). The dissenting judge agreed that the statute was constitutional as applied, but concluded that what Huddleston did was to "reacquire" the rifles, and that "reacquire" is not necessarily included within the statute's term "acquire." Id., at 593. We granted certiorari, 411 U.S. 930 (1973), to resolve an existing conflict among the circuits on the issue whether the *819 prohibition against making false statements in connection with the acquisition of a firearm covers a firearm's redemption from a pawnshop.[6] II Petitioner's assault on the statute under which he was convicted is two pronged. First, it is argued that both the statute's language and its legislative history indicate that Congress did not intend a pawnshop redemption of a firearm to be an "acquisition" covered by the statute. Second, it is said that even if Congress did intend a pawnshop redemption to be a covered "acquisition," the statute is so ambiguous that its construction is controlled by the maxim that ambiguity in a criminal statute is to be resolved in favor of the defendant. We turn first to the language and structure of the Act. Reduced to a minimum, § 922 (a) (6) relates to any false statement made "in connection with the acquisition . . . of any firearm" from a licensed dealer and intended or likely to deceive the dealer "with respect to any fact material to the lawfulness of the sale or other disposition of such firearm." Petitioner attaches great significance to the word "acquisition." He urges that it suggests only a sale-like transaction. Since Congress in § 922 (a) (6) did not use words of transfer or delivery, as it did in other sections of the Act, he argues that "acquisition" must have a narrower meaning than those terms. Moreover, since a pawn transaction is only a temporary bailment of personal property, with the pawnshop having merely a security interest in the pledged property, title or ownership is constant in the pawnor, and the pawnplus-redemption *820 transaction is no more than an interruption in the pawnor's possession. The pawnor simply repossesses his own property, and he does not "acquire" any new title or interest in the object pawned. At most, he "reacquires" the object, and reacquisition, as the dissenting judge in the Court of Appeals noted, is not necessarily included in the statutory term "acquisition." On its face, this argument might be said to have some force. A careful look at the statutory language and at complementary provisions of the Act, however, convinces us that the asserted ambiguity is contrived. Petitioner is mistaken in focusing solely on the term "acquisition" and in enshrouding it with an extra-statutory "legal title" or "ownership" analysis. The word "acquire" is defined to mean simply "to come into possession, control, or power of disposal of." Webster's New International Dictionary (3d ed., 1966, unabridged); United States v. Laisure, 460 F.2d 709, 712 n. 3 (CA5 1972). There is no intimation here that title or ownership would be necessary for possession, or control, or disposal power, and there is nothing else in the statute that justifies the imposition of that gloss. Moreover, a full reading of § 922 (a) (6) clearly demonstrates that the false statements that are prohibited are those made with respect to the lawfulness of the sale "or other disposition" of a firearm by a licensed dealer. The word "acquisition," therefore, cannot be considered apart from the phrase "sale or other disposition." As the Government suggests, and indeed as the petitioner implicitly reasoned at oral argument, Tr. of Oral Arg. 11, if the pawnbroker "sells" or "disposes" under § 922 (a) (6), the transferee necessarily "acquires." These words, as used in the statute, are correlatives. The focus of our inquiry, therefore, should be to determine whether a "sale or other disposition" of a firearm by a pawnbroker encompasses the redemption of the firearm by a pawnor. *821 Clearly, a redemption is not a "sale" for the simple reason that a sale has definite connotations of ownership and title. Some "other disposition" of a firearm, however, could easily encompass a pawnshop redemption. We believe that it does. It is the dealer who sells or disposes of the firearm. The statute defines the dealer to be: "(A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker." 18 U.S. C. § 921 (a) (11) (emphasis supplied). It defines a "pawnbroker" as "any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm or ammunition as security for the payment or repayment of money." 18 U.S. C. § 921 (a) (12) (emphasis supplied). These definitions surely suggest that a "sale or other disposition" of a firearm in a pawnshop is covered by the statute. This, of course, does not of itself resolve the question as to exactly what "other disposition" by a pawnbroker is included. It should be apparent, however, that if Congress had intended to include only a pawnbroker's default sales of pledged or pawned goods, or his wholesale and retail sales of nonpawned goods, and to exclude the redemption of pawned articles, then the explicit inclusion of the pawnbroker in the definition of "dealer" would serve no purpose, since part (A) of the definition, covering wholesale and retail sales, would otherwise reach all such sales. United States v. Rosen, 352 F. Supp. 727, 729 (Idaho 1973). At oral argument counsel suggested that the specific reference to a pawnbroker might have been intended to include "disposition" *822 by barter, swap, trade, or gift. Tr. of Oral Arg. 5-7. This interpretation strains belief. Trades or gifts are not peculiar to pawnbrokers. Wholesalers and retailers may indulge in such dispositions. There is nothing in the legislative history to indicate that this interpretation prompted the specific mention of a pawnbroker in part (C) of the definition. To the contrary, the committee reports indicate that part (C) "specifically provides that a pawnbroker dealing in firearms shall be considered a dealer." H. R. Rep. No. 1577, 90th Cong., 2d Sess., 11 (1968) (emphasis supplied). See also S. Rep. No. 1501, 90th Cong., 2d Sess., 30 (1968). We also cannot ignore the explicit reference to a firearm transaction "by way of pledge or pawn" in the statutory definition of "pawnbroker" in § 921 (a) (12). Had Congress' desire been to exempt a transaction of this kind, it would have artfully worded the definition so as to exclude it. We are equally impressed by Congress' failure to exempt redemptive transactions from the prohibitions of the Act when it so carefully carved out exceptions for a dealer "returning a firearm" and for an individual mailing a firearm to a dealer "for the sole purpose of repair or customizing." § 922 (a) (2) (A). Petitioner contends that a redemptive transaction is no different from the return of a gun left for repair. His argument is that the pawned weapon is simply "returned" to the individual who left it and represents a mere restoration to its original status. We believe, however, that it was not unreasonable for Congress to choose to view the pawn transaction as something more than the mere interruption in possession typical of repair. The fact that Congress thought it necessary specifically to exempt the repair transaction indicates that it otherwise would have been covered and, if this were so, clearly a pawn transaction likewise would be covered. *823 Other provisions of the Act also make it clear that the statute generally covers all transfers of firearms by dealers to recipients. Section 922 (a) (1) makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of "dealing" in firearms, or in the course of such business "to ship, transport, or receive any firearm." Section 922 (b) (1) makes it unlawful for a dealer "to sell or deliver" firearms of specified types to persons under 18 or 21 years of age. Section 922 (b) (2) makes it unlawful for a dealer to "sell or deliver" a weapon to a person in any State where "at the place of sale, delivery or other disposition," the transfer would violate local law. Section 922 (d) makes it unlawful for a dealer "to sell or otherwise dispose of" a firearm to a person under a felony indictment, a felon, a fugitive, a narcotic addict, or a mental defective. Section 923 (g) requires that each licensed dealer maintain "records of importation, production, shipment, receipt, sale, or other disposition, of firearms." In sum, the word "acquisition," as used in § 922 (a) (6), is not ambiguous, but clearly includes any person, by definition, who "come[s] into possession, control, or power of disposal" of a firearm. As noted above, "acquisition" and "sale or other disposition" are correlatives. It is reasonable to conclude that a pawnbroker might "dispose" of a firearm through a redemptive transaction. And because Congress explicitly included pawnbrokers in the Act, explicitly mentioned pledge and pawn transactions involving firearms, and clearly failed to include them among the statutory exceptions, we are not at liberty to tamper with the obvious reach of the statute in proscribing the conduct in which the petitioner engaged. *824 III The legislative history, too, supports this reading of the statute. This is apparent from the aims and purposes of the Act and from the method Congress adopted to achieve those objectives. When Congress enacted the provisions under which petitioner was convicted, it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. Pub. L. 90-351, § 1201, 82 Stat. 1236, as amended by Pub. L. 90-618, § 301 (a) (1), 82 Stat. 1236, 18 U.S. C. App. § 1201. Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S. Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping "firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§ 922 (a) (1) and 923 (a); he is required to keep records of "sale . . . or other disposition," § 923 (g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924. Section 922 (a) (6), the provision under which petitioner *825 was convicted, was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by dealers was a prime guarantee of the Act's effectiveness in keeping "these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow." 114 Cong. Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty. From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest. Thus, the conclusion we reached above with respect to the language and structure of the Act, that firearms redemptions in pawnshops are covered, is entirely consonant with the achievement of this congressional objective and method of enforcing the Act. Moreover, as was said in United States v. Bramblett, 348 U.S. 503, 507 (1955). "There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted" (footnotes omitted). Indeed, the committee reports indicate that the proscription under § 922 (d) on the sale or other disposition of a firearm to a felon "goes to all types of sales or dispositions— *826 over-the-counter as well as mail order."[7] S. Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). See S. Rep. No. 1501, 90th Cong., 2d Sess., 34 (1968). As far as the parties have informed us, and as far as our independent research has revealed, there is no discussion of the actual meaning of "acquisition" or of "sale or other disposition" in the legislative history. Previous legislation relating to the particular term "other disposition" sheds some light, however, and prudence calls on us to look to it in ascertaining the legislative purpose. United States v. Katz, 271 U.S. 354, 357 (1926). The term apparently had its origin in § 1 (k) of the National Firearms Act, Pub. L. 474, 48 Stat. 1236 (1934). That Act set certain conditions on the "transfer" of machine guns and other dangerous weapons. As defined by the Act, "transfer" meant "to sell, assign, pledge, lease, loan, give away, or otherwise dispose of." The term "otherwise dispose of" in that context was aimed at providing *827 maximum coverage. The interpretation we adopt here accomplishes the same objective.[8] There also can be no doubt of Congress' intention to deprive the juvenile, the mentally incompetent, the criminal, and the fugitive of the use of firearms. Senator Tydings stated: "Title IV, the concealed weapons amendment, is a very limited, stripped-down, bare-minimum gun-traffic control bill, primarily designed to reduce access to handguns for criminals, juveniles, and fugitives . . . . I can fairly say that this concealed weapons amendment does not significantly inconvenience hunters and sportsmen in any way. The people it does frustrate are the juveniles, felons, and fugitives who today can, with total anonymity and impunity, obtain guns by mail or by crossing into neighboring States with lax or no gun laws at all, regardless of the law of their own State." 114 Cong. Rec. 13647 (1968). *828 Congressman Celler, the House Manager, stated: "Mr. Chairman, none of us who support Federal firearms controls believe that any bill or any system of control can guarantee that society will be safe from firearms misuse. But we are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons." Id., at 21784. Congressman McCulloch, a senior member of the House Committee on the Judiciary, in referring specifically to § 922 (a) (6), stated, "[The bill] makes it unlawful . . . [f]or any person, in connection with obtaining a firearm or ammunition from a licensee, to make a false representation material to such acquisition." Id., at 21789.[9] Given these statements of congressional purpose, it would be unwarranted to except pawnshop redemptions *829 when, by virtue of the statutory language itself, such redemptions would be covered. Otherwise every evil Congress hoped to cure would continue unabated.[10] *830 IV Petitioner urges that the intention to include pawn redemptions is so ambiguous and uncertain that the statute should be narrowly construed in his favor. Reliance is placed upon the maxim that an "ambiguity *831 concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 (1971); United States v. Bass, 404 U.S. 336, 347 (1971). This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. United States v. Wiltberger, 5 Wheat. 76, 95 (1820); United States v. Bass, 404 U. S., at 348. The rule is also the product of an awareness that legislators and not the courts should define criminal activity. Zeal in forwarding these laudable policies, however, must not be permitted to shadow the understanding that "[s]ound rules of statutory interpretation exist to discover and not to direct the Congressional will." United States ex rel. Marcus v. Hess, 317 U.S. 537, 542 (1943). Although penal laws are to be construed strictly, they "ought not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur Co. v. United States, 2 Pet. 358, 367 (1829); United States v. Wiltberger, supra; United States v. Morris, 14 Pet. 464, 475 (1840); United States v. Lacher, 134 U.S. 624 (1890); United States v. Bramblett, 348 U. S., at 510; United States v. Bass, 404 U. S., at 351. We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner's conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that "an untruthful answer may subject you to criminal prosecution." The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a *832 term exceeding one year and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that "the making of any false oral or written statement . . . with respect to this transaction is a crime punishable as a felony." This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action. Our reading of the statute cannot be viewed as judicial usurpation of the legislative function. The statute's language reveals an unmistakable attempt to include pawnshop transactions, by pledge or pawn, among the transactions covered by the Act. And Congress unquestionably made it unlawful for dealers, including pawnbrokers, "to sell or otherwise dispose of any firearm" to a convicted felon, a juvenile, a drug addict, or a mental defective. § 922 (d). Under these circumstances we will not blindly incant the rule of lenity to "destroy the spirit and force of the law which the legislature intended to [and did] enact." American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293 (1907); United States v. Katz, 271 U. S., at 357.[11] *833 V The petitioner suggests, lastly, that the application of § 922 (a) (6) to a pawn redemption would raise constitutional questions of some moment, and that these would not arise if the statute were narrowly construed. We fail to see the presence of issues of that import. There was no taking of Huddleston's property without just compensation. The rifles, in fact, were not his but his wife's. Moreover, Congress has determined that a convicted felon may not lawfully obtain weapons of that kind. Nor were petitioner's false answers in any way coerced. United States v. Knox, 396 U.S. 77, 79 (1969); Bryson v. United States, 396 U.S. 64, 72 (1969). Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that §§ 922 (a) (6) and (d) (1), in contrast to 18 U.S. C. App. § 1202 (a) (1), see United States v. Bass, supra, were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, "on the theory that such transactions affect interstate commerce." 472 F.2d, at 593. See also United States v. Menna, 451 F.2d 982, 984 (CA9 1971). cert. denied, 405 U.S. 963 (1972), and United States v. O'Neill, 467 F.2d 1372, 1373-1374 (CA2 1972). We affirm the judgment of the Court of Appeals. It is so ordered. MR.

This case presents the issue whether 18 U.S. C. 922 (6),[1] declaring that it is unlawful knowingly to make a false statement "in connection with the acquisition of any firearm from a licensed dealer," covers the redemption of a firearm from a pawnshop. I On October 6, petitioner, William C. Huddleston, Jr., pawned his wife's Winchester 30-30-caliber rifle for $25 at a pawnshop in Oxnard, California. On the following October 15 and on December 28, he pawned at *816 the same shop two other firearms, a Russian 7.62-caliber rifle and a Remington22-caliber rifle, belonging to his wife. For these he received loans of $10 and $15, respectively. The owner of the pawnshop was a federally licensed firearms dealer. Some weeks later, on February 1, and on March 10, Huddleston redeemed the weapons. In connection with each of the redemptions, the pawnbroker required petitioner to complete Treasury Form 4473, entitled "Firearms Transaction Record." This is a form used in the enforcement of the gun control provision of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Stat. 225, as amended by the Gun Control Act of 1968, Stat. 1213, of which the above-cited 18 U.S. C. 922 (6) is a part. Question 8b of the form is: "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter—a yes answer is necessary if the judge could have given a sentence of more than one year.)" The question is derived from the statutory prohibition against a dealer's selling or otherwise disposing of a firearm to any person who "has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." 18 U.S. C. 922 (d) (1).[2] Petitioner answered "no" to Question 8b on each of the three *817 Forms 4473. He then affixed his signature to each form's certification that the answers were true and correct, that he understood that a person who answers any of the questions in the affirmative is prohibited by federal law from "purchasing and/or possessing a firearm," and that he also understood that the making of any false statement with respect to the transaction is a crime punishable as a felony. In fact, Huddleston, six years earlier, had been convicted in a California state court for writing checks without sufficient funds, an offense punishable under California law by a maximum term of 14 years.[3] This fact, if revealed to the pawnshop proprietor, would have precluded the proprietor from selling or otherwise disposing of any of the rifles to the petitioner because of the proscription in 18 U.S. C. 922 (d) (1). Huddleston was charged in a three-count indictment with violating 18 U.S. C. 922 (6) and 924[4] He moved to dismiss the indictment, in part on the ground that 922 (6) was never intended to apply, and should not apply, to a pawnor's redemption of a weapon he had pawned. This motion was denied. Petitioner then pleaded not guilty and waived a jury trial. *818 The Government's evidence consisted primarily of the three Treasury Forms 4473 Huddleston had signed; the record of his earlier California felony conviction; and the pawnbroker's federal license. A Government agent also testified that petitioner, after being arrested and advised of his rights, made statements admitting that he had known, when filling out the forms, that he was a felon and that he had lied each time when he answered Question 8b in the negative. Huddleston testified in his own defense. He stated that he did not knowingly make a false statement; that he did not read the form and simply answered "no" upon prompting from the pawnbroker; and that he was unaware that his California conviction was punishable by a term exceeding one year.[5] The District Judge found the petitioner guilty on all counts. He sentenced Huddleston to three concurrent three-year terms. The sentences were suspended, however, except for 20 days to be served on weekends. The United States Court of Appeals for the Ninth Circuit, by a divided vote, affirmed the conviction. The dissenting judge agreed that the statute was constitutional as applied, but concluded that what Huddleston did was to "reacquire" the rifles, and that "reacquire" is not necessarily included within the statute's term "acquire." We granted certiorari, to resolve an existing conflict among the circuits on the issue whether the *819 prohibition against making false statements in connection with the acquisition of a firearm covers a firearm's redemption from a pawnshop.[6] II Petitioner's assault on the statute under which he was convicted is two pronged. First, it is argued that both the statute's language and its legislative history indicate that Congress did not intend a pawnshop redemption of a firearm to be an "acquisition" covered by the statute. Second, it is said that even if Congress did intend a pawnshop redemption to be a covered "acquisition," the statute is so ambiguous that its construction is controlled by the maxim that ambiguity in a criminal statute is to be resolved in favor of the defendant. We turn first to the language and structure of the Act. Reduced to a minimum, 922 (6) relates to any false statement made "in connection with the acquisition of any firearm" from a licensed dealer and intended or likely to deceive the dealer "with respect to any fact material to the lawfulness of the sale or other disposition of such firearm." Petitioner attaches great significance to the word "acquisition." He urges that it suggests only a sale-like transaction. Since Congress in 922 (6) did not use words of transfer or delivery, as it did in other sections of the Act, he argues that "acquisition" must have a narrower meaning than those terms. Moreover, since a pawn transaction is only a temporary bailment of personal property, with the pawnshop having merely a security interest in the pledged property, title or ownership is constant in the pawnor, and the pawnplus-redemption *820 transaction is no more than an interruption in the pawnor's possession. The pawnor simply repossesses his own property, and he does not "acquire" any new title or interest in the object pawned. At most, he "reacquires" the object, and reacquisition, as the dissenting judge in the Court of Appeals noted, is not necessarily included in the statutory term "acquisition." On its face, this argument might be said to have some force. A careful look at the statutory language and at complementary provisions of the Act, however, convinces us that the asserted ambiguity is contrived. Petitioner is mistaken in focusing solely on the term "acquisition" and in enshrouding it with an extra-statutory "legal title" or "ownership" analysis. The word "acquire" is defined to mean simply "to come into possession, control, or power of disposal of." Webster's New International Dictionary (3d ed., 1966, unabridged); United There is no intimation here that title or ownership would be necessary for possession, or control, or disposal power, and there is nothing else in the statute that justifies the imposition of that gloss. Moreover, a full reading of 922 (6) clearly demonstrates that the false statements that are prohibited are those made with respect to the lawfulness of the sale "or other disposition" of a firearm by a licensed dealer. The word "acquisition," therefore, cannot be considered apart from the phrase "sale or other disposition." As the Government suggests, and indeed as the petitioner implicitly reasoned at oral argument, Tr. of Oral Arg. 11, if the pawnbroker "sells" or "disposes" under 922 (6), the transferee necessarily "acquires." These words, as used in the statute, are correlatives. The focus of our inquiry, therefore, should be to determine whether a "sale or other disposition" of a firearm by a pawnbroker encompasses the redemption of the firearm by a pawnor. *821 Clearly, a redemption is not a "sale" for the simple reason that a sale has definite connotations of ownership and title. Some "other disposition" of a firearm, however, could easily encompass a pawnshop redemption. We believe that it does. It is the dealer who sells or disposes of the firearm. The statute defines the dealer to be: "(A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker." 18 U.S. C. 921 (11) (emphasis supplied). It defines a "pawnbroker" as "any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm or ammunition as security for the payment or repayment of money." 18 U.S. C. 921 (12) (emphasis supplied). These definitions surely suggest that a "sale or other disposition" of a firearm in a pawnshop is covered by the statute. This, of course, does not of itself resolve the question as to exactly what "other disposition" by a pawnbroker is included. It should be apparent, however, that if Congress had intended to include only a pawnbroker's default sales of pledged or pawned goods, or his wholesale and retail sales of nonpawned goods, and to exclude the redemption of pawned articles, then the explicit inclusion of the pawnbroker in the definition of "dealer" would serve no purpose, since part (A) of the definition, covering wholesale and retail sales, would otherwise reach all such sales. United At oral argument counsel suggested that the specific reference to a pawnbroker might have been intended to include "disposition" *822 by barter, swap, trade, or gift. Tr. of Oral Arg. 5-7. This interpretation strains belief. Trades or gifts are not peculiar to pawnbrokers. Wholesalers and retailers may indulge in such dispositions. There is nothing in the legislative history to indicate that this interpretation prompted the specific mention of a pawnbroker in part (C) of the definition. To the contrary, the committee reports indicate that part (C) "specifically provides that a pawnbroker dealing in firearms shall be considered a dealer." H. R. Rep. No. 1577, 90th Cong., 2d Sess., 11 (1968) (emphasis supplied). See also S. Rep. No. 1501, 90th Cong., 2d Sess., 30 (1968). We also cannot ignore the explicit reference to a firearm transaction "by way of pledge or pawn" in the statutory definition of "pawnbroker" in 921 (12). Had Congress' desire been to exempt a transaction of this kind, it would have artfully worded the definition so as to exclude it. We are equally impressed by Congress' failure to exempt redemptive transactions from the prohibitions of the Act when it so carefully carved out exceptions for a dealer "returning a firearm" and for an individual mailing a firearm to a dealer "for the sole purpose of repair or customizing." 922 (2) (A). Petitioner contends that a redemptive transaction is no different from the return of a gun left for repair. His argument is that the pawned weapon is simply "returned" to the individual who left it and represents a mere restoration to its original status. We believe, however, that it was not unreasonable for Congress to choose to view the pawn transaction as something more than the mere interruption in possession typical of repair. The fact that Congress thought it necessary specifically to exempt the repair transaction indicates that it otherwise would have been covered and, if this were so, clearly a pawn transaction likewise would be covered. *823 Other provisions of the Act also make it clear that the statute generally covers all transfers of firearms by dealers to recipients. Section 922 (1) makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of "dealing" in firearms, or in the course of such business "to ship, transport, or receive any firearm." Section 922 (b) (1) makes it unlawful for a dealer "to sell or deliver" firearms of specified types to persons under 18 or 21 years of age. Section 922 (b) (2) makes it unlawful for a dealer to "sell or deliver" a weapon to a person in any State where "at the place of sale, delivery or other disposition," the transfer would violate local law. Section 922 (d) makes it unlawful for a dealer "to sell or otherwise dispose of" a firearm to a person under a felony indictment, a felon, a fugitive, a narcotic addict, or a mental defective. Section 923 (g) requires that each licensed dealer maintain "records of importation, production, shipment, receipt, sale, or other disposition, of firearms." In sum, the word "acquisition," as used in 922 (6), is not ambiguous, but clearly includes any person, by definition, who "come[s] into possession, control, or power of disposal" of a firearm. As noted above, "acquisition" and "sale or other disposition" are correlatives. It is reasonable to conclude that a pawnbroker might "dispose" of a firearm through a redemptive transaction. And because Congress explicitly included pawnbrokers in the Act, explicitly mentioned pledge and pawn transactions involving firearms, and clearly failed to include them among the statutory exceptions, we are not at liberty to tamper with the obvious reach of the statute in proscribing the conduct in which the petitioner engaged. *824 III The legislative history, too, supports this reading of the statute. This is apparent from the aims and purposes of the Act and from the method Congress adopted to achieve those objectives. When Congress enacted the provisions under which petitioner was convicted, it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. Pub. L. 90-351, 1201, as amended by Pub. L. 90-618, 301 (1), 18 U.S. C. App. 1201. Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S. Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping "firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, 922 (1) and 923 ; he is required to keep records of "sale or other disposition," 923 (g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, 924. Section 922 (6), the provision under which petitioner *825 was convicted, was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by dealers was a prime guarantee of the Act's effectiveness in keeping "these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow." 114 Cong. Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty. From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest. Thus, the conclusion we reached above with respect to the language and structure of the Act, that firearms redemptions in pawnshops are covered, is entirely consonant with the achievement of this congressional objective and method of enforcing the Act. Moreover, as was said in United "There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted" (footnotes omitted). Indeed, the committee reports indicate that the proscription under 922 (d) on the sale or other disposition of a firearm to a felon "goes to all types of sales or dispositions— *826 over-the-counter as well as mail order."[7] S. Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). See S. Rep. No. 1501, 90th Cong., 2d Sess., 34 (1968). As far as the parties have informed us, and as far as our independent research has revealed, there is no discussion of the actual meaning of "acquisition" or of "sale or other disposition" in the legislative history. Previous legislation relating to the particular term "other disposition" sheds some light, however, and prudence calls on us to look to it in ascertaining the legislative purpose. United The term apparently had its origin in 1 (k) of the National Firearms Act, Pub. L. 474, (1934). That Act set certain conditions on the "transfer" of machine guns and other dangerous weapons. As defined by the Act, "transfer" meant "to sell, assign, pledge, lease, loan, give away, or otherwise dispose of." The term "otherwise dispose of" in that context was aimed at providing *827 maximum coverage. The interpretation we adopt here accomplishes the same objective.[8] There also can be no doubt of Congress' intention to deprive the juvenile, the mentally incompetent, the criminal, and the fugitive of the use of firearms. Senator Tydings stated: "Title IV, the concealed weapons amendment, is a very limited, stripped-down, bare-minimum gun-traffic control bill, primarily designed to reduce access to handguns for criminals, juveniles, and fugitives I can fairly say that this concealed weapons amendment does not significantly inconvenience hunters and sportsmen in any way. The people it does frustrate are the juveniles, felons, and fugitives who today can, with total anonymity and impunity, obtain guns by mail or by crossing into neighboring States with lax or no gun laws at all, regardless of the law of their own State." 114 Cong. Rec. 13647 (1968). *828 Congressman Celler, the House Manager, stated: "Mr. Chairman, none of us who support Federal firearms controls believe that any bill or any system of control can guarantee that society will be safe from firearms misuse. But we are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons." Congressman McCulloch, a senior member of the House Committee on the Judiciary, in referring specifically to 922 (6), stated, "[The bill] makes it unlawful [f]or any person, in connection with obtaining a firearm or ammunition from a licensee, to make a false representation material to such acquisition."[9] Given these statements of congressional purpose, it would be unwarranted to except pawnshop redemptions *829 when, by virtue of the statutory language itself, such redemptions would be covered. Otherwise every evil Congress hoped to cure would continue unabated.[10] *830 IV Petitioner urges that the intention to include pawn redemptions is so ambiguous and uncertain that the statute should be narrowly construed in his favor. Reliance is placed upon the maxim that an "ambiguity *831 concerning the ambit of criminal statutes should be resolved in favor of lenity." ; United This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. United ; United The rule is also the product of an awareness that legislators and not the courts should define criminal activity. Zeal in forwarding these laudable policies, however, must not be permitted to shadow the understanding that "[s]ound rules of statutory interpretation exist to discover and not to direct the Congressional will." United States ex rel. Although penal laws are to be construed strictly, they "ought not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur ; United United ; United ; United ; United We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner's conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that "an untruthful answer may subject you to criminal prosecution." The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a *832 term exceeding one year and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that "the making of any false oral or written statement with respect to this transaction is a crime punishable as a felony." This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action. Our reading of the statute cannot be viewed as judicial usurpation of the legislative function. The statute's language reveals an unmistakable attempt to include pawnshop transactions, by pledge or pawn, among the transactions covered by the Act. And Congress unquestionably made it unlawful for dealers, including pawnbrokers, "to sell or otherwise dispose of any firearm" to a convicted felon, a juvenile, a drug addict, or a mental defective. 922 (d). Under these circumstances we will not blindly incant the rule of lenity to "destroy the spirit and force of the law which the legislature intended to [and did] enact." American Tobacco ; United 271 U. S., at[11] *833 V The petitioner suggests, lastly, that the application of 922 (6) to a pawn redemption would raise constitutional questions of some moment, and that these would not arise if the statute were narrowly construed. We fail to see the presence of issues of that import. There was no taking of Huddleston's property without just compensation. The rifles, in fact, were not his but his wife's. Moreover, Congress has determined that a convicted felon may not lawfully obtain weapons of that kind. Nor were petitioner's false answers in any way coerced. United ; Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that 922 (6) and (d) (1), in contrast to 18 U.S. C. App. 1202 (1), see United were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, "on the theory that such transactions affect interstate commerce." 4 F.2d, See also United cert. denied, and United 467 F.2d 13, We affirm the judgment of the Court of Appeals. It is so ordered. MR.

Justice Ginsburg

majority

City of Edmonds v. Oxford House, Inc.

https://www.courtlistener.com/opinion/117932/city-of-edmonds-v-oxford-house-inc/

https://www.courtlistener.com/api/rest/v3/clusters/117932/

1994-056

The Fair Housing Act (FHA or Act) prohibits discrimination in housing against, inter alios, persons with handicaps.[1] Section 807(b)(1) of the Act entirely exempts from the FHA's compass "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." 42 U.S. C. § 3607(b)(1). This case presents the question whether a provision in petitioner City of Edmonds' zoning code qualifies for § 3607(b)(1)'s complete exemption from FHA scrutiny. The provision, governing areas zoned for single-family dwelling units, defines "family" as "persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons." Edmonds Community Development Code (ECDC) § 21.30.010 (1991). The defining provision at issue describes who may compose a family unit; it does not prescribe "the maximum number of occupants" a dwelling unit may house. We hold that § 3607(b)(1) does not exempt prescriptions of the familydefining kind, i. e., provisions designed to foster the family character of a neighborhood. Instead, § 3607(b)(1)'s absolute exemption removes from the FHA's scope only total occupancy limits, i. e., numerical ceilings that serve to prevent overcrowding in living quarters. I In the summer of 1990, respondent Oxford House opened a group home in the City of Edmonds, Washington (City), for *729 10 to 12 adults recovering from alcoholism and drug addiction. The group home, called Oxford House-Edmonds, is located in a neighborhood zoned for single-family residences. Upon learning that Oxford House had leased and was operating a home in Edmonds, the City issued criminal citations to the owner and a resident of the house. The citations charged violation of the zoning code rule that defines who may live in single-family dwelling units. The occupants of such units must compose a "family," and family, under the City's defining rule, "means an individual or two or more persons related by genetics, adoption, or marriage, or a group of five or fewer persons who are not related by genetics, adoption, or marriage." ECDC § 21.30.010. Oxford House-Edmonds houses more than five unrelated persons, and therefore does not conform to the code. Oxford House asserted reliance on the Fair Housing Act, 102 Stat. 1619, 42 U.S. C. § 3601 et seq., which declares it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter." § 3604(f)(1)(A). The parties have stipulated, for purposes of this litigation, that the residents of Oxford House-Edmonds "are recovering alcoholics and drug addicts and are handicapped persons within the meaning" of the Act. App. 106. Discrimination covered by the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." § 3604(f)(3)(B). Oxford House asked Edmonds to make a "reasonable accommodation" by allowing it to remain in the single-family dwelling it had leased. Group homes for recovering substance abusers, Oxford urged, need 8 to 12 residents to be financially and therapeutically viable. Edmonds declined to permit Oxford House to stay in a single-family residential zone, but passed an ordinance *730 listing group homes as permitted uses in multifamily and general commercial zones. Edmonds sued Oxford House in the United States District Court for the Western District of Washington, seeking a declaration that the FHA does not constrain the City's zoning code family definition rule. Oxford House counterclaimed under the FHA, charging the City with failure to make a "reasonable accommodation" permitting maintenance of the group home in a single-family zone. The United States filed a separate action on the same FHA "reasonable accommodation" ground, and the two cases were consolidated. Edmonds suspended its criminal enforcement actions pending resolution of the federal litigation. On cross-motions for summary judgment, the District Court held that ECDC § 21.30.010, defining "family," is exempt from the FHA under § 3607(b)(1) as a "reasonable . . . restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling." App. to Pet. for Cert. B-7. The United States Court of Appeals for the Ninth Circuit reversed; holding § 3607(b)(1)'s absolute exemption inapplicable, the Court of Appeals remanded the cases for further consideration of the claims asserted by Oxford House and the United States. Edmonds v. Washington State Building Code Council, 18 F.3d 802 (1994). The Ninth Circuit's decision conflicts with an Eleventh Circuit decision declaring exempt under § 3607(b)(1) a family definition provision similar to the Edmonds prescription. See Elliott v. Athens, 960 F.2d 975 (1992).[2] We granted *731 certiorari to resolve the conflict, 513 U.S. 959 (1994), and we now affirm the Ninth Circuit's judgment.[3] II The sole question before the Court is whether Edmonds' family composition rule qualifies as a "restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling" within the meaning of the FHA's absolute exemption. 42 U.S. C. § 3607(b)(1).[4] In answering this question, we are mindful of the Act's stated policy "to provide, within constitutional limitations, for fair housing throughout the United States." § 3601. We also note precedent recognizing the FHA's "broad and inclusive" compass, and therefore according a "generous construction" to the Act's complaintfiling provision. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 212 (1972). Accordingly, we regard this case as an instance in which an exception to "a general statement *732 of policy" is sensibly read "narrowly in order to preserve the primary operation of the [policy]." Commissioner v. Clark, 489 U.S. 726, 739 (1989).[5] A Congress enacted § 3607(b)(1) against the backdrop of an evident distinction between municipal land-use restrictions and maximum occupancy restrictions. Land-use restrictions designate "districts in which only compatible uses are allowed and incompatible uses are excluded." D. Mandelker, Land Use Law § 4.16, pp. 113-114 (3d ed. 1993) (hereinafter Mandelker). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial. See, e. g., 1 E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 8.01, pp. 8-2 to 8-3 (4th ed. 1995); Mandelker § 1.03, p. 4; 1 E. Yokley, Zoning Law and Practice § 7-2, p. 252 (4th ed. 1978). Land-use restrictions aim to prevent problems caused by the "pig in the parlor instead of the barnyard." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). In particular, reserving land for single-family residences preserves the character of neighborhoods, securing "zones where family values, youth values, and the blessings of quiet *733 seclusion and clean air make the area a sanctuary for people." Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974); see also Moore v. East Cleveland, 431 U.S. 494, 521 (1977) (Burger, C. J., dissenting) (purpose of East Cleveland's single-family zoning ordinance "is the traditional one of preserving certain areas as family residential communities"). To limit land use to single-family residences, a municipality must define the term "family"; thus family composition rules are an essential component of single-family residential use restrictions. Maximum occupancy restrictions, in contradistinction, cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms. See, e. g., International Conference of Building Officials, Uniform Housing Code § 503(b) (1988); Building Officials and Code Administrators International, Inc., BOCA National Property Maintenance Code §§ PM-405.3, PM-405.5 (1993) (hereinafter BOCA Code); Southern Building Code Congress, International, Inc., Standard Housing Code §§ 306.1, 306.2 (1991); E. Mood, APHA—CDC Recommended Minimum Housing Standards § 9.02, p. 37 (1986) (hereinafter APHA— CDC Standards).[6] These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing dwelling overcrowding. See, e. g., BOCA Code §§ PM-101.3, PM-405.3, PM-405.5 and commentary; Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B. U. L. Rev. 1, 41-45 (1976). We recognized this distinction between maximum occupancy restrictions and land-use restrictions in Moore v. East Cleveland, 431 U.S. 494 (1977). In Moore, the Court held unconstitutional the constricted definition of "family" contained *734 in East Cleveland's housing ordinance. East Cleveland's ordinance "select[ed] certain categories of relatives who may live together and declare[d] that others may not"; in particular, East Cleveland's definition of "family" made "a crime of a grandmother's choice to live with her grandson." Id., at 498-499 (plurality opinion). In response to East Cleveland's argument that its aim was to prevent overcrowded dwellings, streets, and schools, we observed that the municipality's restrictive definition of family served the asserted, and undeniably legitimate, goals "marginally, at best." Id., at 500 (footnote omitted). Another East Cleveland ordinance, we noted, "specifically addressed . . . the problem of overcrowding"; that ordinance tied "the maximum permissible occupancy of a dwelling to the habitable floor area." Id., at 500, n. 7; accord, id., at 520, n. 16 (Stevens, J., concurring in judgment). Justice Stewart, in dissent, also distinguished restrictions designed to "preserv[e] the character of a residential area," from prescription of "a minimum habitable floor area per person," id., at 539, n. 9, in the interest of community health and safety.[7] Section 3607(b)(1)'s language—"restrictions regarding the maximum number of occupants permitted to occupy a dwelling"—surely encompasses maximum occupancy restrictions.[8]*735 But the formulation does not fit family composition rules typically tied to land-use restrictions. In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling "plainly and unmistakably," see A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945), fall within § 3607(b)(1)'s absolute exemption from the FHA's governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.[9] B Turning specifically to the City's Community Development Code, we note that the provisions Edmonds invoked against Oxford House, ECDC §§ 16.20.010 and 21.30.010, are classic examples of a use restriction and complementing family composition rule. These provisions do not cap the number of people who may live in a dwelling. In plain terms, they direct *736 that dwellings be used only to house families. Captioned "USES," ECDC § 16.20.010 provides that the sole "Permitted Primary Us[e]" in a single-family residential zone is "[s]ingle-family dwelling units." Edmonds itself recognizes that this provision simply "defines those uses permitted in a single family residential zone." Pet. for Cert. 3. A separate provision caps the number of occupants a dwelling may house, based on floor area: "Floor Area. Every dwelling unit shall have at least one room which shall have not less than 120 square feet of floor area. Other habitable rooms, except kitchens, shall have an area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two." ECDC § 19.10.000 (adopting Uniform Housing Code § 503(b) (1988)).[10] This space and occupancy standard is a prototypical maximum occupancy restriction. Edmonds nevertheless argues that its family composition rule, ECDC § 21.30.010, falls within § 3607(b)(1), the FHA exemption for maximum occupancy restrictions, because the rule caps at five the number of unrelated persons allowed to occupy a single-family dwelling. But Edmonds' family composition rule surely does not answer the question: "What is the maximum number of occupants permitted to occupy a house?" So long as they are related "by genetics, adoption, or marriage," any number of people can live in a house. Ten siblings, their parents and grandparents, for example, could dwell in a house in Edmonds' single-family residential zone without offending Edmonds' family composition rule. *737 Family living, not living space per occupant, is what ECDC § 21.30.010 describes. Defining family primarily by biological and legal relationships, the provision also accommodates another group association: Five or fewer unrelated people are allowed to live together as though they were family. This accommodation is the peg on which Edmonds rests its plea for § 3607(b)(1) exemption. Had the City defined a family solely by biological and legal links, § 3607(b)(1) would not have been the ground on which Edmonds staked its case. See Tr. of Oral Arg. 11-12, 16. It is curious reasoning indeed that converts a family values preserver into a maximum occupancy restriction once a town adds to a related persons prescription "and also two unrelated persons."[11] Edmonds additionally contends that subjecting singlefamily zoning to FHA scrutiny will "overturn Euclidian zoning" and "destroy the effectiveness and purpose of singlefamily zoning." Brief for Petitioner 11, 25. This contention both ignores the limited scope of the issue before us and exaggerates the force of the FHA's antidiscrimination provisions. We address only whether Edmonds' family composition rule qualifies for § 3607(b)(1) exemption. Moreover, the FHA antidiscrimination provisions, when applicable, require only "reasonable" accommodations to afford persons with handicaps "equal opportunity to use and enjoy" housing. §§ 3604(f)(1)(A) and (f)(3)(B). *738 * * * The parties have presented, and we have decided, only a threshold question: Edmonds' zoning code provision describing who may compose a "family" is not a maximum occupancy restriction exempt from the FHA under § 3607(b)(1). It remains for the lower courts to decide whether Edmonds' actions against Oxford House violate the FHA's prohibitions against discrimination set out in §§ 3604(f)(1)(A) and (f)(3)(B). For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

The Fair Housing Act (FHA or Act) prohibits discrimination in housing against, inter alios, persons with handicaps.[1] Section 807(b)(1) of the Act entirely exempts from the FHA's compass "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." 42 U.S. C. 3607(b)(1). This case presents the question whether a provision in petitioner City of Edmonds' zoning code qualifies for 3607(b)(1)'s complete exemption from FHA scrutiny. The provision, governing areas zoned for single-family dwelling units, defines "family" as "persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons." Edmonds Community Development Code (ECDC) 21.30.010 (11). The defining provision at issue describes who may compose a family unit; it does not prescribe "the maximum number of occupants" a dwelling unit may house. We hold that 3607(b)(1) does not exempt prescriptions of the familydefining kind, i. e., provisions designed to foster the family character of a neighborhood. Instead, 3607(b)(1)'s absolute exemption removes from the FHA's scope only total occupancy limits, i. e., numerical ceilings that serve to prevent overcrowding in living quarters. I In the summer of 10, respondent Oxford House opened a group home in the City of Edmonds, Washington (City), for *72 10 to 12 adults recovering from alcoholism and drug addiction. The group home, called Oxford House-Edmonds, is located in a neighborhood zoned for single-family residences. Upon learning that Oxford House had leased and was operating a home in Edmonds, the City issued criminal citations to the owner and a resident of the house. The citations charged violation of the zoning code rule that defines who may live in single-family dwelling units. The occupants of such units must compose a "family," and family, under the City's defining rule, "means an individual or two or more persons related by genetics, adoption, or marriage, or a group of five or fewer persons who are not related by genetics, adoption, or marriage." ECDC 21.30.010. Oxford House-Edmonds houses more than five unrelated persons, and therefore does not conform to the code. Oxford House asserted reliance on the Fair Housing Act, 42 U.S. C. 3601 et seq., which declares it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of that buyer or renter." 3604(f)(1)(A). The parties have stipulated, for purposes of this litigation, that the residents of Oxford House-Edmonds "are recovering alcoholics and drug addicts and are handicapped persons within the meaning" of the Act. App. 106. Discrimination covered by the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped] person[s] equal opportunity to use and enjoy a dwelling." 3604(f)(3)(B). Oxford House asked Edmonds to make a "reasonable accommodation" by allowing it to remain in the single-family dwelling it had leased. Group homes for recovering substance abusers, Oxford urged, need 8 to 12 residents to be financially and therapeutically viable. Edmonds declined to permit Oxford House to stay in a single-family residential zone, but passed an ordinance *730 listing group homes as permitted uses in multifamily and general commercial zones. Edmonds sued Oxford House in the United States District Court for the Western District of Washington, seeking a declaration that the FHA does not constrain the City's zoning code family definition rule. Oxford House counterclaimed under the FHA, charging the City with failure to make a "reasonable accommodation" permitting maintenance of the group home in a single-family zone. The United States filed a separate action on the same FHA "reasonable accommodation" ground, and the two cases were consolidated. Edmonds suspended its criminal enforcement actions pending resolution of the federal litigation. On cross-motions for summary judgment, the District Court held that ECDC 21.30.010, defining "family," is exempt from the FHA under 3607(b)(1) as a "reasonable restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling." App. to Pet. for Cert. B-7. The United States Court of Appeals for the Ninth Circuit reversed; holding 3607(b)(1)'s absolute exemption inapplicable, the Court of Appeals remanded the cases for further consideration of the claims asserted by Oxford House and the United States. The Ninth Circuit's decision conflicts with an Eleventh Circuit decision declaring exempt under 3607(b)(1) a family definition provision similar to the Edmonds prescription. See[2] We granted *731 certiorari to resolve the conflict, and we now affirm the Ninth Circuit's judgment.[3] II The sole question before the Court is whether Edmonds' family composition rule qualifies as a "restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling" within the meaning of the FHA's absolute exemption. 42 U.S. C. 3607(b)(1).[4] In answering this question, we are mindful of the Act's stated policy "to provide, within constitutional limitations, for fair housing throughout the United States." 3601. We also note precedent recognizing the FHA's "broad and inclusive" compass, and therefore according a "generous construction" to the Act's complaintfiling provision. Accordingly, we regard this case as an instance in which an exception to "a general statement *732 of policy" is sensibly read "narrowly in order to preserve the primary operation of the [policy]."[5] A Congress enacted 3607(b)(1) against the backdrop of an evident distinction between municipal land-use restrictions and maximum occupancy restrictions. Land-use restrictions designate "districts in which only compatible uses are allowed and incompatible uses are excluded." D. Mandelker, Land Use Law 4.16, pp. 113-114 (3d ed. 13) (hereinafter Mandelker). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial. See, e. g., 1 E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning 8.01, pp. 8-2 to 8-3 (4th ed. 15); Mandelker 1.03, p. 4; 1 E. Yokley, Zoning Law and Practice 7-2, p. 252 (4th ed. 178). Land-use restrictions aim to prevent problems caused by the "pig in the parlor instead of the barnyard." Village of In particular, reserving land for single-family residences preserves the character of neighborhoods, securing "zones where family values, youth values, and the blessings of quiet *733 seclusion and clean air make the area a sanctuary for people." Village of Belle ; see also 431 U.S. 44, (177) (purpose of East Cleveland's single-family zoning ordinance "is the traditional one of preserving certain areas as family residential communities"). To limit land use to single-family residences, a municipality must define the term "family"; thus family composition rules are an essential component of single-family residential use restrictions. Maximum occupancy restrictions, in contradistinction, cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms. See, e. g., International Conference of Building Officials, Uniform Housing Code 503(b) (188); Building Officials and Code Administrators International, Inc., BOCA National Property Maintenance Code PM-405.3, PM-405.5 (13) (hereinafter BOCA Code); Southern Building Code Congress, International, Inc., Standard Housing Code 306.1, 306.2 (11); E. Mood, APHA—CDC Recommended Minimum Housing Standards02, p. 37 (186) (hereinafter APHA— CDC Standards).[6] These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing dwelling overcrowding. See, e. g., BOCA Code PM-101.3, PM-405.3, PM-405.5 and commentary; Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B. U. L. Rev. 1, 41-45 (176). We recognized this distinction between maximum occupancy restrictions and land-use restrictions in 431 U.S. 44 (177). In Moore, the Court held unconstitutional the constricted definition of "family" contained *734 in East Cleveland's housing ordinance. East Cleveland's ordinance "select[ed] certain categories of relatives who may live together and declare[d] that others may not"; in particular, East Cleveland's definition of "family" made "a crime of a grandmother's choice to live with her grandson." at 48-4 In response to East Cleveland's argument that its aim was to prevent overcrowded dwellings, streets, and schools, we observed that the municipality's restrictive definition of family served the asserted, and undeniably legitimate, goals "marginally, at best." Another East Cleveland ordinance, we noted, "specifically addressed the problem of overcrowding"; that ordinance tied "the maximum permissible occupancy of a dwelling to the habitable floor area." n. 7; accord, Justice Stewart, in dissent, also distinguished restrictions designed to "preserv[e] the character of a residential area," from prescription of "a minimum habitable floor area per person," at 53, n. in the interest of community health and safety.[7] Section 3607(b)(1)'s language—"restrictions regarding the maximum number of occupants permitted to occupy a dwelling"—surely encompasses maximum occupancy restrictions.[8]*735 But the formulation does not fit family composition rules typically tied to land-use restrictions. In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling "plainly and unmistakably," see A. H. Phillips, 324 U.S. 40, 43 (145), fall within 3607(b)(1)'s absolute exemption from the FHA's governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.[] B Turning specifically to the City's Community Development Code, we note that the provisions Edmonds invoked against Oxford House, ECDC 16.20.010 and 21.30.010, are classic examples of a use restriction and complementing family composition rule. These provisions do not cap the number of people who may live in a dwelling. In plain terms, they direct *736 that dwellings be used only to house families. Captioned "USES," ECDC 16.20.010 provides that the sole "Permitted Primary Us[e]" in a single-family residential zone is "[s]ingle-family dwelling units." Edmonds itself recognizes that this provision simply "defines those uses permitted in a single family residential zone." Pet. for Cert. 3. A separate provision caps the number of occupants a dwelling may house, based on floor area: "Floor Area. Every dwelling unit shall have at least one room which shall have not less than 120 square feet of floor area. Other habitable rooms, except kitchens, shall have an area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two." ECDC 1.10.000 (adopting Uniform Housing Code 503(b) (188)).[10] This space and occupancy standard is a prototypical maximum occupancy restriction. Edmonds nevertheless argues that its family composition rule, ECDC 21.30.010, falls within 3607(b)(1), the FHA exemption for maximum occupancy restrictions, because the rule caps at five the number of unrelated persons allowed to occupy a single-family dwelling. But Edmonds' family composition rule surely does not answer the question: "What is the maximum number of occupants permitted to occupy a house?" So long as they are related "by genetics, adoption, or marriage," any number of people can live in a house. Ten siblings, their parents and grandparents, for example, could dwell in a house in Edmonds' single-family residential zone without offending Edmonds' family composition rule. *737 Family living, not living space per occupant, is what ECDC 21.30.010 describes. Defining family primarily by biological and legal relationships, the provision also accommodates another group association: Five or fewer unrelated people are allowed to live together as though they were family. This accommodation is the peg on which Edmonds rests its plea for 3607(b)(1) exemption. Had the City defined a family solely by biological and legal links, 3607(b)(1) would not have been the ground on which Edmonds staked its case. See Tr. of Oral Arg. 11-12, 16. It is curious reasoning indeed that converts a family values preserver into a maximum occupancy restriction once a town adds to a related persons prescription "and also two unrelated persons."[11] Edmonds additionally contends that subjecting singlefamily zoning to FHA scrutiny will "overturn Euclidian zoning" and "destroy the effectiveness and purpose of singlefamily zoning." Brief for Petitioner 11, 25. This contention both ignores the limited scope of the issue before us and exaggerates the force of the FHA's antidiscrimination provisions. We address only whether Edmonds' family composition rule qualifies for 3607(b)(1) exemption. Moreover, the FHA antidiscrimination provisions, when applicable, require only "reasonable" accommodations to afford persons with handicaps "equal opportunity to use and enjoy" housing. 3604(f)(1)(A) and (f)(3)(B). *738 * * * The parties have presented, and we have decided, only a threshold question: Edmonds' zoning code provision describing who may compose a "family" is not a maximum occupancy restriction exempt from the FHA under 3607(b)(1). It remains for the lower courts to decide whether Edmonds' actions against Oxford House violate the FHA's prohibitions against discrimination set out in 3604(f)(1)(A) and (f)(3)(B). For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

Justice Rehnquist

dissenting

Department of Agriculture v. Moreno

https://www.courtlistener.com/opinion/108856/department-of-agriculture-v-moreno/

https://www.courtlistener.com/api/rest/v3/clusters/108856/

1972-176

For much the same reasons as those stated in my dissenting opinion in United States Department of Agriculture v. Murry, ante, p. 522, I am unable to agree with the Court's disposition of this case. Here appellees challenged a provision in the Federal Food Stamp Act, 7 U.S. C. § 2011 et seq., which limited food stamps to related people living in one "household." The result of this provision is that unrelated persons who live under the same roof and pool their resources may not obtain food stamps even though otherwise eligible. The Court's opinion would make a very persuasive congressional committee report arguing against the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with a rather blunt instrument and, just as undoubtedly, persuasive arguments may be made that what we conceive to be its purpose will not be significantly advanced by the enactment of the limitation. But questions such as this are for Congress, rather than for this Court; our role is limited to the *546 determination of whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household. I do not believe that asserted congressional concern with the fraudulent use of food stamps is, when interpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court seems to believe. A basic unit which Congress has chosen for determination of availability for food stamps is the "household," a determination which is not criticized by the Court. By the limitation here challenged, it has singled out households which contain unrelated persons and made such households ineligible. I do not think it is unreasonable for Congress to conclude that the basic unit which it was willing to support with federal funding through food stamps is some variation on the family as we know it— a household consisting of related individuals. This unit provides a guarantee which is not provided by households containing unrelated individuals that the household exists for some purpose other than to collect federal food stamps. Admittedly, as the Court points out, the limitation will make ineligible many households which have not been formed for the purpose of collecting federal food stamps, and will at the same time not wholly deny food stamps to those households which may have been formed in large part to take advantage of the program. But, as the Court concedes, "[t]raditional equal protection analysis does not require that every classification be drawn with precise `mathematical nicety,'" ante, at 538. And earlier this Term, the constitutionality of a similarly "imprecise" rule promulgated pursuant to the Truth in Lending Act was challenged *547 on grounds such as those urged by appellees here. In Mourning v. Family Publications Service, Inc., 411 U.S. 356 (1973), the imposition of the rule on all members of a defined class was sustained because it served to discourage evasion by a substantial portion of that class of disclosure mechanisms chosen by Congress for consumer protection. The limitation which Congress enacted could, in the judgment of reasonable men, conceivably deny food stamps to members of households which have been formed solely for the purpose of taking advantage of the food stamp program. Since the food stamp program is not intended to be a subsidy for every individual who desires low-cost food, this was a permissible congressional decision quite consistent with the underlying policy of the Act. The fact that the limitation will have unfortunate and perhaps unintended consequences beyond this does not make it unconstitutional.

For much the same reasons as those stated in my dissenting opinion in United States Department of Agriculture v. Murry, ante, p. 522, I am unable to agree with the Court's disposition of this case. Here appellees challenged a provision in the Federal Food Stamp Act, 7 U.S. C. 2011 et seq., which limited food stamps to related people living in one "household." The result of this provision is that unrelated persons who live under the same roof and pool their resources may not obtain food stamps even though otherwise eligible. The Court's opinion would make a very persuasive congressional committee report arguing against the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with a rather blunt instrument and, just as undoubtedly, persuasive arguments may be made that what we conceive to be its purpose will not be significantly advanced by the enactment of the limitation. But questions such as this are for Congress, rather than for this Court; our role is limited to the *546 determination of whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household. I do not believe that asserted congressional concern with the fraudulent use of food stamps is, when interpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court seems to believe. A basic unit which Congress has chosen for determination of availability for food stamps is the "household," a determination which is not criticized by the Court. By the limitation here challenged, it has singled out households which contain unrelated persons and made such households ineligible. I do not think it is unreasonable for Congress to conclude that the basic unit which it was willing to support with federal funding through food stamps is some variation on the family as we know it— a household consisting of related individuals. This unit provides a guarantee which is not provided by households containing unrelated individuals that the household exists for some purpose other than to collect federal food stamps. Admittedly, as the Court points out, the limitation will make ineligible many households which have not been formed for the purpose of collecting federal food stamps, and will at the same time not wholly deny food stamps to those households which may have been formed in large part to take advantage of the program. But, as the Court concedes, "[t]raditional equal protection analysis does not require that every classification be drawn with precise `mathematical nicety,'" ante, at 538. And earlier this Term, the constitutionality of a similarly "imprecise" rule promulgated pursuant to the Truth in Lending Act was challenged *547 on grounds such as those urged by appellees here. In the imposition of the rule on all members of a defined class was sustained because it served to discourage evasion by a substantial portion of that class of disclosure mechanisms chosen by Congress for consumer protection. The limitation which Congress enacted could, in the judgment of reasonable men, conceivably deny food stamps to members of households which have been formed solely for the purpose of taking advantage of the food stamp program. Since the food stamp program is not intended to be a subsidy for every individual who desires low-cost food, this was a permissible congressional decision quite consistent with the underlying policy of the Act. The fact that the limitation will have unfortunate and perhaps unintended consequences beyond this does not make it unconstitutional.