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Hoffmann-La Roche Inc. v. Sperling

https://www.courtlistener.com/opinion/112345/hoffmann-la-roche-inc-v-sperling/

https://www.courtlistener.com/api/rest/v3/clusters/112345/

1989-013

The Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq. (1982 ed. and Supp. V), provides that an employee may bring an action on behalf of himself and other employees similarly situated. To resolve disagreement among the Courts of Appeals,[1] we granted certiorari on the question whether a district court conducting a suit of this type may authorize and facilitate notice of the pending action. 489 U.S. 1077 (1989). I Age discrimination in employment is forbidden by § 4 of the ADEA. 29 U.S. C. § 623 (1982 ed. and Supp. V). Section 7(b) of the ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U.S. C. § 201 et seq. (1982 ed. and Supp. V), and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA. This controversy centers around one of the provisions the ADEA incorporates, which states, in pertinent part, that an action "may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or *168 themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S. C. § 216(b) (1982 ed.). In 1985, petitioner Hoffman-La Roche Inc. ordered a reduction in work force and discharged or demoted some 1,200 workers. Richard Sperling, a discharged employee and one of the respondents, filed an age discrimination charge with the Equal Employment Opportunity Commission for himself and all employees similarly situated. With the assistance of counsel, Sperling and some other employees formed a group known as Roche Age Discriminatees Asking Redress (R.A.D.A.R.). The group mailed a letter, on R.A.D.A.R. letterhead, to some 600 employees whom it had identified as potential members of the protected class. The letter advised that an action would be brought against petitioner under the ADEA and invited the addressees to join the suit by filling out and returning an enclosed consent form, thus fulfilling the statutory requirement of joinder by "consent in writing." Respondents filed this ADEA action in Federal District Court and, through R.A.D.A.R.'s letters and informal contacts, received and filed with the court over 400 consents. To ensure that all potential plaintiffs would receive notice of the suit, respondents moved for discovery of the names and addresses of all similarly situated employees. They also requested that the court send notice to all potential plaintiffs who had not yet filed consents. Petitioner opposed both motions and filed a cross-motion asking the court to invalidate the consents already filed on the ground that the solicitation had been misleading. In addition, petitioner requested that the court send out a "corrective notice" to the individuals who had filed consents. To resolve these matters the District Court ordered petitioner to produce the names and addresses of the discharged employees. The District Court held that it was "permissible *169 for a court to facilitate notice of an ADEA suit to absent class members in appropriate cases, so long as the court avoids communicating to absent class members any encouragement to join the suit or any approval of the suit on its merits." 118 F. R. D. 392, 402 (NJ 1988). The court also authorized respondents to send to all employees who had not yet joined the suit a notice and a consent document, with a text and form approved by the court. The court attached the authorized notice to its interlocutory order. At the end of the approved notice was a statement that the notice had been authorized by the District Court, but that the court had taken no position on the merits of the case. Id., at 417. Finally, the District Court refused to invalidate the consents already filed. The District Court found that its orders regarding discovery and further notice met the requirements for immediate appeal, 28 U.S. C. § 1292(b) (1982 ed., Supp. V), and the Court of Appeals permitted an appeal from that portion of the ruling. The Court of Appeals affirmed the discovery order and the order for further notice, ruling that "there is no legal impediment to court-authorized notice in an appropriate case." 862 F.2d 439, 447 (CA3 1988). The Court of Appeals declined to review the form and contents of the notice to potential plaintiffs and, in particular, it declined to pass upon the concluding statement of the notice stating that it had been authorized by the District Court. II As it comes before us, this case presents the narrow question whether, in an ADEA action, district courts may play any role in prescribing the terms and conditions of communication from the named plaintiffs to the potential members of the class on whose behalf the collective action has been brought. We hold that district courts have discretion, in appropriate cases, to implement 29 U.S. C. § 216(b) (1982 ed.), as incorporated by 29 U.S. C. § 626(b) (1982 ed.), in ADEA actions by facilitating notice to potential plaintiffs. *170 The facts and circumstances of this case illustrate the propriety, if not the necessity, for court intervention in the notice process. As did the Court of Appeals, we decline to examine the terms of the notice used here, or its concluding statement indicating court authorization. We confirm the existence of the trial court's discretion, not the details of its exercise. The District Court was correct to permit discovery of the names and addresses of the discharged employees. Without pausing to explore alternative bases for the discovery, for instance that the employees might have knowledge of other discoverable matter, we find it suffices to say that the discovery was relevant to the subject matter of the action and that there were no grounds to limit the discovery under the facts and circumstances of this case. The ADEA, through incorporation of § 216(b), expressly authorizes employees to bring collective age discrimination actions "in behalf of . . . themselves and other employees similarly situated." 29 U.S. C. § 216(b) (1982 ed.). Congress has stated its policy that ADEA plaintiffs should have the opportunity to proceed collectively. A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity. These benefits, however, depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate. Section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 83. It follows that, once an ADEA action is filed, the court has a *171 managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way. We have recognized that a trial court has a substantial interest in communications that are mailed for single actions involving multiple parties. In Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981), we held that a District Court erred by entering an order that in effect prohibited communications between the named plaintiffs and others in a Rule 23 class action. Observing that class actions serve important goals but also present opportunities for abuse, we noted that "[b]ecause of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties." 452 U.S., at 100. The same justifications apply in the context of an ADEA action. Although the collective form of action is designed to serve the important function of preventing age discrimination, the potential for misuse of the class device, as by misleading communications, may be countered by court-authorized notice.[2] Because trial court involvement in the notice process is inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies within the discretion of a district court to begin its involvement early, at the point of the initial notice, rather than at some later time. One of the most significant insights that skilled trial judges have gained in recent years is the wisdom and necessity for early judicial intervention in the management of litigation. Peckham, The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 Calif. L. Rev. 770 (1981); Schwarzer, Managing Civil Litigation: The Trial Judge's Role, 61 Judicature 400 (1978). A trial court can *172 better manage a major ADEA action if it ascertains the contours of the action at the outset. The court is not limited to waiting passively for objections about the manner in which the consents were obtained. By monitoring preparation and distribution of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes about the content of the notice before it is distributed. This procedure may avoid the need to cancel consents obtained in an improper manner. The instant case is illustrative. Petitioner objected to the form of the notice first sent by respondents' counsel, alleging that it was so inaccurate that any consents based on it should be found invalid by the court, and at the same time petitioner resisted discovery of the names and addresses of the discharged employees. Questions of notice, proper discovery, and the validity of consents were intertwined. Court authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action. In this case, the trial court, as part of its order, set a cutoff date for the filing of consents, as it was bound to do if the action was to proceed in diligent fashion. By approving the form of notice sent, the trial court could be assured that its cutoff date was reasonable, rather than having to set a cutoff date based on a series of unauthorized communications or even gossip that might have been misleading. In the context of the explicit statutory direction of a single ADEA action for multiple ADEA plaintiffs, the Federal Rules of Civil Procedure provide further support for the trial court's authority to facilitate notice. Under the terms of Rule 83, courts, in any case "not provided for by rule," may "regulate their practice in any manner not inconsistent with" federal or local rules. Rule 83 endorses measures to regulate the actions of the parties to a multiparty suit. See Gulf Oil Co., supra, at 99, n. 10. This authority is well settled, as courts traditionally have exercised considerable authority *173 "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962) (court had authority sua sponte to dismiss action for failure to prosecute). The interest of courts in managing collective actions in an orderly fashion is reinforced by Rule 16(b), requiring entry of a scheduling order limiting time for various pretrial steps such as joinder of additional parties. At pretrial conferences, courts are encouraged to address "the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, [or] multiple parties . . . ." Fed. Rule Civ. Proc. 16(c)(10). We reject petitioner's contention that court involvement in the notice process would thwart Congress' intention to relieve employers from the burden of multiparty actions, as expressed in the 1947 amendments to the FLSA. In 1938, Congress gave employees and their "representatives" the right to bring actions to recover amounts due under the FLSA. No written consent requirement of joinder was specified by the statute. In enacting the Portal-to-Portal Act of 1947, Congress made certain changes in these procedures. In part responding to excessive litigation spawned by plaintiffs lacking a personal interest in the outcome, the representative action by plaintiffs not themselves possessing claims was abolished, and the requirement that an employee file a written consent was added. See 93 Cong. Rec. 538, 2182 (1947) (remarks of Sen. Donnell). The relevant amendment was for the purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions. Portal-to-Portal Act of 1947, ch. 52, §§ 5(a), 6, 7, 61 Stat. 87-88. Congress left intact the "similarly situated" language providing for collective actions, such as this one. The broad remedial goal of the statute should be enforced to the full extent of its terms. *174 Our decision does not imply that trial courts have unbridled discretion in managing ADEA actions. Court intervention in the notice process for case management purposes is distinguishable in form and function from the solicitation of claims. In exercising the discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action. The judgment of the Third Circuit is affirmed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S. C. 621 et seq. (1982 ed. and Supp. V), provides that an employee may bring an action on behalf of himself and other employees similarly situated. To resolve disagreement among the Courts of Appeals,[1] we granted certiorari on the question whether a district court conducting a suit of this type may authorize and facilitate notice of the pending action. I Age discrimination in employment is forbidden by 4 of the ADEA. 29 U.S. C. 623 (1982 ed. and Supp. V). Section 7(b) of the ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S. C. 201 et seq. (1982 ed. and Supp. V), and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA. This controversy centers around one of the provisions the ADEA incorporates, which states, in pertinent part, that an action "may be maintained against any employer in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or *168 themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." 29 U.S. C. 216(b) (1982 ed.). In 1985, petitioner Hoffman-La Roche Inc. ordered a reduction in work force and discharged or demoted some 1,200 workers. Richard Sperling, a discharged employee and one of the respondents, filed an age discrimination charge with the Equal Employment Opportunity Commission for himself and all employees similarly situated. With the assistance of counsel, Sperling and some other employees formed a group known as Roche Age Discriminatees Asking Redress (R.A.D.A.R.). The group mailed a letter, on R.A.D.A.R. letterhead, to some 600 employees whom it had identified as potential members of the protected class. The letter advised that an action would be brought against petitioner under the ADEA and invited the addressees to join the suit by filling out and returning an enclosed consent form, thus fulfilling the statutory requirement of joinder by "consent in writing." Respondents filed this ADEA action in Federal District Court and, through R.A.D.A.R.'s letters and informal contacts, received and filed with the court over 400 consents. To ensure that all potential plaintiffs would receive notice of the suit, respondents moved for discovery of the names and addresses of all similarly situated employees. They also requested that the court send notice to all potential plaintiffs who had not yet filed consents. Petitioner opposed both motions and filed a cross-motion asking the court to invalidate the consents already filed on the ground that the solicitation had been misleading. In addition, petitioner requested that the court send out a "corrective notice" to the individuals who had filed consents. To resolve these matters the District Court ordered petitioner to produce the names and addresses of the discharged employees. The District Court held that it was "permissible *169 for a court to facilitate notice of an ADEA suit to absent class members in appropriate cases, so long as the court avoids communicating to absent class members any encouragement to join the suit or any approval of the suit on its merits." 118 F. R. D. 392, 402 The court also authorized respondents to send to all employees who had not yet joined the suit a notice and a consent document, with a text and form approved by the court. The court attached the authorized notice to its interlocutory order. At the end of the approved notice was a statement that the notice had been authorized by the District Court, but that the court had taken no position on the merits of the case. Finally, the District Court refused to invalidate the consents already filed. The District Court found that its orders regarding discovery and further notice met the requirements for immediate appeal, 28 U.S. C. 1292(b) (1982 ed., Supp. V), and the Court of Appeals permitted an appeal from that portion of the ruling. The Court of Appeals affirmed the discovery order and the order for further notice, ruling that "there is no legal impediment to court-authorized notice in an appropriate case." The Court of Appeals declined to review the form and contents of the notice to potential plaintiffs and, in particular, it declined to pass upon the concluding statement of the notice stating that it had been authorized by the District Court. II As it comes before us, this case presents the narrow question whether, in an ADEA action, district courts may play any role in prescribing the terms and conditions of communication from the named plaintiffs to the potential members of the class on whose behalf the collective action has been brought. We hold that district courts have discretion, in appropriate cases, to implement 29 U.S. C. 216(b) (1982 ed.), as incorporated by 29 U.S. C. 626(b) (1982 ed.), in ADEA actions by facilitating notice to potential plaintiffs. *170 The facts and circumstances of this case illustrate the propriety, if not the necessity, for court intervention in the notice process. As did the Court of Appeals, we decline to examine the terms of the notice used here, or its concluding statement indicating court authorization. We confirm the existence of the trial court's discretion, not the details of its exercise. The District Court was correct to permit discovery of the names and addresses of the discharged employees. Without pausing to explore alternative bases for the discovery, for instance that the employees might have knowledge of other discoverable matter, we find it suffices to say that the discovery was relevant to the subject matter of the action and that there were no grounds to limit the discovery under the facts and circumstances of this case. The ADEA, through incorporation of 216(b), expressly authorizes employees to bring collective age discrimination actions "in behalf of themselves and other employees similarly situated." 29 U.S. C. 216(b) (1982 ed.). Congress has stated its policy that ADEA plaintiffs should have the opportunity to proceed collectively. A collective action allows age discrimination plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity. These benefits, however, depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate. Section 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 83. It follows that, once an ADEA action is filed, the court has a *171 managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way. We have recognized that a trial court has a substantial interest in communications that are mailed for single actions involving multiple parties. In Gulf Oil we held that a District Court erred by entering an order that in effect prohibited communications between the named plaintiffs and others in a Rule 23 class action. Observing that class actions serve important goals but also present opportunities for abuse, we noted that "[b]ecause of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties." The same justifications apply in the context of an ADEA action. Although the collective form of action is designed to serve the important function of preventing age discrimination, the potential for misuse of the class device, as by misleading communications, may be countered by court-authorized notice.[2] Because trial court involvement in the notice process is inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies within the discretion of a district court to begin its involvement early, at the point of the initial notice, rather than at some later time. One of the most significant insights that skilled trial judges have gained in recent years is the wisdom and necessity for early judicial intervention in the management of litigation. Peckham, The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, ; Schwarzer, Managing Civil Litigation: The Trial Judge's Role, 61 Judicature 400 (1978). A trial court can *172 better manage a major ADEA action if it ascertains the contours of the action at the outset. The court is not limited to waiting passively for objections about the manner in which the consents were obtained. By monitoring preparation and distribution of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes about the content of the notice before it is distributed. This procedure may avoid the need to cancel consents obtained in an improper manner. The instant case is illustrative. Petitioner objected to the form of the notice first sent by respondents' counsel, alleging that it was so inaccurate that any consents based on it should be found invalid by the court, and at the same time petitioner resisted discovery of the names and addresses of the discharged employees. Questions of notice, proper discovery, and the validity of consents were intertwined. Court authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to expedite disposition of the action. In this case, the trial court, as part of its order, set a cutoff date for the filing of consents, as it was bound to do if the action was to proceed in diligent fashion. By approving the form of notice sent, the trial court could be assured that its cutoff date was reasonable, rather than having to set a cutoff date based on a series of unauthorized communications or even gossip that might have been misleading. In the context of the explicit statutory direction of a single ADEA action for multiple ADEA plaintiffs, the Federal Rules of Civil Procedure provide further support for the trial court's authority to facilitate notice. Under the terms of Rule 83, courts, in any case "not provided for by rule," may "regulate their practice in any manner not inconsistent with" federal or local rules. Rule 83 endorses measures to regulate the actions of the parties to a multiparty suit. See Gulf Oil This authority is well settled, as courts traditionally have exercised considerable authority *173 "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. The interest of courts in managing collective actions in an orderly fashion is reinforced by Rule 16(b), requiring entry of a scheduling order limiting time for various pretrial steps such as joinder of additional parties. At pretrial conferences, courts are encouraged to address "the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, [or] multiple parties" Fed. Rule Civ. Proc. 16(c)(10). We reject petitioner's contention that court involvement in the notice process would thwart Congress' intention to relieve employers from the burden of multiparty actions, as expressed in the 1947 amendments to the FLSA. In 1938, Congress gave employees and their "representatives" the right to bring actions to recover amounts due under the FLSA. No written consent requirement of joinder was specified by the statute. In enacting the Portal-to-Portal Act of 1947, Congress made certain changes in these procedures. In part responding to excessive litigation spawned by plaintiffs lacking a personal interest in the outcome, the representative action by plaintiffs not themselves possessing claims was abolished, and the requirement that an employee file a written consent was added. See 93 Cong. Rec. 538, 2182 (1947) (remarks of Sen. Donnell). The relevant amendment was for the purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions. Portal-to-Portal Act of 1947, ch. 52, 5(a), 6, 7, -88. Congress left intact the "similarly situated" language providing for collective actions, such as this one. The broad remedial goal of the statute should be enforced to the full extent of its terms. *174 Our decision does not imply that trial courts have unbridled discretion in managing ADEA actions. Court intervention in the notice process for case management purposes is distinguishable in form and function from the solicitation of claims. In exercising the discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action. The judgment of the Third Circuit is affirmed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

Justice Rehnquist

majority

Jones v. North Carolina Prisoners' Labor Union, Inc.

https://www.courtlistener.com/opinion/109718/jones-v-north-carolina-prisoners-labor-union-inc/

https://www.courtlistener.com/api/rest/v3/clusters/109718/

1976-163

Pursuant to regulations promulgated by the North Carolina Department of Correction, appellants prohibited inmates from soliciting other inmates to join appellee, the North Carolina Prisoners' Labor Union, Inc. (Union), barred all meetings of the Union, and refused to deliver packets of Union publications that had been mailed in bulk to several inmates for redistribution among other prisoners. The Union instituted this action, based on 42 U.S. C. § 1983, to challenge these policies. It alleged that appellants' efforts to prevent the operation of a prisoners' union violated the First and Fourteenth Amendment rights of it and its members and that the refusal to grant the Union those privileges accorded several other organizations operating within the prison system deprived the Union of equal protection of the laws. A three-judge court was convened. After a hearing, the court found merit in the Union's free speech, association, and equal protection arguments, and enjoined appellants from preventing inmates from soliciting other prisoners to join the Union and from "refus[ing] receipt of the Union's publications on the ground that they are calculated to encourage membership in the organization or solicit joining." The court also held that the Union "shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations . . . ." 409 F. Supp. 937. We noted probable jurisdiction to consider whether the First and Fourteenth Amendments extend prisoner labor unions such protection. 429 U.S. 976. We have decided that they do not, and we accordingly reverse the judgment of the District Court. *122 I Appellee, an organization self-denominated as a Prisoners' Labor Union, was incorporated in late 1974, with a stated goal of "the promotion of charitable labor union purposes" and the formation of a "prisoners' labor union at every prison and jail in North Carolina to seek through collective bargaining . . . to improve . . . working . . . conditions. . . ."[1] It also proposed to work toward the alteration or elimination of practices and policies of the Department of Correction which it did not approve of, and to serve as a vehicle for the presentation and resolution of inmate grievances. By early 1975, the Union had attracted some 2,000 inmate "members" in 40 different prison units throughout North Carolina. The State of North Carolina, unhappy with these developments, set out to prevent inmates from forming or operating a "union." While the State tolerated individual "membership," or belief, in the Union, it sought to prohibit inmate solicitation of other inmates, meetings between members of the Union, and bulk mailings concerning the Union from outside sources. Pursuant to a regulation promulgated by the Department of Correction on March 26, 1975, such solicitation and group activity were proscribed. Suit was filed by the Union in the United States District Court for the Eastern District of North Carolina on March 18, 1975, approximately a week before the date upon which the regulation was to take effect. The Union claimed that its rights, and the rights of its members, to engage in protected free speech, association, and assembly activities were being infringed by the no-solicitation and no-meeting rules. It also alleged a deprivation of equal protection of the laws in that *123 the Jaycees and Alcoholics Anonymous were permitted to have meetings and other organizational rights, such as the distribution of bulk mailing material, that the Union was being denied. A declaratory judgment and injunction against continuation of these restrictive policies were sought, as were substantial damages.[2] A three-judge District Court, convened pursuant to 28 U.S. C. §§ 2281 and 2284, while dismissing the Union's prayers for damages and attorney's fees, granted it substantial injunctive relief. The court found that appellants "permitted" inmates to join the Union, but "oppose[d] the solicitation of other inmates to join," either by inmate-to-inmate solicitation or by correspondence. 409 F. Supp., at 941. The court noted, id., at 942: "[Appellants] sincerely believe that the very existence of the Union will increase the burdens of administration and constitute a threat of essential discipline and control. They are apprehensive that inmates may use the Union to establish a power bloc within the inmate population which could be utilized to cause work slowdowns or stoppages or other undesirable concerted activity." The District Court concluded, however, that there was "no consensus" among experts on these matters, and that it was "left with no firm conviction that an association of inmates is necessarily good or bad. . . ." Id., at 942-943. The court felt that since appellants countenanced the bare fact of Union membership, it had to allow solicitation activity, whether by inmates or by outsiders: "We are unable to perceive why it is necessary or essential to security and order in the prisons to forbid *124 solicitation of membership in a union permitted by the authorities. This is not a case of riot. There is not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions." Id., at 944. The other questions, respecting the bulk mailing by the Union of literature into the prisons for distribution and the question of meetings of inmate members, the District Court resolved against appellants "by application of the equal protection clause of the fourteenth amendment." Ibid. Finding that such meetings and bulk mailing privileges had been permitted the Jaycees, Alcoholics Anonymous, and, in one institution, the Boy Scouts, the District Court concluded that appellants "may not pick and choose depending on [their] approval or disapproval of the message or purpose of the group" unless "the activity proscribed is shown to be detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." Ibid. The court concluded that appellants had failed to meet this burden. Appropriate injunctive relief was thereupon ordered.[3] *125 II A The District Court, we believe, got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement. While litigation by prison inmates concerning conditions of confinement, challenged other than under the Eighth Amendment, is of recent vintage, this Court has long recognized that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948); see also Pell v. Procunier, 417 U.S. 817, 822 (1974); Wolff v. McDonnell, 418 U.S. 539, 555 (1974). The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, supra, at 822: "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison *126 walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution. Equally as obvious, the inmate's "status as a prisoner" and the operational realities of a prison dictate restrictions on the associational rights among inmates. Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators. We noted in Procunier v. Martinez, 416 U.S. 396, 405 (1974): "[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities." (Footnote omitted.) See also Cruz v. Beto, 405 U.S. 319, 321 (1972). It is in this context that the claims of the Union must be examined. B State correctional officials uniformly testified that the concept of a prisoners' labor union was itself fraught with potential dangers, whether or not such a union intended, illegally, to press for collective-bargaining recognition.[4] Appellant *127 Ralph Edwards, the Commissioner of the Department of Correction, stated in his affidavit: "The creation of an inmate union will naturally result in increasing the existing friction between inmates and prison personnel. It can also create friction between union inmates and non-union inmates." Appellant David Jones, the Secretary of the Department of Correction, stated: "The existence of a union of inmates can create a divisive element within the inmate population. In a time when the units are already seriously over-crowded, such an element could aggravate already tense conditions. The purpose of the union may well be worthwhile projects. But it is evident that the inmate organizers could, if recognized as spokesman for all inmates, make themselves to be power figures among the inmates. If the union is successful, these inmates would be in a position to misuse their influence. After the inmate union has become established, there would probably be nothing this Department could do to terminate its existence, even if its activities became overtly subversive to the functioning of the Department. Work stoppages and mutinies are easily foreseeable. Riots and chaos would almost inevitably result. Thus, even if the purposes of the union are as stated in the complaint, the potential for a dangerous situation exists, a situation which could not be brought under control." The District Court did not reject these beliefs as fanciful or erroneous. It, instead, noted that they were held "sincerely," and were arguably correct.[5] 409 F. Supp., at 942-943. Without *128 a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be "detrimental to proper penological objectives" or would constitute a "present danger to security and order." Id., at 944-945. Rather, "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U. S., at 827. The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this. The District Court, however, gave particular emphasis to what it viewed as appellants' tolerance of membership by inmates in the Union as undermining appellants' position. It viewed a system which permitted inmate "membership" but prohibited inmate-to-inmate solicitation (as well, it should be noted, as meetings, or other group activities) as bordering "on the irrational," and felt that "[t]he defendants' own hypothesis in this case is that the existence of the Union and membership in it are not dangerous, for otherwise they would surely have undertaken to forbid membership." 409 F. Supp., at 944. This, however, considerably overstates what appellants' concession as to pure membership entails. Appellants permitted membership because of the reasonable assumption that each individual prisoner could believe what he chose to believe, and that outside individuals should be able to communicate ideas and beliefs to individual inmates. Since a *129 member qua member incurs no dues or obligations—a prisoner apparently may become a member simply by considering himself a member—this position simply reflects the concept that thought control, by means of prohibiting beliefs, would not only be undesirable but impossible. But appellants never acquiesced in, or permitted, group activity of the Union in the nature of a functioning organization of the inmates within the prison, nor did the District Court find that they had. It is clearly not irrational to conclude that individuals may believe what they want, but that concerted group activity, or solicitation therefor, would pose additional and unwarranted problems and frictions in the operation of the State's penal institutions. The ban on inmate solicitation and group meetings, therefore, was rationally related to the reasonable, indeed to the central, objectives of prison administration. Cf. Pell v. Procunier, supra, at 822. C The invocation of the First Amendment, whether the asserted rights are speech or associational, does not change this analysis. In a prison context, an inmate does not retain those First Amendment rights that are "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, supra, at 822. Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a "mutual accommodation between institutional needs and objectives [of prisons] and the provisions of the Constitution that are of general application," Wolff v. McDonnell, 418 U. S., at 556, this Court has repeatedly recognized the need for major restrictions on a prisoner's rights. See, e. g., id., at 561-562; Lanza v. New York, 370 U.S. 139, 143 (1962). These restrictions have applied as well *130 where First Amendment values were implicated. See, e. g., Pell v. Procunier, supra; Procunier v. Martinez, 416 U.S. 396 (1974); Meachum v. Fano, 427 U.S. 215 (1976). An examination of the potential restrictions on speech or association that have been imposed by the regulations under challenge, demonstrates that the restrictions imposed are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution. To begin with, First Amendment speech rights are barely implicated in this case.[6] Mail rights are not themselves implicated; the only question respecting the mail is that of bulk mailings.[7] The advantages of bulk mailings to inmates by the Union are those of cheaper rates and convenience. While the District Court relied on the cheaper bulk mailing rates in finding an equal protection violation, infra, at 133, it is clear that losing these cost advantages does not *131 fundamentally implicate free speech values. Since other avenues of outside informational flow by the Union remain available, the prohibition on bulk mailing, reasonable in the absence of First Amendment considerations, remains reasonable.[8] Cf. Pell v. Procunier, supra; Saxbe v. Washington Post Co., 417 U.S. 843 (1974). Nor does the prohibition on inmate-to-inmate solicitation of membership trench untowardly on the inmates' First Amendment speech rights. Solicitation of membership itself involves a good deal more than the simple expression of *132 individual views as to the advantages or disadvantages of a union or its views; it is an invitation to collectively engage in a legitimately prohibited activity. If the prison officials are otherwise entitled to control organized union activity within the prison walls, the prohibition on solicitation for such activity is not then made impermissible on account of First Amendment considerations, for such a prohibition is then not only reasonable but necessary. Pell v. Procunier, 417 U. S., at 822. First Amendment associational rights, while perhaps more directly implicated by the regulatory prohibitions, likewise must give way to the reasonable considerations of penal management. As already noted, numerous associational rights are necessarily curtailed by the realities of confinement. They may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment. As we noted in Pell v. Procunier, supra, at 823, "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Appellant prison officials concluded that the presence, perhaps even the objectives, of a prisoners' labor union would be detrimental to order and security in the prisons, supra, at 127. It is enough to say that they have not been conclusively shown to be wrong in this view. The interest in preserving order and authority in the prisons is self-evident. Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration. Wolff v. McDonnell, 418 U. S., at 561-562. Responsible prison officials must be permitted to take reasonable steps to forestall such a threat, and they must be permitted to act before the *133 time when they can compile a dossier on the eve of a riot.[9] The case of a prisoners' union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone's list of potential trouble spots. If the appellants' views as to the possible detrimental effects of the organizational activities of the Union are reasonable, as we conclude they are, then the regulations are drafted no more broadly than they need be to meet the perceived threat—which stems directly from group meetings and group organizational activities of the Union. Cf. Procunier v. Martinez, 416 U. S., at 412-416. When weighed against the First Amendment rights asserted, these institutional reasons are sufficiently weighty to prevail. D The District Court rested on the Equal Protection Clause of the Fourteenth Amendment to strike down appellants' prohibition against the receipt and distribution of bulk mail from the Union as well as the prohibition of Union meetings among the inmates. It felt that this was a denial of equal protection because bulk mailing and meeting rights had been extended to the Jaycees, Alcoholics Anonymous, and the Boy Scouts. The court felt that just as outside the prison, a "government may not pick and choose depending upon its approval or disapproval of the message or purpose of the group," 409 F. Supp., at 944, so, too, appellants could not choose among groups without first demonstrating that the activity proscribed is "detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." Ibid. This analysis is faulty for two reasons. The District Court *134 erroneously treated this case as if the prison environment were essentially a "public forum." We observed last Term in upholding a ban on political meetings at Fort Dix that a Government enclave such as a military base was not a public forum. Greer v. Spock, 424 U.S. 828 (1976). We stated, id., at 838 n. 10: "The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever." A prison may be no more easily converted into a public forum than a military base. Thus appellants need only demonstrate a rational basis for their distinctions between organizational groups. Cf. City of Charlotte v. Firefighters, 426 U.S. 283 (1976). Here, appellants' affidavits indicate exactly why Alcoholics Anonymous and the Jaycees have been allowed to operate within the prison. Both were seen as serving a rehabilitative purpose, working in harmony with the goals and desires of the prison administrators, and both had been determined not to pose any threat to the order or security of the institution.[10] The affidavits indicate that the administrators' *135 view of the Union differed critically in both these respects.[11] Those conclusions are not unreasonable. Prison administrators may surely conclude that the Jaycees and Alcoholics Anonymous differ in fundamental respects from appellee Union, a group with no past to speak of, and with the avowed intent to pursue an adversary relationship with the prison officials. Indeed, it would be enough to distinguish the Union from Alcoholics Anonymous to note that the chartered purpose of *136 the Union, apparently pursued in the prison, was illegal under North Carolina law.[12] Since a prison is most emphatically not a "public forum," these reasonable beliefs of appellants are sufficient, cf. Greer v. Spock, supra; City of Charlotte v. Firefighters, supra. The District Court's further requirement of a demonstrable showing that the Union was in fact harmful is inconsistent with the deference federal courts should pay to the informed discretion of prison officials. Procunier v. Martinez, 416 U. S., at 405. It is precisely in matters such as this, the decision as to which of many groups should be allowed to operate within the prison walls, where, confronted with claims based on the Equal Protection Clause, the courts should allow the prison administrators the full latitude of discretion, unless it can be firmly stated that the two groups are so similar that discretion has been abused. That is surely not the case here. There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence. The regulations of appellants challenged in the District Court offended neither the First nor the Fourteenth Amendment, and the judgment of that court holding to the contrary is Reversed. MR.

Pursuant to regulations promulgated by the North Carolina Department of Correction, appellants prohibited inmates from soliciting other inmates to join appellee, the North Carolina Prisoners' Labor Union, Inc. (Union), barred all meetings of the Union, and refused to deliver packets of Union publications that had been mailed in bulk to several inmates for redistribution among other prisoners. The Union instituted this action, based on 42 U.S. C. 1983, to challenge these policies. It alleged that appellants' efforts to prevent the operation of a prisoners' union violated the First and Fourteenth Amendment rights of it and its members and that the refusal to grant the Union those privileges accorded several other organizations operating within the prison system deprived the Union of equal protection of the laws. A three-judge court was convened. After a hearing, the court found merit in the Union's free speech, association, and equal protection arguments, and enjoined appellants from preventing inmates from soliciting other prisoners to join the Union and from "refus[ing] receipt of the Union's publications on the ground that they are calculated to encourage membership in the organization or solicit joining." The court also held that the Union "shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations" We noted probable jurisdiction to consider whether the First and Fourteenth Amendments extend prisoner labor unions such protection. We have decided that they do not, and we accordingly reverse the judgment of the District Court. *122 I Appellee, an organization self-denominated as a Prisoners' Labor Union, was incorporated in late 1974, with a stated goal of "the promotion of charitable labor union purposes" and the formation of a "prisoners' labor union at every prison and jail in North Carolina to seek through collective bargaining to improve working conditions."[1] It also proposed to work toward the alteration or elimination of practices and policies of the Department of Correction which it did not approve of, and to serve as a vehicle for the presentation and resolution of inmate grievances. By early 1975, the Union had attracted some 2,000 inmate "members" in 40 different prison units throughout North Carolina. The State of North Carolina, unhappy with these developments, set out to prevent inmates from forming or operating a "union." While the State tolerated individual "membership," or belief, in the Union, it sought to prohibit inmate solicitation of other inmates, meetings between members of the Union, and bulk mailings concerning the Union from outside sources. Pursuant to a regulation promulgated by the Department of Correction on March 26, 1975, such solicitation and group activity were proscribed. Suit was filed by the Union in the United States District Court for the Eastern District of North Carolina on March 18, 1975, approximately a week before the date upon which the regulation was to take effect. The Union claimed that its rights, and the rights of its members, to engage in protected free speech, association, and assembly activities were being infringed by the no-solicitation and no-meeting rules. It also alleged a deprivation of equal protection of the laws in that *123 the Jaycees and Alcoholics Anonymous were permitted to have meetings and other organizational rights, such as the distribution of bulk mailing material, that the Union was being denied. A declaratory judgment and injunction against continuation of these restrictive policies were sought, as were substantial damages.[2] A three-judge District Court, convened pursuant to 28 U.S. C. 2281 and 2284, while dismissing the Union's prayers for damages and attorney's fees, granted it substantial injunctive relief. The court found that appellants "permitted" inmates to join the Union, but "oppose[d] the solicitation of other inmates to join," either by inmate-to-inmate solicitation or by The court noted, at 942: "[Appellants] sincerely believe that the very existence of the Union will increase the burdens of administration and constitute a threat of essential discipline and control. They are apprehensive that inmates may use the Union to establish a power bloc within the inmate population which could be utilized to cause work slowdowns or stoppages or other undesirable concerted activity." The District Court concluded, however, that there was "no consensus" among experts on these matters, and that it was "left with no firm conviction that an association of inmates is necessarily good or bad." The court felt that since appellants countenanced the bare fact of Union membership, it had to allow solicitation activity, whether by inmates or by outsiders: "We are unable to perceive why it is necessary or essential to security and order in the to forbid *124 solicitation of membership in a union permitted by the authorities. This is not a case of riot. There is not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions." The other questions, respecting the bulk mailing by the Union of literature into the for distribution and the question of meetings of inmate members, the District Court resolved against appellants "by application of the equal protection clause of the fourteenth amendment." Finding that such meetings and bulk mailing privileges had been permitted the Jaycees, Alcoholics Anonymous, and, in one institution, the Boy Scouts, the District Court concluded that appellants "may not pick and choose depending on [their] approval or disapproval of the message or purpose of the group" unless "the activity proscribed is shown to be detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." The court concluded that appellants had failed to meet this burden. Appropriate injunctive relief was thereupon ordered.[3] *125 II A The District Court, we believe, got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement. While litigation by prison inmates concerning conditions of confinement, challenged other than under the Eighth Amendment, is of recent vintage, this Court has long recognized that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." ; see also ; The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in at : "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison *126 walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution. Equally as obvious, the inmate's "status as a prisoner" and the operational realities of a prison dictate restrictions on the associational rights among inmates. Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators. We noted in v. : "[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities." (Footnote omitted.) See also U.S. 319, It is in this context that the claims of the Union must be examined. B State correctional officials uniformly testified that the concept of a prisoners' labor union was itself fraught with potential dangers, whether or not such a union intended, illegally, to press for collective-bargaining recognition.[4] Appellant *127 Ralph Edwards, the Commissioner of the Department of Correction, stated in his affidavit: "The creation of an inmate union will naturally result in increasing the existing friction between inmates and prison personnel. It can also create friction between union inmates and non-union inmates." Appellant David Jones, the Secretary of the Department of Correction, stated: "The existence of a union of inmates can create a divisive element within the inmate population. In a time when the units are already seriously over-crowded, such an element could aggravate already tense conditions. The purpose of the union may well be worthwhile projects. But it is evident that the inmate organizers could, if recognized as spokesman for all inmates, make themselves to be power figures among the inmates. If the union is successful, these inmates would be in a position to misuse their influence. After the inmate union has become established, there would probably be nothing this Department could do to terminate its existence, even if its activities became overtly subversive to the functioning of the Department. Work stoppages and mutinies are easily foreseeable. Riots and chaos would almost inevitably result. Thus, even if the purposes of the union are as stated in the complaint, the potential for a dangerous situation exists, a situation which could not be brought under control." The District Court did not reject these beliefs as fanciful or erroneous. It, instead, noted that they were held "sincerely," and were arguably correct.[5] 409 F. Supp., Without *128 a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be "detrimental to proper penological objectives" or would constitute a "present danger to security and order." -945. Rather, "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this. The District Court, however, gave particular emphasis to what it viewed as appellants' tolerance of membership by inmates in the Union as undermining appellants' position. It viewed a system which permitted inmate "membership" but prohibited inmate-to-inmate solicitation (as well, it should be noted, as meetings, or other group activities) as bordering "on the irrational," and felt that "[t]he defendants' own hypothesis in this case is that the existence of the Union and membership in it are not dangerous, for otherwise they would surely have undertaken to forbid membership." 409 F. Supp., This, however, considerably overstates what appellants' concession as to pure membership entails. Appellants permitted membership because of the reasonable assumption that each individual prisoner could believe what he chose to believe, and that outside individuals should be able to communicate ideas and beliefs to individual inmates. Since a *129 member qua member incurs no dues or obligations—a prisoner apparently may become a member simply by considering himself a member—this position simply reflects the concept that thought control, by means of prohibiting beliefs, would not only be undesirable but impossible. But appellants never acquiesced in, or permitted, group activity of the Union in the nature of a functioning organization of the inmates within the prison, nor did the District Court find that they had. It is clearly not irrational to conclude that individuals may believe what they want, but that concerted group activity, or solicitation therefor, would pose additional and unwarranted problems and frictions in the operation of the State's penal institutions. The ban on inmate solicitation and group meetings, therefore, was rationally related to the reasonable, indeed to the central, objectives of prison administration. Cf. at C The invocation of the First Amendment, whether the asserted rights are speech or associational, does not change this analysis. In a prison context, an inmate does not retain those First Amendment rights that are "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." at Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a "mutual accommodation between institutional needs and objectives [of ] and the provisions of the Constitution that are of general application," this Court has repeatedly recognized the need for major restrictions on a prisoner's rights. See, e. g., ; These restrictions have applied as well *130 where First Amendment values were implicated. See, e. g., v. ; An examination of the potential restrictions on speech or association that have been imposed by the regulations under challenge, demonstrates that the restrictions imposed are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution. To begin with, First Amendment speech rights are barely implicated in this case.[6] Mail rights are not themselves implicated; the only question respecting the mail is that of bulk mailings.[7] The advantages of bulk mailings to inmates by the Union are those of cheaper rates and convenience. While the District Court relied on the cheaper bulk mailing rates in finding an equal protection violation, infra, at 133, it is clear that losing these cost advantages does not *131 fundamentally implicate free speech values. Since other avenues of outside informational flow by the Union remain available, the prohibition on bulk mailing, reasonable in the absence of First Amendment considerations, remains reasonable.[8] Cf. Nor does the prohibition on inmate-to-inmate solicitation of membership trench untowardly on the inmates' First Amendment speech rights. Solicitation of membership itself involves a good deal more than the simple expression of *132 individual views as to the advantages or disadvantages of a union or its views; it is an invitation to collectively engage in a legitimately prohibited activity. If the prison officials are otherwise entitled to control organized union activity within the prison walls, the prohibition on solicitation for such activity is not then made impermissible on account of First Amendment considerations, for such a prohibition is then not only reasonable but necessary. 417 U. S., at First Amendment associational rights, while perhaps more directly implicated by the regulatory prohibitions, likewise must give way to the reasonable considerations of penal management. As already noted, numerous associational rights are necessarily curtailed by the realities of confinement. They may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment. As we noted in "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Appellant prison officials concluded that the presence, perhaps even the objectives, of a prisoners' labor union would be detrimental to order and security in the It is enough to say that they have not been conclusively shown to be wrong in this view. The interest in preserving order and authority in the is self-evident. Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration. 418 U. S., Responsible prison officials must be permitted to take reasonable steps to forestall such a threat, and they must be permitted to act before the *133 time when they can compile a dossier on the eve of a riot.[9] The case of a prisoners' union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone's list of potential trouble spots. If the appellants' views as to the possible detrimental effects of the organizational activities of the Union are reasonable, as we conclude they are, then the regulations are drafted no more broadly than they need be to meet the perceived threat—which stems directly from group meetings and group organizational activities of the Union. Cf. v. -416. When weighed against the First Amendment rights asserted, these institutional reasons are sufficiently weighty to prevail. D The District Court rested on the Equal Protection Clause of the Fourteenth Amendment to strike down appellants' prohibition against the receipt and distribution of bulk mail from the Union as well as the prohibition of Union meetings among the inmates. It felt that this was a denial of equal protection because bulk mailing and meeting rights had been extended to the Jaycees, Alcoholics Anonymous, and the Boy Scouts. The court felt that just as outside the prison, a "government may not pick and choose depending upon its approval or disapproval of the message or purpose of the group," 409 F. Supp., so, too, appellants could not choose among groups without first demonstrating that the activity proscribed is "detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful." This analysis is faulty for two reasons. The District Court *134 erroneously treated this case as if the prison environment were essentially a "public forum." We observed last Term in upholding a ban on political meetings at Fort Dix that a Government enclave such as a military base was not a public forum. We stated, at 838 n. 10: "The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever." A prison may be no more easily converted into a public forum than a military base. Thus appellants need only demonstrate a rational basis for their distinctions between organizational groups. Cf. City of Here, appellants' affidavits indicate exactly why Alcoholics Anonymous and the Jaycees have been allowed to operate within the prison. Both were seen as serving a rehabilitative purpose, working in harmony with the goals and desires of the prison administrators, and both had been determined not to pose any threat to the order or security of the institution.[10] The affidavits indicate that the administrators' *135 view of the Union differed critically in both these respects.[11] Those conclusions are not unreasonable. Prison administrators may surely conclude that the Jaycees and Alcoholics Anonymous differ in fundamental respects from appellee Union, a group with no past to speak of, and with the avowed intent to pursue an adversary relationship with the prison officials. Indeed, it would be enough to distinguish the Union from Alcoholics Anonymous to note that the chartered purpose of *136 the Union, apparently pursued in the prison, was illegal under North Carolina law.[12] Since a prison is most emphatically not a "public forum," these reasonable beliefs of appellants are sufficient, cf. City of The District Court's further requirement of a demonstrable showing that the Union was in fact harmful is inconsistent with the deference federal courts should pay to the informed discretion of prison officials. v. 416 U. S., at It is precisely in matters such as this, the decision as to which of many groups should be allowed to operate within the prison walls, where, confronted with claims based on the Equal Protection Clause, the courts should allow the prison administrators the full latitude of discretion, unless it can be firmly stated that the two groups are so similar that discretion has been abused. That is surely not the case here. There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence. The regulations of appellants challenged in the District Court offended neither the First nor the Fourteenth Amendment, and the judgment of that court holding to the contrary is Reversed. MR.

Justice Rehnquist

majority

Ross v. Moffitt

https://www.courtlistener.com/opinion/109070/ross-v-moffitt/

https://www.courtlistener.com/api/rest/v3/clusters/109070/

1973-142

We are asked in this case to decide whether Douglas v. California, 372 U.S. 353 (1963), which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications *603 for review in this Court. The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[1] I The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both cases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indigency was represented at trial by court-appointed counsel. He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed.[2] At this point the procedural histories of the two cases diverge. Following affirmance of his Mecklenburg Country conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklenburg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971. Relief was denied at that time, and respondent's appeal to the Court *604 of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied. Respondent appealed that denial to the Court of Appeals for the Fourth Circuit. Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent's first appeal. The North Carolina Supreme Court denied certiorari.[3] Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts. After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina. That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit. The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated: "As long as the state provides such procedures and allows other convicted felons to seek access to the *605 higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court."[4] This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals, "[t]he same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals."[5] We granted certiorari, 414 U.S. 1128, to consider the Court of Appeals' decision in light of Douglas v. California, and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits.[6] For the reasons hereafter stated we reverse the Court of Appeals. II This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In Griffin v. Illinois, 351 U.S. 12 (1956), the first of the pertinent cases, the Court had before it an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial.[7] No exception was made for the indigent *606 defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial error. Mr. Justice Frankfurter, who cast the deciding vote, said in his concurring opinion: ". . . Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court." Id., at 22. The Court in Griffin held that this discrimination violated the Fourteenth Amendment. Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. McKane v. Durston, 153 U.S. 684 (1894). The cases encompassed a variety of circumstances but all had a common theme. For example, Lane v. Brown, 372 U.S. 477 (1963), involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U.S. 487 (1963), the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court's conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U.S. 708 (1961), Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in Burns v. Ohio, 360 U.S. 252 (1959), the State of Ohio required a $20 filing fee in *607 order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction. Each of these state-imposed financial barriers to the adjudication of a criminal defendant's appeal was held to violate the Fourteenth Amendment. The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. In Douglas v. California, 372 U.S. 353 (1963), however, a case decided the same day as Lane, supra, and Draper, supra, the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent's access to the appellate system was adequate. The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. It is this decision we are asked to extend today. Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that " `no good whatever could be *608 served by appointment of counsel.' " 372 U.S., at 355. It therefore denied petitioners' request for the appointment of counsel. This Court held unconstitutional California's requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. The Court noted that under this system an indigent's case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary "ex parte examination of the record," id., at 356, but had their arguments presented to the court in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say: "We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction . . . or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an `invidious discrimination.' Williamson v. Lee Optical Co., 348 U.S. 483, 489; Griffin v. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them." Id., at 356-357. The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support *609 being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.[8] Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. "Due process" emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. "Equal protection," on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. We will address these issues separately in the succeeding sections. III Recognition of the due process rationale in Douglas is found both in the Court's opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that "[w]hen an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure." 372 U.S., at 357. Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended *610 consideration, remarking: "The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause." Id., at 363. We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U.S. 335 (1963). But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Id., at 344. By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being "haled into court" *611 by the State and stripped of his presumption of innocence, but rather as a word to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis. IV Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas, for example, stated: "[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." 372 U.S., at 357. (Emphasis in original.) The Court in Burns v. Ohio, stated the issue in the following terms: "[O]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty." 360 U.S., at 257. Despite the tendency of all rights "to declare themselves *612 absolute to their logical extreme,"[9] there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment "does not require absolute equality or precisely equal advantages," San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24 (1973), nor does it require the State to "equalize economic conditions." Griffin v. Illinois, 351 U. S., at 23 (Frankfurter, J., concurring). It does require that the state appellate system be "free of unreasoned distinctions," Rinaldi v. Yeager, 384 U.S. 305, 310 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U.S. 487 (1963). The State cannot adopt procedures which leave an indigent defendant "entirely cut off from any appeal at all," by virtue of his indigency, Lane v. Brown, 372 U. S., at 481 or extend to such indigent defendants merely a "meaningless ritual" while others in better economic circumstances have a "meaningful appeal." Douglas v. California, supra, at 358. The question is not one of absolutes, but one of degrees. In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court. A. The North Carolina appellate system, as are the appellate systems of almost half the States,[10] is multitiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals was *613 created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the caseload previously burdening the Supreme Court. In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals. N. C. Gen. Stat. § 7A-27 (1969 and Supp. 1973). A second appeal of right lies to the Supreme Court in any criminal case "(1) [w]hich directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) [i]n which there is a dissent. . . ." N. C. Gen. Stat. § 7A-30 (1969). All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis. The statute governing discretionary appeals to the Supreme Court is N. C. Gen. Stat. § 7A-31 (1969). This statute provides, in relevant part, that "[i]n any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals." The statute further provides that "[i]f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals." The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards. Subsection (c) of this provision states: "In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the *614 Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court." Appointment of counsel for indigents in North Carolina is governed by N. C. Gen. Stat. § 7A-450 et seq. (1969 and Supp. 1973). These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here,[11] have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Thus North Carolina has followed the mandate of Douglas v. California, supra, and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here. B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had "once been presented by a lawyer and passed upon by an appellate court." Douglas v. California, 372 U. S., *615 at 356. We do not believe that it can be said, therefore, that a defendant in respondent's circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been "a correct adjudication of guilt" in every individual case, see Griffin v. Illinois, 351 U. S., at 18, but rather whether "the subject matter of the appeal has significant public interest," whether "the cause involves legal principles of major significance to the jurisprudence of the State," or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, see Peaseley v. Virginia Iron, Coal & Coke Co., 282 N. C. 585, 194 S.E.2d 133 (1973), since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant's claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review. *616 This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him. An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. We think respondent was given that opportunity under the existing North Carolina system. V Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant's only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This *617 Court's review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review. There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed. The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e. g., Drumm v. California, 373 U.S. 947 (1963); Mooney v. New York, 373 U.S. 947 (1963); Oppenheimer v. California, 374 U.S. 819 (1963). In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to *618 impose such a requirement on the States, and we decline to do so. VI We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court.[12] Our reading *619 of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no right secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review. The judgment of the Court of Appeals' holding to the contrary is Reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

We are asked in this case to decide whether which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications *603 for review in this Court. The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[1] I The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both cases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indigency was represented at trial by court-appointed counsel. He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed.[2] At this point the procedural histories of the two cases diverge. Following affirmance of his Mecklenburg Country conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklenburg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971. Relief was denied at that time, and respondent's appeal to the Court *604 of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied. Respondent appealed that denial to the Court of Appeals for the Fourth Circuit. Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent's first appeal. The North Carolina Supreme Court denied certiorari.[3] Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts. After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina. That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit. The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated: "As long as the state provides such procedures and allows other convicted felons to seek access to the *605 higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court."[4] This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals, "[t]he same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals."[5] We granted certiorari, to consider the Court of Appeals' decision in light of and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits.[6] For the reasons hereafter stated we reverse the Court of Appeals. II This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In the first of the pertinent cases, the Court had before it an rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of only if he procured a transcript of the testimony adduced at his trial.[7] No exception was made for the indigent *606 defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial error. Mr. Justice Frankfurter, who cast the deciding vote, said in his concurring opinion: ". has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Supreme Court." The Court in Griffin held that this discrimination violated the Fourteenth Amendment. Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. The cases encompassed a variety of circumstances but all had a common theme. For example, involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court's conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in the State of Ohio required a $20 filing fee in *607 order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction. Each of these state-imposed financial barriers to the adjudication of a criminal defendant's appeal was held to violate the Fourteenth Amendment. The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. In however, a case decided the same day as and the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent's access to the appellate system was adequate. The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. It is this decision we are asked to extend today. Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The appellate court examined the trial record on its own initiative, following the then-existing rule in and concluded that " `no good whatever could be *608 served by appointment of counsel.' " It therefore denied petitioners' request for the appointment of counsel. This Court held unconstitutional 's requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. The Court noted that under this system an indigent's case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary "ex parte examination of the record," but had their arguments presented to the court in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say: "We need not now decide whether would have to provide counsel for an indigent seeking a discretionary hearing from the Supreme Court after the District Court of Appeal had sustained his conviction or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an `invidious discrimination.' ; Absolute equality is not required; lines can be and are drawn and we often sustain them." -357. The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support *609 being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.[8] Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. "Due process" emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. "Equal protection," on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. We will address these issues separately in the succeeding sections. III Recognition of the due process rationale in Douglas is found both in the Court's opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that "[w]hen an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure." Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended *610 consideration, remarking: "The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause." We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being "haled into court" *611 by the State and stripped of his presumption of innocence, but rather as a word to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis. IV Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas, for example, stated: "[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." (Emphasis in original.) The Court in stated the issue in the following terms: "[O]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty." Despite the tendency of all rights "to declare themselves *612 absolute to their logical extreme,"[9] there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment "does not require absolute equality or precisely equal advantages," San Antonio Independent School nor does it require the State to "equalize economic conditions." It does require that the state appellate system be "free of unreasoned distinctions," and that indigents have an adequate opportunity to present their claims fairly within the adversary system. The State cannot adopt procedures which leave an indigent defendant "entirely cut off from any appeal at all," by virtue of his indigency, or extend to such indigent defendants merely a "meaningless ritual" while others in better economic circumstances have a "meaningful appeal." The question is not one of absolutes, but one of degrees. In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court. A. The North Carolina appellate system, as are the appellate systems of almost half the States,[10] is multitiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals was *613 created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the caseload previously burdening the Supreme Court. In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals. N. C. Gen. Stat. 7A-27 A second appeal of right lies to the Supreme Court in any criminal case "(1) [w]hich directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) [i]n which there is a dissent." N. C. Gen. Stat. 7A-30 (1969). All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis. The statute governing discretionary appeals to the Supreme Court is N. C. Gen. Stat. 7A-31 (1969). This statute provides, in relevant part, that "[i]n any cause in which appeal has been taken to the Court of Appeals the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals." The statute further provides that "[i]f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals." The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards. Subsection (c) of this provision states: "In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the *614 Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court." Appointment of counsel for indigents in North Carolina is governed by N. C. Gen. Stat. 7A-450 et seq. These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here,[11] have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Thus North Carolina has followed the mandate of and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here. B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had "once been presented by a lawyer and passed upon by an appellate court." 372 U. S., *615 We do not believe that it can be said, therefore, that a defendant in respondent's circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been "a correct adjudication of guilt" in every individual case, see but rather whether "the subject matter of the appeal has significant public interest," whether "the cause involves legal principles of major significance to the jurisprudence of the State," or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, see since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant's claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review. *616 This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him. An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. We think respondent was given that opportunity under the existing North Carolina system. V Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant's only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This *617 Court's review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review. There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed. The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e. g., Drumm v. ; ; Oppenheimer v. In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to *618 impose such a requirement on the States, and we decline to do so. VI We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court.[12] Our reading *619 of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no right secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review. The judgment of the Court of Appeals' holding to the contrary is Reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.

Justice Rehnquist

majority

Herrera v. Collins

https://www.courtlistener.com/opinion/112808/herrera-v-collins/

https://www.courtlistener.com/api/rest/v3/clusters/112808/

1992-021

Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January 1982. He unsuccessfully challenged the conviction on direct appeal and state collateral proceedings in the Texas state courts, and in a federal habeas petition. In February 1992-10 years after his conviction — he urged in a second federal habeas petition that he was "actually innocent" of the murder for which he was sentenced to death, and that the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of due process of law therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not. Shortly before 11 p.m. on an evening in late September 1981, the body of Texas Department of Public Safety Officer David Rucker was found by a passer-by on a stretch of highway about six miles east of Los Fresnos, Texas, a few miles north of Brownsville in the Rio Grande Valley. Rucker's body was lying beside his patrol car. He had been shot in the head. At about the same time, Los Fresnos Police Officer Enrique Carrisalez observed a speeding vehicle traveling west towards Los Fresnos, away from the place where Rucker's body had been found, along the same road. Carrisalez, who was accompanied in his patrol car by Enrique Hernandez, turned on his flashing red lights and pursued the speeding *394 vehicle. After the car had stopped briefly at a red light, it signaled that it would pull over and did so. The patrol car pulled up behind it. Carrisalez took a flashlight and walked toward the car of the speeder. The driver opened his door and exchanged a few words with Carrisalez before firing at least one shot at Carrisalez' chest. The officer died nine days later. Petitioner Herrera was arrested a few days after the shootings and charged with the capital murder of both Carrisalez and Rucker. He was tried and found guilty of the capital murder of Carrisalez in January 1982, and sentenced to death. In July 1982, petitioner pleaded guilty to the murder of Rucker. At petitioner's trial for the murder of Carrisalez, Hernandez, who had witnessed Carrisalez' slaying from the officer's patrol car, identified petitioner as the person who had wielded the gun. A declaration by Officer Carrisalez to the same effect, made while he was in the hospital, was also admitted. Through a license plate check, it was shown that the speeding car involved in Carrisalez' murder was registered to petitioner's "live-in" girlfriend. Petitioner was known to drive this car, and he had a set of keys to the car in his pants pocket when he was arrested. Hernandez identified the car as the vehicle from which the murderer had emerged to fire the fatal shot. He also testified that there had been only one person in the car that night. The evidence showed that Herrera's Social Security card had been found alongside Rucker's patrol car on the night he was killed. Splatters of blood on the car identified as the vehicle involved in the shootings, and on petitioner's blue jeans and wallet were identified as type A blood—the same type which Rucker had. (Herrera has type O blood.) Similar evidence with respect to strands of hair found in the car indicated that the hair was Rucker's and not Herrera's. A handwritten letter was also found on the person of petitioner *395 when he was arrested, which strongly implied that he had killed Rucker.[1] Petitioner appealed his conviction and sentence, arguing, among other things, that Hernandez' and Carrisalez' identifications were unreliable and improperly admitted. The Texas Court of Criminal Appeals affirmed, Herrera v. State, 682 S.W.2d 313 (1984), and we denied certiorari, 471 U.S. 1131 (1985). Petitioner's application for state habeas relief was denied. Ex parte Herrera, No. 12,848-02 (Tex. Crim. App., Aug. 2, 1985). Petitioner then filed a federal habeas *396 petition, again challenging the identifications offered against him at trial. This petition was denied, see 904 F.2d 944 (CA5), and we again denied certiorari, 498 U.S. 925 (1990). Petitioner next returned to state court and filed a second habeas petition, raising, among other things, a claim of "actual innocence" based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner's brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul, Senior's former cellmates. Both individuals claimed that Raul, Senior, who died in 1984, had told them that he — and not petitioner — had killed Officers Rucker and Carrisalez.[2] The State District Court denied this application, finding that "no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense." Ex parte Herrera, No. 81—CR-672—C (Tex. 197th Jud. Dist., Jan. 14, 1991), ¶ 35. The Texas Court of Criminal Appeals affirmed, Ex parte Herrera, 819 S.W.2d 528 (1991), and we denied certiorari, Herrera v. Texas, 502 U.S. 1085 (1992). In February 1992, petitioner lodged the instant habeas petition — his second —in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth *397 and Fourteenth Amendments. In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera, Jr., Raul, Senior's son, and Jose Ybarra, Jr., a schoolmate of the Herrera brothers. Raul, Junior, averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul, Junior, was nine years old at the time of the killings. Ybarra alleged that Raul, Senior, told him one summer night in 1983 that he had shot the two police officers.[3] Petitioner alleged that law enforcement officials were aware of this evidence, and had withheld it in violation of Brady v. Maryland, 373 U.S. 83 (1963). The District Court dismissed most of petitioner's claims as an abuse of the writ. No. M-92-30 (SD Tex., Feb. 17, 1992). However, "in order to ensure that Petitioner can assert his constitutional claims and out of a sense of fairness and due process," the District Court granted petitioner's request for a stay of execution so that he could present his claim of actual innocence, along with the Raul, Junior, and Ybarra affidavits, in state court. App. 38-39. Although it initially dismissed petitioner's Brady claim on the ground that petitioner had failed to present "any evidence of withholding exculpatory material by the prosecution," App. 37, the District Court also granted an evidentiary hearing on this claim after reconsideration, id., at 54. The Court of Appeals vacated the stay of execution. 954 F.2d 1029 (CA5 1992). It agreed with the District Court's initial conclusion that there was no evidentiary basis for petitioner's Brady claim, and found disingenuous petitioner's attempt to couch his claim of actual innocence in Brady terms. 954 F.2d, at 1032. Absent an accompanying constitutional violation, the Court of Appeals held that petitioner's claim *398 of actual innocence was not cognizable because, under Townsend v. Sain, 372 U.S. 293, 317 (1963), "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." See 954 F.2d, at 1034.[4] We granted certiorari, 502 U.S. 1085 (1992), and the Texas Court of Criminal Appeals stayed petitioner's execution. We now affirm. Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See United States v. Nobles, 422 U.S. 225, 230 (1975). But the evidence upon which petitioner's claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, "innocence" or "guilt" must be determined in some sort of a judicial proceeding. Petitioner's showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years. A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent *399 person. See, e. g., Coy v. Iowa, 487 U.S. 1012 (1988) (right to confront adverse witnesses); Taylor v. Illinois, 484 U.S. 400 (1988) (right to compulsory process); Strickland v. Washington, 466 U.S. 668 (1984) (right to effective assistance of counsel); Winship, supra (prosecution must prove guilt beyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145 (1968) (right to jury trial); Brady v. Maryland, supra (prosecution must disclose exculpatory evidence); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to assistance of counsel); In re Murchison, 349 U.S. 133, 136 (1955) (right to "fair trial in a fair tribunal"). In capital cases, we have required additional protections because of the nature of the penalty at stake. See, e. g., Beck v. Alabama, 447 U.S. 625 (1980) (jury must be given option of convicting the defendant of a lesser offense). All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that "[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Patterson v. New York, 432 U.S. 197, 208 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law. Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U.S. 600, 610 (1974) ("The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt"). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is "innocent," but, on the *400 contrary, as one who has been convicted by due process of law of two brutal murders. Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence. Tex. Rule App. Proc. 31(a)(1) (1992). The Texas courts have construed this 30-day time limit as jurisdictional. See Beathard v. State, 767 S.W.2d 423, 433 (Tex. Crim. App. 1989); Drew v. State, 743 S.W.2d 207, 222-223 (Tex. Crim. App. 1987). Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear in Townsend v. Sain, supra, at 317 (emphasis added): "Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal ha- beas corpus. " This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact. See, e. g., Moore v. Dempsey, 261 U.S. 86, 87-88 (1923) (Holmes, J.) ("[W]hat we have to deal with [on habeas review] is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved"); *401 Hyde v. Shine, 199 U.S. 62, 84 (1905) ("[I]t is well settled that upon habeas corpus the court will not weigh the evidence") (emphasis in original); Ex parte Terry, 128 U.S. 289, 305 (1888) ("As the writ of habeas corpus does not perform the office of a writ of error or an appeal, [the facts establishing guilt] cannot be re-examined or reviewed in this collateral proceeding") (emphasis in original). More recent authority construing federal habeas statutes speaks in a similar vein. "Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The guilt or innocence determination in state criminal trials is "a decisive and portentous event." Wainwright v. Sykes, 433 U.S. 72, 90 (1977). "Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens." Ibid. Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free standing claims of actual innocence. Our decision in Jackson v. Virginia, 443 U.S. 307 (1979), comes as close to authorizing evidentiary review of a statecourt conviction on federal habeas as any of our cases. There, we held that a federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. But in so holding, we emphasized: "[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable *402 inferences from basic facts to ultimate facts." Id., at 318-319 (citations omitted; emphasis in original). We specifically noted that "the standard announced . . . does not permit a court to make its own subjective determination of guilt or innocence." Id., at 320, n. 13. The type of federal habeas review sought by petitioner here is different in critical respects than that authorized by Jackson. First, the Jackson inquiry is aimed at determining whether there has been an independent constitutional violation—i. e., a conviction based on evidence that fails to meet the Winship standard. Thus, federal habeas courts act in their historic capacity — to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights. Second, the sufficiency of the evidence review authorized by Jackson is limited to "record evidence." 443 U.S., at 318. Jackson does not extend to nonrecord evidence, including newly discovered evidence. Finally, the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit. Petitioner is understandably imprecise in describing the sort of federal relief to which a suitable showing of actual innocence would entitle him. In his brief he states that the federal habeas court should have "an important initial opportunity to hear the evidence and resolve the merits of Petitioner's claim." Brief for Petitioner 42. Acceptance of this view would presumably require the habeas court to hear testimony from the witnesses who testified at trial as well as those who made the statements in the affidavits which petitioner has presented, and to determine anew whether or not petitioner is guilty of the murder of Officer Carrisalez. Indeed, the dissent's approach differs little from that hypothesized here. The dissent would place the burden on petitioner to show that he is "probably" innocent. Post, at 442. Although *403 petitioner would not be entitled to discovery "as a matter of right," the District Court would retain its "discretion to order discovery . . . when it would help the court make a reliable determination with respect to the prisoner's claim." Post, at 444. And although the District Court would not be required to hear testimony from the witnesses who testified at trial or the affiants upon whom petitioner relies, the dissent would allow the District Court to do so "if the petition warrants a hearing." Ibid. At the end of the day, the dissent would have the District Court "make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances," and then "weigh the evidence in favor of the prisoner against the evidence of his guilt." Post, at 443. The dissent fails to articulate the relief that would be available if petitioner were to meets its "probable innocence" standard. Would it be commutation of petitioner's death sentence, new trial, or unconditional release from imprisonment? The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence. Were petitioner to satisfy the dissent's "probable innocence" standard, therefore, the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial. Yet there is no guarantee that the guilt or innocence determination would be any more exact. To the contrary, the passage of time only diminishes the reliability of criminal adjudications. See McCleskey v. Zant, 499 U.S. 467, 491 (1991) ("[W]hen a habeas petitioner succeeds in obtaining a new trial, the `erosion of memory and dispersion of witnesses *404 that occur with the passage of time' prejudice the government and diminish the chances of a reliable criminal adjudication") (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453 (1986) (plurality opinion) (internal quotation marks omitted; citation omitted)); United States v. Smith, 331 U.S. 469, 476 (1947). Under the dissent's approach, the District Court would be placed in the even more difficult position of having to weigh the probative value of "hot" and "cold" evidence on petitioner's guilt or innocence. This is not to say that our habeas jurisprudence casts a blind eye toward innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U.S. 333 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the "equitable discretion" of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons. See McCleskey, supra, at 502. But this body of our habeas jurisprudence makes clear that a claim of "actual innocence" is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. Petitioner in this case is simply not entitled to habeas relief based on the reasoning of this line of cases. For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage of justice exception is available "only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann, supra, at 454 (emphasis added). We have never held that it extends to *405 free standing claims of actual innocence. Therefore, the exception is inapplicable here. Petitioner asserts that this case is different because he has been sentenced to death. But we have "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion). We have, of course, held that the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed. See, e. g., McKoy v. North Carolina, 494 U.S. 433 (1990) (unanimity requirement impermissibly limits jurors' consideration of mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104 (1982) (jury must be allowed to consider all of a capital defendant's mitigating character evidence); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (same). But petitioner's claim does not fit well into the doctrine of these cases, since, as we have pointed out, it is far from clear that a second trial 10 years after the first trial would produce a more reliable result. Perhaps mindful of this, petitioner urges not that he necessarily receive a new trial, but that his death sentence simply be vacated if a federal habeas court deems that a satisfactory showing of "actual innocence" has been made. Tr. of Oral Arg. 19-20. But such a result is scarcely logical; petitioner's claim is not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place. It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison. Petitioner argues that our decision in Ford v. Wainwright, 477 U.S. 399 (1986), supports his position. The plurality in Ford held that, because the Eighth Amendment prohibits the execution of insane persons, certain procedural protections inhere in the sanity determination. "[I]f the Constitution *406 renders the fact or timing of his execution contingent upon establishment of a further fact," Justice Marshall wrote, "then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being." Id., at 411. Because the Florida scheme for determining the sanity of persons sentenced to death failed "to achieve even the minimal degree of reliability," id., at 413, the plurality concluded that Ford was entitled to an evidentiary hearing on his sanity before the District Court. Unlike petitioner here, Ford did not challenge the validity of his conviction. Rather, he challenged the constitutionality of his death sentence in view of his claim of insanity. Because Ford's claim went to a matter of punishment — not guilt — it was properly examined within the purview of the Eighth Amendment. Moreover, unlike the question of guilt or innocence, which becomes more uncertain with time for evidentiary reasons, the issue of sanity is properly considered in proximity to the execution. Finally, unlike the sanity determination under the Florida scheme at issue in Ford, the guilt or innocence determination in our system of criminal justice is made "with the high regard for truth that befits a decision affecting the life or death of a human being." Id., at 411. Petitioner also relies on Johnson v. Mississippi, 486 U.S. 578 (1988), where we held that the Eighth Amendment requires reexamination of a death sentence based in part on a prior felony conviction which was set aside in the rendering State after the capital sentence was imposed. There, the State insisted that it was too late in the day to raise this point. But we pointed out that the Mississippi Supreme Court had previously considered similar claims by writ of error coram nobis. Thus, there was no need to override state law relating to newly discovered evidence in order to consider Johnson's claim on the merits. Here, there is no doubt that petitioner seeks additional process — an evidentiary hearing on his claim of "actual innocence" based on *407 newly discovered evidence — which is not available under Texas law more than 30 days after imposition or suspension of sentence. Tex. Rule App. Proc. 31(a)(1) (1992).[5] Alternatively, petitioner invokes the Fourteenth Amendment's guarantee of due process of law in support of his claim that his showing of actual innocence entitles him to a new trial, or at least to a vacation of his death sentence.[6] "[B]ecause the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition," we have "exercis[ed] substantial deference to legislative judgments in this area." Medina v. California, 505 U.S. 437, 445-446 (1992). Thus, we have found criminal process lacking only where it "`offends some principle of justice so rooted in the traditions and *408 conscience of our people as to be ranked as fundamental' " Ibid. (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). "Historical practice is probative of whether a procedural rule can be characterized as fundamental." 505 U.S., at 446. The Constitution itself, of course, makes no mention of new trials. New trials in criminal cases were not granted in England until the end of the 17th century. And even then, they were available only in misdemeanor cases, though the writ of error coram nobis was available for some errors of fact in felony cases. Orfield, New Trial in Federal Criminal Cases, 2 Vill. L. Rev. 293, 304 (1957). The First Congress provided for new trials for "reasons for which new trials have usually been granted in courts of law." Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83. This rule was early held to extend to criminal cases. See Sparf v. United States, 156 U.S. 51, 175 (1895) (Gray, J., dissenting) (citing cases). One of the grounds upon which new trials were granted was newly discovered evidence. See F. Wharton, Criminal Pleading and Practice §§ 854-874, pp. 584-592 (8th ed. 1880). The early federal cases adhere to the common-law rule that a new trial may be granted only during the term of court in which the final judgment was entered. See, e. g., United States v. Mayer, 235 U.S. 55, 67 (1914); United States v. Simmons, 27 F. Cas. 1080 (No. 16,289) (CC EDNY 1878). Otherwise, "the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors." 235 U.S., at 67. In 1934, this Court departed from the common-law rule and adopted a time limit—60 days after final judgment — for filing new trial motions based on newly discovered evidence. Rule II(3), Criminal Rules of Practice and Procedure, 292 U.S. 659, 662. Four years later, we amended Rule II(3) to allow such motions in capital cases "at any time" before the execution took place. 304 U.S. 592 (1938) (codified at 18 U.S. C. § 688 (1940)). *409 There ensued a debate as to whether this Court should abolish the time limit for filing new trial motions based on newly discovered evidence to prevent a miscarriage of justice, or retain a time limit even in capital cases to promote finality. See Orfield, supra, at 299-304. In 1946, we set a 2-year time limit for filing new trial motions based on newly discovered evidence and abolished the exception for capital cases. Rule 33, Federal Rules of Criminal Procedure, 327 U.S. 821, 855-856 ("A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment").[7] We have strictly construed the Rule 33 time limits. Cf. United States v. Smith, 331 U.S. 469, 473 (1947). And the Rule's treatment of new trials based on newly discovered evidence has not changed since its adoption. The American Colonies adopted the English common law on new trials. Riddell, New Trial in Present Practice, 27 Yale L. J. 353, 360 (1917). Thus, where new trials were available, motions for such relief typically had to be filed before the expiration of the term during which the trial was held. H. Underhill, Criminal Evidence 579, n. 1 (1898); J. Bassett, Criminal Pleading and Practice 313 (1885). Over time, many States enacted statutes providing for new trials *410 in all types of cases. Some States also extended the time period for filing new trial motions beyond the term of court, but most States required that such motions be made within a few days after the verdict was rendered or before the judgment was entered. See American Law Institute Code of Criminal Procedure 1040-1042 (Official Draft 1931) (reviewing contemporary new trials rules). The practice in the States today, while of limited relevance to our historical inquiry, is divergent. Texas is one of 17 States that requires a new trial motion based on newly discovered evidence to be made within 60 days of judgment.[8] One State adheres to the common-law rule and requires that such a motion be filed during the term in which judgment was rendered.[9] Eighteen jurisdictions have time limits ranging between one and three years, with 10 States and the District of Columbia following the 2-year federal time limit.[10]*411 Only 15 States allow a new trial motion based on newly discovered evidence to be filed more than three years after conviction. Of these States, four have waivable time limits of less than 120 days, two have waivable time limits of more than 120 days, and nine States have no time limits.[11] In light of the historical availability of new trials, our own amendments to Rule 33, and the contemporary practice in the States, we cannot say that Texas' refusal to entertain petitioner's newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness "rooted in the traditions and conscience of our people." Patterson v. New York, 432 U. S., at 202 (internal quotation marks and citations omitted). This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. See Tex. Const., Art. IV, § 11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon 1979). Clemency[12] is deeply rooted in our Anglo-American tradition *412 of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.[13] In England, the clemency power was vested in the Crown and can be traced back to the 700's. W. Humbert, The Pardoning Power of the President 9 (1941). Blackstone thought this "one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment." 4 W. Blackstone, Commentaries *397. Clemency provided the principal avenue of relief for individuals convicted of criminal offenses — most of which were capital — because there was no right of appeal until 1907. 1 L. Radzinowicz, A History of English Criminal Law 122 (1948). It was the only means by which one could challenge his conviction on the ground of innocence. United States Dept. of Justice, 3 Attorney General's Survey of Release Procedures 73 (1939). Our Constitution adopts the British model and gives to the President the "Power to grant Reprieves and Pardons for Offences against the United States." Art. II, § 2, cl. 1. In *413 United States v. Wilson, 7 Pet. 150, 160-161 (1833), Chief Justice Marshall expounded on the President's pardon power: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages." See also Ex parte Garland, 4 Wall. 333, 380-381 (1867); The Federalist No. 74, pp. 447-449 (C. Rossiter ed. 1961) (A. Hamilton) ("The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions *414 in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel"). Of course, although the Constitution vests in the President a pardon power, it does not require the States to enact a clemency mechanism. Yet since the British Colonies were founded, clemency has been available in America. C. Jensen, The Pardoning Power in the American States 3-4 (1922). The original States were reluctant to vest the clemency power in the executive. And although this power has gravitated toward the executive over time, several States have split the clemency power between the Governor and an advisory board selected by the legislature. See Survey of Release Procedures, supra, at 91-98. Today, all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency.[14] *415 Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. In his classic work, Professor Edwin Borchard compiled 65 cases in which it was later determined that individuals had been wrongfully convicted of crimes. Clemency provided the relief mechanism in 47 of these cases; the remaining cases ended in judgments of acquittals after new trials. E. Borchard, Convicting the Innocent (1932). Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of "actual innocence" have been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356 (1992).[15] *416 In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const., Art. IV, § 11; Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon 1979). The board's consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for a full pardon, Tex. Admin. Code, Tit. 37, § 143.1 (West Supp. 1992), a commutation of death sentence to life imprisonment or appropriate maximum penalty, § 143.57, or a reprieve of execution, § 143.43. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days. § 143.41(a). The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will entertain applications for a recommendation of full pardon because of innocence upon receipt of the following: "(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based." § 143.2. In this case, petitioner has apparently sought a 30day reprieve from the Governor, but has yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise. Tr. of Oral Arg. 7, 34. As the foregoing discussion illustrates, in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant. Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of "actual innocence," not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas *417 petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency. We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold. Petitioner's newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. See Orfield, 2 Vill. L. Rev., at 333. Petitioner's affidavits are particularly suspect in this regard because, with the exception of Raul Herrera, Jr.'s affidavit, they consist of hearsay. Likewise, in reviewing petitioner's new evidence, we are mindful that defendants often abuse new trial motions "as a method of delaying enforcement of just sentences." United States v. Johnson, 327 U.S. 106, 112 (1946). Although we are not presented with a new trial motion per se, we believe the likelihood of abuse is as great — or greater — here. The affidavits filed in this habeas proceeding were given over eight years after petitioner's trial. No satisfactory explanation has been given as to why the affiants waited until the 11th hour—and, indeed, until after the alleged perpetrator *418 of the murders himself was dead — to make their statements. Cf. Taylor v. Illinois, 484 U. S., at 414 ("[I]t is . .. reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed"). Equally troubling, no explanation has been offered as to why petitioner, by hypothesis an innocent man, pleaded guilty to the murder of Rucker. Moreover, the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed. For instance, the affidavit of Raul, Junior, who was nine years old at the time, indicates that there were three people in the speeding car from which the murderer emerged, whereas Hector Villarreal attested that Raul, Senior, told him that there were two people in the car that night. Of course, Hernandez testified at petitioner's trial that the murderer was the only occupant of the car. The affidavits also conflict as to the direction in which the vehicle was heading when the murders took place and petitioner's whereabouts on the night of the killings. Finally, the affidavits must be considered in light of the proof of petitioner's guilt at trial — proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions. See supra, at 393-395, and n. 1. That proof, even when considered alongside petitioner's belated affidavits, points strongly to petitioner's guilt. This is not to say that petitioner's affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls *419 far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist. The judgment of the Court of Appeals is Affirmed.

Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January 182. He unsuccessfully challenged the conviction on direct appeal and state collateral proceedings in the Texas state courts, and in a federal habeas petition. In February -10 years after his conviction — he urged in a second federal habeas petition that he was "actually innocent" of the murder for which he was sentenced to death, and that the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of due process of law therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not. Shortly before 11 p.m. on an evening in late September 181, the body of Texas Department of Public Safety Officer David Rucker was found by a passer-by on a stretch of highway about six miles east of Los Fresnos, Texas, a few miles north of Brownsville in the Rio Grande Valley. Rucker's body was lying beside his patrol car. He had been shot in the head. At about the same time, Los Fresnos Police Officer Enrique Carrisalez observed a speeding vehicle traveling west towards Los Fresnos, away from the place where Rucker's body had been found, along the same road. Carrisalez, who was accompanied in his patrol car by Enrique Hernandez, turned on his flashing red lights and pursued the speeding *34 vehicle. After the car had stopped briefly at a red light, it signaled that it would pull over and did so. The patrol car pulled up behind it. Carrisalez took a flashlight and walked toward the car of the speeder. The driver opened his door and exchanged a few words with Carrisalez before firing at least one shot at Carrisalez' chest. The officer died nine days later. Petitioner Herrera was arrested a few days after the shootings and charged with the capital murder of both Carrisalez and Rucker. He was tried and found guilty of the capital murder of Carrisalez in January 182, and sentenced to death. In July 182, petitioner pleaded guilty to the murder of Rucker. At petitioner's trial for the murder of Carrisalez, Hernandez, who had witnessed Carrisalez' slaying from the officer's patrol car, identified petitioner as the person who had wielded the gun. A declaration by Officer Carrisalez to the same effect, made while he was in the hospital, was also admitted. Through a license plate check, it was shown that the speeding car involved in Carrisalez' murder was registered to petitioner's "live-in" girlfriend. Petitioner was known to drive this car, and he had a set of keys to the car in his pants pocket when he was arrested. Hernandez identified the car as the vehicle from which the murderer had emerged to fire the fatal shot. He also testified that there had been only one person in the car that night. The evidence showed that Herrera's Social Security card had been found alongside Rucker's patrol car on the night he was killed. Splatters of blood on the car identified as the vehicle involved in the shootings, and on petitioner's blue jeans and wallet were identified as type A blood—the same type which Rucker had. (Herrera has type O blood.) Similar evidence with respect to strands of hair found in the car indicated that the hair was Rucker's and not Herrera's. A handwritten letter was also found on the person of petitioner *35 when he was arrested, which strongly implied that he had killed Rucker.[1] Petitioner appealed his conviction and sentence, arguing, among other things, that Hernandez' and Carrisalez' identifications were unreliable and improperly admitted. The Texas Court of Criminal Appeals affirmed, and we denied certiorari, Petitioner's application for state habeas relief was denied. Ex parte Herrera, No. 12,8-02 Petitioner then filed a federal habeas *36 petition, again challenging the identifications offered against him at trial. This petition was denied, see (CA5), and we again denied certiorari, Petitioner next returned to state court and filed a second habeas petition, raising, among other things, a claim of "actual innocence" based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner's brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul, Senior's former cellmates. Both individuals claimed that Raul, Senior, who died in had told them that he — and not petitioner — had killed Officers Rucker and Carrisalez.[2] The State District Court denied this application, finding that "no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense." Ex parte Herrera, No. 81—CR-2—C ¶ 35. The Texas Court of Criminal Appeals affirmed, Ex parte Herrera, and we denied certiorari, In February petitioner lodged the instant habeas petition — his second —in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth *37 and Fourteenth Amendments. In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera, Jr., Raul, Senior's son, and Jose Ybarra, Jr., a schoolmate of the Herrera brothers. Raul, Junior, averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul, Junior, was nine years old at the time of the killings. Ybarra alleged that Raul, Senior, told him one summer night in 183 that he had shot the two police officers.[3] Petitioner alleged that law enforcement officials were aware of this evidence, and had withheld it in violation of The District Court dismissed most of petitioner's claims as an abuse of the writ. No. M-2-30 However, "in order to ensure that Petitioner can assert his constitutional claims and out of a sense of fairness and due process," the District Court granted petitioner's request for a stay of execution so that he could present his claim of actual innocence, along with the Raul, Junior, and Ybarra affidavits, in state court. App. 38-3. Although it initially dismissed petitioner's Brady claim on the ground that petitioner had failed to present "any evidence of withholding exculpatory material by the prosecution," App. 37, the District Court also granted an evidentiary hearing on this claim after reconsideration, The Court of Appeals vacated the stay of execution. It agreed with the District Court's initial conclusion that there was no evidentiary basis for petitioner's Brady claim, and found disingenuous petitioner's attempt to couch his claim of actual innocence in Brady Absent an accompanying constitutional violation, the Court of Appeals held that petitioner's claim *38 of actual innocence was not cognizable because, under "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." See[4] We granted certiorari, and the Texas Court of Criminal Appeals stayed petitioner's execution. We now affirm. Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See United But the evidence upon which petitioner's claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, "innocence" or "guilt" must be determined in some sort of a judicial proceeding. Petitioner's showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years. A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent *3 person. See, e. g., ; ; ; ; ; ; ; In re Murchison, In capital cases, we have required additional protections because of the nature of the penalty at stake. See, e. g., All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that "[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." To conclude otherwise would all but paralyze our system for enforcement of the criminal law. Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is "innocent," but, on the *400 contrary, as one who has been convicted by due process of law of two brutal murders. Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence. Tex. Rule App. Proc. 31(a)(1) The Texas courts have construed this 30-day time limit as jurisdictional. See ; Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear in at : "Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal ha- beas corpus. " This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact. See, e. g., ("[W]hat we have to deal with [on habeas review] is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved"); *401 (emphasis in original); Ex parte Terry, (emphasis in original). More recent authority construing federal habeas statutes speaks in a similar vein. "Federal courts are not forums in which to relitigate state trials." The guilt or innocence determination in state criminal trials is "a decisive and portentous event." U.S. 72, "Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens." Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free standing claims of actual innocence. Our decision in comes as close to authorizing evidentiary review of a statecourt conviction on federal habeas as any of our cases. There, we held that a federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. But in so holding, we emphasized: "[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable *402 inferences from basic facts to ultimate facts." We specifically noted that "the standard announced does not permit a court to make its own subjective determination of guilt or innocence." The type of federal habeas review sought by petitioner here is different in critical respects than that authorized by Jackson. First, the Jackson inquiry is aimed at determining whether there has been an independent constitutional violation—i. e., a conviction based on evidence that fails to meet the standard. Thus, federal habeas courts act in their historic capacity — to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights. Second, the sufficiency of the evidence review authorized by Jackson is limited to "record evidence." Jackson does not extend to nonrecord evidence, including newly discovered evidence. Finally, the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit. Petitioner is understandably imprecise in describing the sort of federal relief to which a suitable showing of actual innocence would entitle him. In his brief he states that the federal habeas court should have "an important initial opportunity to hear the evidence and resolve the merits of Petitioner's claim." Brief for Petitioner 42. Acceptance of this view would presumably require the habeas court to hear testimony from the witnesses who testified at trial as well as those who made the statements in the affidavits which petitioner has presented, and to determine anew whether or not petitioner is guilty of the murder of Officer Carrisalez. Indeed, the dissent's approach differs little from that hypothesized here. The dissent would place the burden on petitioner to show that he is "probably" innocent. Post, at 442. Although *403 petitioner would not be entitled to discovery "as a matter of right," the District Court would retain its "discretion to order discovery when it would help the court make a reliable determination with respect to the prisoner's claim." Post, at 444. And although the District Court would not be required to hear testimony from the witnesses who testified at trial or the affiants upon whom petitioner relies, the dissent would allow the District Court to do so "if the petition warrants a hearing." At the end of the day, the dissent would have the District Court "make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances," and then "weigh the evidence in favor of the prisoner against the evidence of his guilt." Post, at 443. The dissent fails to articulate the relief that would be available if petitioner were to meets its "probable innocence" standard. Would it be commutation of petitioner's death sentence, new trial, or unconditional release from imprisonment? The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence. Were petitioner to satisfy the dissent's "probable innocence" standard, therefore, the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial. Yet there is no guarantee that the guilt or innocence determination would be any more exact. To the contrary, the passage of time only diminishes the reliability of criminal adjudications. See (internal quotation marks omitted; citation omitted)); United Under the dissent's approach, the District Court would be placed in the even more difficult position of having to weigh the probative value of "hot" and "cold" evidence on petitioner's guilt or innocence. This is not to say that our habeas jurisprudence casts a blind eye toward innocence. In a series of cases culminating with decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the "equitable discretion" of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons. See But this body of our habeas jurisprudence makes clear that a claim of "actual innocence" is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. Petitioner in this case is simply not entitled to habeas relief based on the reasoning of this line of cases. For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage of justice exception is available "only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann, We have never held that it extends to *405 free standing claims of actual innocence. Therefore, the exception is inapplicable here. Petitioner asserts that this case is different because he has been sentenced to death. But we have "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." We have, of course, held that the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed. See, e. g., 44 U.S. ; (182) ; (178) (same). But petitioner's claim does not fit well into the doctrine of these cases, since, as we have pointed out, it is far from clear that a second trial 10 years after the first trial would produce a more reliable result. Perhaps mindful of this, petitioner urges not that he necessarily receive a new trial, but that his death sentence simply be vacated if a federal habeas court deems that a satisfactory showing of "actual innocence" has been made. Tr. of Oral Arg. 1-20. But such a result is scarcely logical; petitioner's claim is not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place. It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison. Petitioner argues that our decision in 477 U.S. 3 supports his position. The plurality in Ford held that, because the Eighth Amendment prohibits the execution of insane persons, certain procedural protections inhere in the sanity determination. "[I]f the Constitution *406 renders the fact or timing of his execution contingent upon establishment of a further fact," Justice Marshall wrote, "then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being." Because the Florida scheme for determining the sanity of persons sentenced to death failed "to achieve even the minimal degree of reliability," the plurality concluded that Ford was entitled to an evidentiary hearing on his sanity before the District Court. Unlike petitioner here, Ford did not challenge the validity of his conviction. Rather, he challenged the constitutionality of his death sentence in view of his claim of insanity. Because Ford's claim went to a matter of punishment — not guilt — it was properly examined within the purview of the Eighth Amendment. Moreover, unlike the question of guilt or innocence, which becomes more uncertain with time for evidentiary reasons, the issue of sanity is properly considered in proximity to the execution. Finally, unlike the sanity determination under the Florida scheme at issue in Ford, the guilt or innocence determination in our system of criminal justice is made "with the high regard for truth that befits a decision affecting the life or death of a human being." Petitioner also relies on where we held that the Eighth Amendment requires reexamination of a death sentence based in part on a prior felony conviction which was set aside in the rendering State after the capital sentence was imposed. There, the State insisted that it was too late in the day to raise this point. But we pointed out that the Mississippi Supreme Court had previously considered similar claims by writ of error coram nobis. Thus, there was no need to override state law relating to newly discovered evidence in order to consider Johnson's claim on the merits. Here, there is no doubt that petitioner seeks additional process — an evidentiary hearing on his claim of "actual innocence" based on *407 newly discovered evidence — which is not available under Texas law more than 30 days after imposition or suspension of sentence. Tex. Rule App. Proc. 31(a)(1)[5] Alternatively, petitioner invokes the Fourteenth Amendment's guarantee of due process of law in support of his claim that his showing of actual innocence entitles him to a new trial, or at least to a vacation of his death sentence.[6] "[B]ecause the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition," we have "exercis[ed] substantial deference to legislative judgments in this area." Thus, we have found criminal process lacking only where it "`offends some principle of justice so rooted in the traditions and *408 conscience of our people as to be ranked as fundamental' " ). "Historical practice is probative of whether a procedural rule can be characterized as fundamental." The Constitution itself, of course, makes no mention of new trials. New trials in criminal cases were not granted in England until the end of the 17th century. And even then, they were available only in misdemeanor cases, though the writ of error coram nobis was available for some errors of fact in felony cases. New Trial in Federal Criminal Cases, 2 Vill. L. Rev. 23, (157). The First Congress provided for new trials for "reasons for which new trials have usually been granted in courts of law." Act of Sept. 24, 178, ch. 20, 17, This rule was early held to extend to criminal cases. See (185) (citing cases). One of the grounds upon which new trials were granted was newly discovered evidence. See F. Wharton, Criminal Pleading and Practice 854-874, pp. 5-52 (8th ed. 1880). The early federal cases adhere to the common-law rule that a new trial may be granted only during the term of court in which the final judgment was entered. See, e. g., United (114); United (No. 16,28) (CC EDNY 1878). Otherwise, "the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors." 235 U.S., at In 134, this Court departed from the common-law rule and adopted a time limit—60 days after final judgment — for filing new trial motions based on newly discovered evidence. Rule II(3), Criminal Rules of Practice and Procedure, 22 U.S. 65, Four years later, we amended Rule II(3) to allow such motions in capital cases "at any time" before the execution took place. U.S. 52 (138) (codified at 18 U.S. C. 688 (140)). *40 There ensued a debate as to whether this Court should abolish the time limit for filing new trial motions based on newly discovered evidence to prevent a miscarriage of justice, or retain a time limit even in capital cases to promote finality. See at 2-. In 146, we set a 2-year time limit for filing new trial motions based on newly discovered evidence and abolished the exception for capital cases. Rule 33, Federal Rules of Criminal Procedure, ("A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment").[7] We have strictly construed the Rule 33 time limits. Cf. United And the Rule's treatment of new trials based on newly discovered evidence has not changed since its adoption. The American Colonies adopted the English common law on new trials. Riddell, New Trial in Present Practice, 27 Yale L. J. 353, 360 (117). Thus, where new trials were available, motions for such relief typically had to be filed before the expiration of the term during which the trial was held. H. Underhill, Criminal Evidence 57, n. 1 (188); J. Bassett, Criminal Pleading and Practice 313 (1885). Over time, many States enacted statutes providing for new trials *410 in all types of cases. Some States also extended the time period for filing new trial motions beyond the term of court, but most States required that such motions be made within a few days after the verdict was rendered or before the judgment was entered. See American Law Institute Code of Criminal Procedure 1040-1042 (Official Draft 131) (reviewing contemporary new trials rules). The practice in the States today, while of limited relevance to our historical inquiry, is divergent. Texas is one of 17 States that requires a new trial motion based on newly discovered evidence to be made within 60 days of judgment.[8] One State adheres to the common-law rule and requires that such a motion be filed during the term in which judgment was rendered.[] Eighteen jurisdictions have time limits ranging between one and three years, with 10 States and the District of Columbia following the 2-year federal time limit.[10]*411 Only 15 States allow a new trial motion based on newly discovered evidence to be filed more than three years after conviction. Of these States, four have waivable time limits of less than 120 days, two have waivable time limits of more than 120 days, and nine States have no time limits.[11] In light of the historical availability of new trials, our own amendments to Rule 33, and the contemporary practice in the States, we cannot say that Texas' refusal to entertain petitioner's newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness "rooted in the traditions and conscience of our people." 432 U. S., at This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. See Tex. Const., Art. IV, 11; Tex. Code Crim. Proc. Ann., Art. 48.01 Clemency[12] is deeply rooted in our Anglo-American tradition *412 of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.[13] In England, the clemency power was vested in the Crown and can be traced back to the 700's. W. Humbert, The Pardoning Power of the President (141). Blackstone thought this "one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment." 4 W. Blackstone, Commentaries *37. Clemency provided the principal avenue of relief for individuals convicted of criminal offenses — most of which were capital — because there was no right of appeal until 17. 1 L. Radzinowicz, A History of English Criminal Law 122 (148). It was the only means by which one could challenge his conviction on the ground of innocence. United States Dept. of Justice, 3 Attorney General's Survey of Release 73 (13). Our Constitution adopts the British model and gives to the President the "Power to grant Reprieves and Pardons for Offences against the United States." Art. II, 2, cl. 1. In *413 United Chief Justice Marshall expounded on the President's pardon power: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages." See also Ex parte Garland, (18); The Federalist No. 74, pp. 447-44 (C. Rossiter ed. 161) (A. Hamilton) ("The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions *414 in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel"). Of course, although the Constitution vests in the President a pardon power, it does not require the States to enact a clemency mechanism. Yet since the British Colonies were founded, clemency has been available in America. C. Jensen, The Pardoning Power in the American States 3-4 (122). The original States were reluctant to vest the clemency power in the executive. And although this power has gravitated toward the executive over time, several States have split the clemency power between the Governor and an advisory board selected by the legislature. See Survey of Release at 1-8. Today, all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency.[14] *415 Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. In his classic work, Professor Edwin Borchard compiled 65 cases in which it was later determined that individuals had been wrongfully convicted of crimes. Clemency provided the relief mechanism in 47 of these cases; the remaining cases ended in judgments of acquittals after new trials. E. Borchard, Convicting the Innocent (132). Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of "actual innocence" have been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356[15] *416 In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const., Art. IV, 11; Tex. Code Crim. Proc. Ann., Art. 48.01 The board's consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for a full pardon, Tex. Admin. Code, Tit. 37, 143.1 a commutation of death sentence to life imprisonment or appropriate maximum penalty, 143.57, or a reprieve of execution, 143.43. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days. 143.41(a). The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will entertain applications for a recommendation of full pardon because of innocence upon receipt of the following: "(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based." 143.2. In this case, petitioner has apparently sought a 30day reprieve from the Governor, but has yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise. Tr. of Oral Arg. 7, 34. As the foregoing discussion illustrates, in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant. Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of "actual innocence," not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas *417 petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency. We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold. Petitioner's newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. See Petitioner's affidavits are particularly suspect in this regard because, with the exception of Raul Herrera, Jr.'s affidavit, they consist of hearsay. Likewise, in reviewing petitioner's new evidence, we are mindful that defendants often abuse new trial motions "as a method of delaying enforcement of just sentences." United (146). Although we are not presented with a new trial motion per se, we believe the likelihood of abuse is as great — or greater — here. The affidavits filed in this habeas proceeding were given over eight years after petitioner's trial. No satisfactory explanation has been given as to why the affiants waited until the 11th hour—and, indeed, until after the alleged perpetrator *418 of the murders himself was dead — to make their statements. Cf. 4 U. S., at 414 Equally troubling, no explanation has been offered as to why petitioner, by hypothesis an innocent man, pleaded guilty to the murder of Rucker. Moreover, the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed. For instance, the affidavit of Raul, Junior, who was nine years old at the time, indicates that there were three people in the speeding car from which the murderer emerged, whereas Hector Villarreal attested that Raul, Senior, told him that there were two people in the car that night. Of course, Hernandez testified at petitioner's trial that the murderer was the only occupant of the car. The affidavits also conflict as to the direction in which the vehicle was heading when the murders took place and petitioner's whereabouts on the night of the killings. Finally, the affidavits must be considered in light of the proof of petitioner's guilt at trial — proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions. See at 33-35, and n. 1. That proof, even when considered alongside petitioner's belated affidavits, points strongly to petitioner's guilt. This is not to say that petitioner's affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls *41 far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist. The judgment of the Court of Appeals is Affirmed.

Justice Stevens

dissenting

United States v. Gonzales

https://www.courtlistener.com/opinion/118091/united-states-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/118091/

1996-032

This case arose out of a criminal enterprise that violated both New Mexico law and federal law and gave rise to both state and federal prosecutions. It raises a narrow but important question concerning the scope of the prohibition against concurrent sentences contained in 18 U.S. C. § 924(c)(1). As the Government reads that provision, it prohibits the § 924(c) sentence from running concurrently with a state sentence that has already been imposed, but permits concurrent state and federal sentences when the federal prosecution precedes the state prosecution.[1] Thus, the length of the total term of imprisonment—including both the state sentence and the federal sentence—is determined, in part, by the happenstance of which case is tried first. Read literally, however, the text of § 924(c)(1) would avoid this anomalous result. Because the text broadly prohibits the § 924(c) sentence from running "concurrently with any other term of imprisonment" regardless of whether that other term is imposed before or after the federal sentence, if the statute is read literally, it would require state judges to make any state term of imprisonment run consecutively to the § 924(c) sentence. Alternatively, if the state trial follows the federal trial and the state judge imposes a concurrent sentence (because she does not read § 924(c) as having any applicability to state sentences), the literal text would require the federal authorities to suspend the § 924(c) sentence until the state sentence has been served. By relying so heavily on pure textual analysis, the Court's opinion would appear to dictate this result. Like the Government, however, I do not think the statute can reasonably be interpreted as containing any command to state sentencing judges or as requiring the suspension of any federal sentences when concurrent state sentences are later imposed. *13 Thus, common sense requires us to reject a purely literal reading of the text. The question that then arises is which is the better of two plausible nonliteral readings. Should the term "any other term of imprisonment" be narrowed by reading it to cover only "any other term of imprisonment that has already been imposed, " as the Government argues, or "any other federal term of imprisonment," as respondents contend? For three reasons, I think it more likely that Congress intended the latter interpretation. First, it borders on the irrational to assume that Congress would actually intend the severity of the defendant's punishment in a case of this kind to turn on the happenstance of whether the state or the federal prosecution was concluded first. Respondents' reading of the statute avoids that anomaly. Second, when § 924(c) was amended in 1970 to prohibit concurrent sentences, see Title II, Omnibus Crime Control Act of 1970, 84 Stat. 1889, this prohibition applied only to the federal sentence imposed for the underlying offense. When Congress amended the statute in 1984 to broaden the prohibition beyond the underlying offense, it said nothing about state sentences; if Congress had intended the amendment to apply to state as well as federal sentences, I think there would have been some mention of this important change in the legislative history.[2] Furthermore, the 1984 amendment was part of a general revision of sentencing laws that sought to achieve more uniformity and predictability in federal sentencing. See Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U.S. C. § 3551 et seq. The anomaly that the Government's reading of § 924(c) authorizes is inconsistent with the basic uniformity theme of the 1984 legislation. Finally, the context *14 in which the relevant language appears is concerned entirely with federal sentencing. Indeed, the word "any" as used earlier in the section unquestionably has the meaning "any federal."[3] Given the Government's recognition of the fact that a completely literal reading of § 924(c)(1) is untenable, and the further fact that the Court offers nothing more than the dictionary definition of the word "any" to support its result, I think the wiser course is to interpret that word in the prohibition against concurrent sentences as having the same meaning as when the same word is first used in the statute. Accordingly, I respectfully dissent.

This case arose out of a criminal enterprise that violated both New Mexico law and federal law and gave rise to both state and federal prosecutions. It raises a narrow but important question concerning the scope of the prohibition against concurrent sentences contained in 18 U.S. C. 924(c)(1). As the Government reads that provision, it prohibits the 924(c) sentence from running concurrently with a state sentence that has already been imposed, but permits concurrent state and federal sentences when the federal prosecution precedes the state prosecution.[1] Thus, the length of the total term of imprisonment—including both the state sentence and the federal sentence—is determined, in part, by the happenstance of which case is tried first. Read literally, however, the text of 924(c)(1) would avoid this anomalous result. Because the text broadly prohibits the 924(c) sentence from running "concurrently with any other term of imprisonment" regardless of whether that other term is imposed before or after the federal sentence, if the statute is read literally, it would require state judges to make any state term of imprisonment run consecutively to the 924(c) sentence. Alternatively, if the state trial follows the federal trial and the state judge imposes a concurrent sentence (because she does not read 924(c) as having any applicability to state sentences), the literal text would require the federal authorities to suspend the 924(c) sentence until the state sentence has been served. By relying so heavily on pure textual analysis, the Court's opinion would appear to dictate this result. Like the Government, however, I do not think the statute can reasonably be interpreted as containing any command to state sentencing judges or as requiring the suspension of any federal sentences when concurrent state sentences are later imposed. *13 Thus, common sense requires us to reject a purely literal reading of the text. The question that then arises is which is the better of two plausible nonliteral readings. Should the term "any other term of imprisonment" be narrowed by reading it to cover only "any other term of imprisonment that has already been imposed, " as the Government argues, or "any other federal term of imprisonment," as respondents contend? For three reasons, I think it more likely that Congress intended the latter interpretation. First, it borders on the irrational to assume that Congress would actually intend the severity of the defendant's punishment in a case of this kind to turn on the happenstance of whether the state or the federal prosecution was concluded first. Respondents' reading of the statute avoids that anomaly. Second, when 924(c) was amended in 1970 to prohibit concurrent sentences, see Title II, Omnibus Crime Control Act of 1970, this prohibition applied only to the federal sentence imposed for the underlying offense. When Congress amended the statute in 1984 to broaden the prohibition beyond the underlying offense, it said nothing about state sentences; if Congress had intended the amendment to apply to state as well as federal sentences, I think there would have been some mention of this important change in the legislative history.[2] Furthermore, the 1984 amendment was part of a general revision of sentencing laws that sought to achieve more uniformity and predictability in federal sentencing. See Sentencing Reform Act of 1984, 18 U.S. C. 3551 et seq. The anomaly that the Government's reading of 924(c) authorizes is inconsistent with the basic uniformity theme of the 1984 legislation. Finally, the context *14 in which the relevant language appears is concerned entirely with federal sentencing. Indeed, the word "any" as used earlier in the section unquestionably has the meaning "any federal."[3] Given the Government's recognition of the fact that a completely literal reading of 924(c)(1) is untenable, and the further fact that the Court offers nothing more than the dictionary definition of the word "any" to support its result, I think the wiser course is to interpret that word in the prohibition against concurrent sentences as having the same meaning as when the same word is first used in the statute. Accordingly, I respectfully dissent.

Justice Kennedy

dissenting

Steelworkers v. Rawson

https://www.courtlistener.com/opinion/112426/steelworkers-v-rawson/

https://www.courtlistener.com/api/rest/v3/clusters/112426/

1989-077

The Idaho Supreme Court held that summary judgment was improper and that Tharon Rawson and the other respondents could proceed to trial against the United Steelworkers of America (Union) on a state-law tort theory. Although the respondents have not yet established liability under Idaho law, the Union argues that federal law must govern and bar their suit. To support this position, the Union relies on both § 301 of the Labor Management Relations Act, 29 U.S. C. § 185(a), and the duty of fair representation *377 implicit in § 9(a) of the National Labor Relations Act (NLRA), 49 Stat. 453, as amended, 29 U.S. C. § 159(a). The Court accepts the Union's contentions with respect to § 301 and does not reach the issue of pre-emption by the duty of fair representation. With all respect, I dissent. Neither of the Union's arguments for displacing Idaho law without any trial on the merits has validity. I The Union bases its § 301 argument on our decisions in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-406 (1988); Electrical Workers v. Hechler, 481 U.S. 851, 854 (1987); and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). These cases hold that § 301 pre-empts state-law causes of action that require interpretation of a collective-bargaining agreement. In my view, they have no application here. The Idaho Supreme Court, whose determination of state law supersedes that of the trial court, has declared that the respondents' case rests on allegations of the Union's active negligence in a voluntary undertaking, not its contractual obligations. Adopting verbatim a standard from the Restatement (Second) of Torts § 323 (1965), the Idaho Court expressed the law governing the respondents' claims as follows: " `One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if " `(a) his failure to exercise such care increases the risk of harm, [or] " `(b) the harm is suffered because of the other's reliance upon the undertaking.' " Rawson v. United Steelworkers of America, 111 Idaho 630, 637, 726 P.2d 742, 749 (1986). *378 According to the Idaho Supreme Court's second opinion, the respondents can prove the elements of the tort described in § 323 without relying on the Union's collective-bargaining agreement. The Court states: "In the instant case, we are not faced with looking at the Collective Bargaining Agreement to determine whether it imposes some new duty upon the union — rather it is conceded the union undertook to inspect and, thus, the issue is solely whether that inspection was negligently performed under traditional Idaho tort law." 115 Idaho 785, 787, 770 P.2d 794, 796 (1989). Placing this analysis of state law in the context of our precedents, the Idaho court explains: "[T]he instant case is clearly distinguishable from Hechler in that here the state tort basis of the action was not abandoned, but has been pursued consistently both at the trial and appellate levels and the tort exists without reference to the collective bargaining agreement." Id., at 787-788, 770 P.2d, at 796-797. The court states further: "[As in Lingle v. Norge Division of Magic Chef, Inc., supra], no interpretation of the collective-bargaining agreement is required to determine whether the union member of the inspection team committed a tort when he committed various acts and omissions such as failure to note the self-rescuers were stored in boxes with padlocks or that the activating valves of the oxygen-breathing-apparatuses were corroded shut. Rather, such alleged acts of negligence are measured by state tort law." Id., at 788, 770 P.2d, at 797. These statements reveal that the Idaho Supreme Court understood the federal pre-emption standards and interpreted state law not to implicate them. Because we have no basis for disputing the construction of state law by a state supreme court, see Clemons v. Mississippi, 494 U.S. 738, 747 *379 (1990), I submit that, at this stage of the proceedings, we must conclude that § 301 does not govern the respondents' claims. The Court reaches a different conclusion because it doubts that the Idaho Supreme Court means what it seems to have said. The Court bases its view, to a large extent, on the Idaho court's expressed intention to "adhere to [its first] opinion as written." 115 Idaho, at 788, 770 P.2d, at 797. The first opinion says: "Because the union, pursuant to the provisions of the collective bargaining agreement, had contracted to inspect and in fact, inspected the mine, it owed the (minimal) duty to its members to exercise due care in inspecting and in reporting the findings of its inspection." 111 Idaho, at 638, 726 P.2d, at 750. The Court construes the remark to negate the unequivocal statements quoted above. I cannot accept this labored interpretation. The Idaho Supreme Court's adherence to the first opinion does not implicate § 301 because it does not require interpretation of a collective-bargaining agreement. The first opinion suggests that the respondents may refer to the collective-bargaining agreement. It does not eliminate the possibility, identified three times in the second opinion, that the respondents may prove the elements of § 323 without relying on the collective-bargaining agreement. Even the Union concedes: "After Hechler, as we understand matters, both plaintiffs and the Idaho court would locate the source of the union's duty to inspect [in a non-negligent manner] in the union's action of accompanying company and state inspectors on inspections of the mine, and not in any contractual agreement by the union to inspect." Brief for Petitioner 27-28. The Court, thus, reads too much into the last sentence of the Idaho Supreme Court's second opinion. I see no reason not to allow this case to go forward with a simple mandate: The respondents may press their state claims so long as they do not rest upon the collective-bargaining *380 agreement. To the extent that any misunderstanding might exist, this approach would preserve all federal interests. If the Idaho Supreme Court, after a trial on the merits, were to uphold a verdict resting on the Union's obligations under the collective-bargaining agreement, we could reverse its decision. But for now we must take the case as the Idaho Supreme Court has given it to us. According to the second opinion, the respondents may prove the elements of § 323 without relying on the Union's contractual duties. The Court also rules against the respondents because it surmises that § 323 has no general applicability. The Court assumes that only union members could recover from the Union for its negligence in inspecting the mine and that union members could not recover from anyone else for comparable negligence. See ante, at 370-371. I agree that a State cannot circumvent our decisions in Lingle, Hechler, and Allis-Chalmers, by the mere "relabeling" as a tort claim an action that in law is based upon the collective-bargaining process. Allis-Chalmers, 471 U. S., at 211. We must have the ultimate responsibility for deciding whether a state law depends on a collective-bargaining agreement for the purposes of § 301. In this case, however, I see no indication that the tort theory pressed by the respondents has the limited application presumed by the Court. The Idaho Supreme Court did not invent, for the purposes of this case, the theory underlying the respondents' claims. As Cardozo put it: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922). Restatement § 323, upon which the Idaho Court relies, embodies this principle and long has guided the interpretation of Idaho tort law. See, e. g., Steiner Corp. v. American District Telegraph, 106 Idaho 787, 791, 683 P.2d 435, 439 (1984) (fire alarm failure); S. H. Kress & Co. v. Godman, 95 Idaho 614, 616, 515 P.2d 561, 563 (1973) (boiler explosion); *381 Fagundes v. State, 116 Idaho 173, 176, 774 P.2d 343, 346 (App. 1989) (helicopter crash); Carroll v. United Steelworkers of America, 107 Idaho 717, 723, 692 P.2d 361, 367 (1984) (Bistline, J., dissenting) (machinery accident). The Court has identified no basis for its assumption that § 323 has a narrower scope than its plain language and these cases indicate. I thus would not find pre-emption on the mere supposition that the Union's duty runs only to the union members. II The Union also argues that the duty of fair representation immunizes it from liability under § 323. Allowing the States to impose tort liability on labor organization, it contends, would upset the balance of rights and duties that federal law has struck between unions and their members. I disagree because nothing in the NLRA supports the Union's position. Section 9(a) of the NLRA, 29 U.S. C. § 159(a), grants a duly elected union the exclusive authority to represent all employees in a collective-bargaining unit. We have reasoned: "The fair interpretation of the statutory language is that the organization chosen to represent a craft is chosen to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those from whom it is exercised unless so expressed." Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 202 (1944) (footnote omitted) (interpretation of § 2(a) of the Railway Labor Act, 45 U.S. C. § 152 (1982 ed.), adopted for § 9(a) of the NLRA in Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953)). *382 As a result, we have read § 9(a) to establish a duty of fair representation requiring a union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). Although we have inferred that Congress intended to impose a duty of fair representation in § 9(a), I see no justification for the further conclusion that Congress desired to grant unions an immunity from all state tort law. Nothing about a union's status as the exclusive representative of a bargaining unit creates a need to exempt it from general duties to exercise due care to avoid injuring others. At least to some extent, therefore, I would conclude that Congress "by silence indicate[d] a purpose to let state regulation be imposed." Retail Clerks v. Schermerhorn, 375 U.S. 96, 104 (1963). Our decision in Farmer v. Carpenters, 430 U.S. 290 (1977), confirms this view. Farmer held that the NLRA did not pre-empt a union member's action against his union for intentional infliction of emotional distress. See id., at 305. The union member complained that his union ridiculed him in public and refused to refer jobs to him in accordance with hiring hall rules. See id., at 293. In analyzing this claim, we ruled that the NLRA's pre-emption of state tort law depends on two factors: "the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme." Id., at 297. Both of these factors militated against pre-emption in Farmer. Noting that "our cases consistently have recognized the historic state interest in `such traditionally local matters as public safety and order,' " id., at 299 (quoting Allen-Bradley Local v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749 (1942)), we ruled that the tort law addressed proper matters of state concern. We further observed that, although the tort liability for intentional infliction of emotional distress might interfere with the federal prohibition against discrimination by a *383 union, that "potential for interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens." 430 U.S., at 304. The Farmer analysis reveals that Idaho may hold the union liable for negligence in inspecting the mine. The strength and legitimacy of the State's interests in mine safety stand beyond question; the Union's failure to exercise due care, according to the allegations, caused or contributed to the deaths of 91 Idaho miners. Allowing this case to proceed to trial, moreover, would pose little threat to the federal regulatory scheme. State courts long have held unions liable for personal injuries under state law. See, e. g., DiLuzio v. United Electrical, Radio, and Machine Workers of America, 386 Mass. 314, 318, 435 N.E.2d 1027, 1030 (1982) (assault at workplace); Brawner v. Sanders, 244 Ore. 302, 307, 417 P.2d 1009, 1012 (1966) (in banc) (personal injuries); Marshall v. International Longshoremen's and Warehousemen's Union, 57 Cal. 2d 781, 787, 371 P.2d 987, 991 (1962) (stumble in union hall parking lot); Inglis v. Operating Engineers Local Union No. 12, 58 Cal. 2d 269, 270, 373 P.2d 467, 468 (1962) (assault at union meeting); Hulahan v. Sheehan, 522 S.W.2d 134, 139-141 (Mo. App. 1975) (slip and fall on union hall stairs). The Union presents no argument that this longstanding practice has interfered with federal labor regulation. Indeed, as the Court itself holds, nothing in the federal statutory scheme addresses the Union's conduct or provides redress for the injuries that it may have produced. See ante, at 373-375. The Union's position also deviates from the well-established position of the Courts of Appeals. These courts have found pre-emption by the duty of fair representation in two situations. First, the courts have said that the duty of fair fair representation pre-empts state duties that depend on a collective-bargaining agreement or on the union's status as the exclusive collective bargaining agent. See, e. g., Richardson v. United Steelworkers of America, 864 F.2d 1162, *384 1165-1167 (CA5 1989); Condon v. Local 2944, United Steel-workers of America, 683 F.2d 590, 595 (CA1 1982). As noted above, however, the Union's duties in this case do not stem from a contract or from its status as a union. Second, other courts have found the federal duty of fair representation to supplant equivalent state-law duties. See, e. g., Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856, 861 (CA6 1988) (sex discrimination); Maynard v. Revere Copper Products, 773 F.2d 733, 735 (CA6 1985) (handicapped discrimination); Peterson v. Air Line Pilots Assn., International, 759 F.2d 1161, 1170 (CA4 1985) (blacklisting). In this case, state law differs from federal law in that the duty of fair representation does not address the conduct in question. The Union, as a result, has shown no support for its contention that the duty of fair representation pre-empts the Idaho tort law. For these reasons, I dissent.

The Idaho Supreme Court held that summary judgment was improper and that Tharon Rawson and the other respondents could proceed to trial against the United Steelworkers of America (Union) on a state-law tort theory. Although the respondents have not yet established liability under Idaho law, the Union argues that federal law must govern and bar their suit. To support this position, the Union relies on both 301 of the Labor Management Relations Act, 29 U.S. C. 185(a), and the duty of fair representation *377 implicit in 9(a) of the National Labor Relations Act (NLRA), as amended, 29 U.S. C. 159(a). The Court accepts the Union's contentions with respect to 301 and does not reach the issue of pre-emption by the duty of fair representation. With all respect, I dissent. Neither of the Union's arguments for displacing Idaho law without any trial on the merits has validity. I The Union bases its 301 argument on our decisions in ; Electrical ; and These cases hold that 301 pre-empts state-law causes of action that require interpretation of a collective-bargaining agreement. In my view, they have no application here. The Idaho Supreme Court, whose determination of state law supersedes that of the trial court, has declared that the respondents' case rests on allegations of the Union's active negligence in a voluntary undertaking, not its contractual obligations. Adopting verbatim a standard from the Restatement (Second) of Torts 323 (1965), the Idaho Court expressed the law governing the respondents' claims as follows: " `One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if " `(a) his failure to exercise such care increases the risk of harm, [or] " `(b) the harm is suffered because of the other's reliance upon the undertaking.' " *378 According to the Idaho Supreme Court's second opinion, the respondents can prove the elements of the tort described in 323 without relying on the Union's collective-bargaining agreement. The Court states: "In the instant case, we are not faced with looking at the Collective Bargaining Agreement to determine whether it imposes some new duty upon the union — rather it is conceded the union undertook to inspect and, thus, the issue is solely whether that inspection was negligently performed under traditional Idaho tort law." Placing this analysis of state law in the context of our precedents, the Idaho court explains: "[T]he instant case is clearly distinguishable from Hechler in that here the state tort basis of the action was not abandoned, but has been pursued consistently both at the trial and appellate levels and the tort exists without reference to the collective bargaining agreement." at -, 770 P.2d, at -797. The court states further: "[As in no interpretation of the collective-bargaining agreement is required to determine whether the union member of the inspection team committed a tort when he committed various acts and omissions such as failure to note the self-rescuers were stored in boxes with padlocks or that the activating valves of the oxygen-breathing-apparatuses were corroded shut. Rather, such alleged acts of negligence are measured by state tort law." These statements reveal that the Idaho Supreme Court understood the federal pre-emption standards and interpreted state law not to implicate them. Because we have no basis for disputing the construction of state law by a state supreme court, see I submit that, at this stage of the proceedings, we must conclude that 301 does not govern the respondents' claims. The Court reaches a different conclusion because it doubts that the Idaho Supreme Court means what it seems to have said. The Court bases its view, to a large extent, on the Idaho court's expressed intention to "adhere to [its first] opinion as written." 115 Idaho, The first opinion says: "Because the union, pursuant to the provisions of the collective bargaining agreement, had contracted to inspect and in fact, inspected the mine, it owed the (minimal) duty to its members to exercise due care in inspecting and in reporting the findings of its inspection." The Court construes the remark to negate the unequivocal statements quoted above. I cannot accept this labored interpretation. The Idaho Supreme Court's adherence to the first opinion does not implicate 301 because it does not require interpretation of a collective-bargaining agreement. The first opinion suggests that the respondents may refer to the collective-bargaining agreement. It does not eliminate the possibility, identified three times in the second opinion, that the respondents may prove the elements of 323 without relying on the collective-bargaining agreement. Even the Union concedes: "After Hechler, as we understand matters, both plaintiffs and the Idaho court would locate the source of the union's duty to inspect [in a non-negligent manner] in the union's action of accompanying company and state inspectors on inspections of the mine, and not in any contractual agreement by the union to inspect." Brief for Petitioner 27-28. The Court, thus, reads too much into the last sentence of the Idaho Supreme Court's second opinion. I see no reason not to allow this case to go forward with a simple mandate: The respondents may press their state claims so long as they do not rest upon the collective-bargaining *380 agreement. To the extent that any misunderstanding might exist, this approach would preserve all federal interests. If the Idaho Supreme Court, after a trial on the merits, were to uphold a verdict resting on the Union's obligations under the collective-bargaining agreement, we could reverse its decision. But for now we must take the case as the Idaho Supreme Court has given it to us. According to the second opinion, the respondents may prove the elements of 323 without relying on the Union's contractual duties. The Court also rules against the respondents because it surmises that 323 has no general applicability. The Court assumes that only union members could recover from the Union for its negligence in inspecting the mine and that union members could not recover from anyone else for comparable negligence. See ante, at 370-371. I agree that a State cannot circumvent our decisions in Lingle, Hechler, and by the mere "relabeling" as a tort claim an action that in law is based upon the collective-bargaining process. 471 U. S., at We must have the ultimate responsibility for deciding whether a state law depends on a collective-bargaining agreement for the purposes of 301. In this case, however, I see no indication that the tort theory pressed by the respondents has the limited application presumed by the Court. The Idaho Supreme Court did not invent, for the purposes of this case, the theory underlying the respondents' claims. As Cardozo put it: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Restatement 323, upon which the Idaho Court relies, embodies this principle and long has guided the interpretation of Idaho tort law. See, e. g., Steiner 106 Idaho ; S. H. Kress & ; *381 ; (machinery accident). The Court has identified no basis for its assumption that 323 has a narrower scope than its plain language and these cases indicate. I thus would not find pre-emption on the mere supposition that the Union's duty runs only to the union members. II The Union also argues that the duty of fair representation immunizes it from liability under 323. Allowing the States to impose tort liability on labor organization, it contends, would upset the balance of rights and duties that federal law has struck between unions and their members. I disagree because nothing in the NLRA supports the Union's position. Section 9(a) of the NLRA, 29 U.S. C. 159(a), grants a duly elected union the exclusive authority to represent all employees in a collective-bargaining unit. We have reasoned: "The fair interpretation of the statutory language is that the organization chosen to represent a craft is chosen to represent all its members, the majority as well as the minority, and it is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those from whom it is exercised unless so expressed." (interpretation of 2(a) of the Railway Labor Act, 45 U.S. C. 152 ( ed.), adopted for 9(a) of the NLRA in Ford Motor ). *382 As a result, we have read 9(a) to establish a duty of fair representation requiring a union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Although we have inferred that Congress intended to impose a duty of fair representation in 9(a), I see no justification for the further conclusion that Congress desired to grant unions an immunity from all state tort law. Nothing about a union's status as the exclusive representative of a bargaining unit creates a need to exempt it from general duties to exercise due care to avoid injuring others. At least to some extent, therefore, I would conclude that Congress "by silence indicate[d] a purpose to let state regulation be imposed." Retail Our decision in confirms this view. Farmer held that the NLRA did not pre-empt a union member's action against his union for intentional infliction of emotional distress. See The union member complained that his union ridiculed him in public and refused to refer jobs to him in accordance with hiring hall rules. See In analyzing this claim, we ruled that the NLRA's pre-emption of state tort law depends on two factors: "the state interests in regulating the conduct in question and the potential for interference with the federal regulatory scheme." Both of these factors militated against pre-emption in Farmer. Noting that "our cases consistently have recognized the historic state interest in `such traditionally local matters as public safety and order,' " ), we ruled that the tort law addressed proper matters of state concern. We further observed that, although the tort liability for intentional infliction of emotional distress might interfere with the federal prohibition against discrimination by a *383 union, that "potential for interference is insufficient to counterbalance the legitimate and substantial interest of the State in protecting its citizens." The Farmer analysis reveals that Idaho may hold the union liable for negligence in inspecting the mine. The strength and legitimacy of the State's interests in mine safety stand beyond question; the Union's failure to exercise due care, according to the allegations, caused or contributed to the deaths of 91 Idaho miners. Allowing this case to proceed to trial, moreover, would pose little threat to the federal regulatory scheme. State courts long have held unions liable for personal injuries under state law. See, e. g., ; (personal injuries); ; ; The Union presents no argument that this longstanding practice has interfered with federal labor regulation. Indeed, as the Court itself holds, nothing in the federal statutory scheme addresses the Union's conduct or provides redress for the injuries that it may have produced. See ante, at 373-375. The Union's position also deviates from the well-established position of the Courts of Appeals. These courts have found pre-emption by the duty of fair representation in two situations. First, the courts have said that the duty of fair fair representation pre-empts state duties that depend on a collective-bargaining agreement or on the union's status as the exclusive collective bargaining agent. See, e. g., ; As noted above, however, the Union's duties in this case do not stem from a contract or from its status as a union. Second, other courts have found the federal duty of fair representation to supplant equivalent state-law duties. See, e. g., ; ; In this case, state law differs from federal law in that the duty of fair representation does not address the conduct in question. The Union, as a result, has shown no support for its contention that the duty of fair representation pre-empts the Idaho tort law. For these reasons, I dissent.

Justice Stevens

majority

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

The United States District Courts have jurisdiction over civil actions claiming a deprivation of rights secured by the Constitution of the United States or by Acts of Congress providing *603 for equal rights or for the protection of civil rights, including the right to vote.[1] The question presented by these cases is whether that jurisdiction encompasses a claim that a state welfare regulation is invalid because it conflicts with the Social Security Act. We conclude that it does not. In the Social Security Amendments of 1967, Congress authorized partial federal funding of approved state programs providing emergency assistance for certain needy persons.[2] In February 1976, Julia Gonzalez, the petitioner in No. 77-5324, requested the Hudson County, N. J., Welfare Board to pay her $163 in emergency assistance funds to cover her rent and utility bills.[3] The Board denied her request because *604 petitioner and her children were not "in a state of homelessness" as required by the relevant New Jersey regulations.[4] Petitioner brought suit in the United States District Court for the District of New Jersey alleging that the emergency payment was "necessary to avoid destitution" within the meaning of § 406 (e) (1) of the federal Social Security Act,[5] and she was therefore entitled to the payment notwithstanding the more stringent New Jersey regulation. In her federal complaint she sought damages of $163 and an injunction *605 commanding the New Jersey Welfare Director to conform his administration of the State's emergency assistance program to federal statutory standards. In essence, petitioner claimed that the New Jersey officials had deprived her of a right to emergency assistance protected by § 406 (e) (1) of the Social Security Act. The District Court held that the complaint stated a claim under 42 U.S. C. § 1983.[6] Without deciding whether the "secured by the Constitution" language in § 1343 (3) should be construed to include Supremacy Clause claims,[7] the District Court concluded that it had jurisdiction under both subparagraphs (3) and (4) of § 1343. But in doing so, the court did not explain whether it was § 1983 or § 406 (e) (1) of the Social Security Act that it viewed as the Act of Congress securing "equal rights" or "civil rights". On the merits, the District Court found no conflict between the state regulation and the federal statute and entered summary judgment for respondents. The Court of Appeals for the Third Circuit did not address the merits because it concluded that the District Court should have dismissed the complaint for want of jurisdiction.[8] In *606 reaching this conclusion, the Court of Appeals first noted that § 1983 "is not a jurisdictional statute; it only fashions a remedy." 560 F.2d 160, 164 (1977). Nor could jurisdiction be founded on 28 U.S. C. § 1331,[9] the general federal-question jurisdictional statute, since the amount in controversy did not exceed $10,000. The court recognized that when a constitutional claim is of sufficient substance to support federal jurisdiction, a district court has power to consider other claims which might not provide an independent basis for federal jurisdiction.[10] But it concluded that the constitutional claim must involve more than a contention that the Supremacy Clause requires that a federal statute be given effect over conflicting state law. It then went on to hold that the Social Security Act is not an Act of Congress securing either "equal rights" or "civil rights" as those terms are used in § 1343. And those terms, the court concluded, limit the grant of federal jurisdiction conferred by § 1343 even if § 1983 creates a remedy for a broader category of statutory claims. The petitioners in No. 77-719 are Commissioners of the Texas Department of Human Resources, which administers the State's program of Aid to Families with Dependent Children (AFDC). Respondents represent a class of AFDC recipients who share living quarters with a nondependent relative. Under the Texas regulations, the presence in the household of a nondependent person results in a reduction in the level of payments to the beneficiaries even if their level of actual need is unchanged. In a suit brought in the United *607 States District Court for the Southern District of Texas, respondents claimed that the Texas regulations violate § 402 (a) (7) of the Social Security Act, 42 U.S. C. § 602 (a) (7), and the federal regulations promulgated pursuant thereto.[11] The District Court upheld the Texas regulations.[12] While respondents' appeal was pending, this Court decided Van Lare v. Hurley, 421 U.S. 338. On the authority of that case, the Court of Appeals for the Fifth Circuit reversed.[13] Following earlier Fifth Circuit cases, the Court of Appeals concluded that federal jurisdiction was conferred by the language in 28 U.S. C. § 1343 (4) describing actions seeking relief "under any Act of Congress providing for the protection of civil rights . . . ." The Court reasoned that statutory rights concerning food and shelter are "`rights of an essentially personal nature,'" Houston Welfare Rights Org. v. Vowell, 555 F.2d 1219, 1221 n. 1 (1977); that 42 U.S. C. § 1983 provides a remedy which may be invoked to protect such rights; and that § 1983 is an Act of Congress providing for the protection of civil rights within the meaning of that jurisdictional grant.[14] We granted certiorari to resolve the conflict between that conclusion and the holding of the Third Circuit in No. 77-5324. 434 U.S. 1061. We have previously reserved the jurisdictional question we decide today, see Hagans v. Lavine, 415 U.S. 528, 533-534, n. 5. We preface our decision with a review of the history of the governing statutes. I Our decision turns on the construction of the two jurisdictional provisions, 28 U.S. C. §§ 1343 (3) and (4), and their *608 interrelationship with 42 U.S. C. § 1983 and the Social Security Act. As in all cases of statutory construction, our task is to interpret the words of these statutes in light of the purposes Congress sought to serve. Section 1 of the Civil Rights Act of 1871 is the source of both the jurisdictional grant now codified in 28 U.S. C. § 1343 (3) and the remedy now authorized by 42 U.S. C. § 1983.[15] Section 1 authorized individual suits in federal court to vindicate the deprivation, under color of state law, "of any rights, privileges, or immunities secured by the Constitution of the United States." No authorization was given for suits based on any federal statute. In 1874, Congress enacted the Revised Statutes of the United States. At that time, the remedial and jurisdictional provisions of § 1 were modified and placed in separate sections. The words "and laws," as now found in § 1983, were included in the remedial provision of Rev. Stat. § 1979,[16] and two quite *609 different formulations of the jurisdictional grant were included in Rev. Stat. §§ 563 and 629. The former granted the district courts jurisdiction of all actions to redress a deprivation under color of state law of any right secured by the Constitution or "by any law of the United States."[17] The latter defined the jurisdiction of the circuit courts and included the limiting phrase—"by any law providing for equal rights"—which is now found in § 1343 (3).[18] In the Judicial Code of 1911, Congress abolished circuit courts and transferred their authority to the district courts.[19] The Code's definition of the jurisdiction of the district courts to redress the deprivation of civil rights omitted the broad language referring to "any law of the United States" which had defined district court jurisdiction under § 563, and provided instead for jurisdiction over claims arising under federal laws "providing for equal rights"—the language which had been used to describe circuit court jurisdiction under § 629, *610 and which is now a part of § 1343 (3).[20] No significant change in either the remedial or jurisdictional language has been made since 1911.[21] Subsection 4 of § 1343, providing jurisdiction for claims "under any Act of Congress providing for the protection of civil rights, including the right to vote," is of more recent origin. Part III of the Civil Rights Act of 1957, as proposed, authorized the Attorney General to institute suits for injunctive relief against conspiracies to deprive citizens of the civil rights specified in 42 U.S. C. § 1985, which includes voting rights.[22] Part III conferred jurisdiction on the United States district courts to entertain proceedings instituted pursuant to this section of the Act.[23] While the substantive authorization of suits by the Attorney General was defeated, the amendment of § 1343, which had been termed a technical amendment to comply with the authority conferred by Part III,[24] was enacted into law. With the exception of this most recent enactment, 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. Section 1 of the 1871 Act was the least controversial provision of that Act;[25]*611 and what little debate did take place as to § 1 centered largely on the question of what protections the Constitution in fact afforded.[26] The relevant changes in the Revised Statutes were adopted virtually without comment, as was the definition of civil rights jurisdiction in the 1911 Code. The latter provision was described as simply merging the existing jurisdiction of the district and circuit courts,[27] a statement which may be read either as reflecting a view that the broader "and laws" language was intended to be preserved in the more limited "equal rights" language or as suggesting that "and laws" was itself originally enacted with reference to laws providing for equal rights, and was never thought to be any broader. Similar ambiguity is found in discussions of the basic policy of the legislation. While there is weight to the claim that Congress, from 1874 onward, intended to create a broad right of action in federal court for deprivations by a State of any federally secured right, it is also clear that the prime focus of Congress in all of the relevant legislation was ensuring a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto. We cannot say that any of these arguments is ultimately *612 right or wrong, or that one policy is more persuasive than others in reflecting the intent of Congress. It may well be that, at least as to § 1343 (3), the Congresses that enacted the 1871 Act and its subsequent amendments never considered the question of federal jurisdiction of claims arising under the broad scope of federal substantive authority that emerged many years later. This does not mean that jurisdiction cannot be found to encompass claims nonexistent in 1871 or 1874, but it cautions us to be hesitant in finding jurisdiction for new claims which do not clearly fit within the terms of the statute.[28] II The statutory language suggests three different approaches to the jurisdictional issue. The first involves a consideration of the words "secured by the Constitution of the United States" as used in § 1343. The second focuses on the remedy authorized by § 1983 and raises the question whether that section is a statute that secures "equal rights" or "civil rights" within the meaning of § 1343. The third approach makes the jurisdictional issue turn on whether the Social Security Act is a statute that secures "equal rights" or "civil rights." We consider these approaches in turn. 1. The Supremacy Clause Under § 1343 (3), Congress has created federal jurisdiction of any civil action authorized by law to redress the deprivation under color of state law "of any right, privilege or immunity secured [1] by the Constitution of the United States or [2] by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United *613 States." Claimants correctly point out that the first prepositional phrase can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does "secure" federal rights by according them priority whenever they come in conflict with state law.[29] In that sense all federal rights, whether created by treaty, by statute, or by regulation, are "secured" by the Supremacy Clause. In Swift & Co. v. Wickham, 382 U.S. 111, the Court was confronted with an analogous choice between two interpretations of the statute defining the jurisdiction of three-judge district courts.[30] The comprehensive language of that statute, 28 U.S. C. § 2281 (1970 ed.),[31] could have been broadly read to *614 encompass statutory claims secured by the Supremacy Clause or narrowly read to exclude claims that involve no federal constitutional provision except that Clause. After acknowledging that the broader reading was consistent not only with the statutory language but also with the policy of the statute, the Court accepted the more restrictive reading. Its reasoning is persuasive and applicable to the problems confronting us in this case. "This restrictive view of the application of § 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute `upon the ground of the unconstitutionality of such statute.' Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause, the words `upon the ground of the unconstitutionality of such statute' would appear to be superfluous unless they are read to exclude some types of such injunctive suits. For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court." Swift & Co. v. Wickham, supra, at 126-127 (footnotes omitted). Just as the phrase in § 2281—"upon the ground of the *615 unconstitutionality of such statute"—would have been superfluous unless read as a limitation on three-judge-court jurisdiction, so is it equally clear that the entire reference in § 1343 (3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause. More importantly, the additional language which describes a limited category of Acts of Congress—those "providing for equal rights of citizens"—plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims. Thus, while we recognize that there is force to claimants' argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase "secured by the Constitution," it would make little sense for Congress to have drafted the statute as it did if it had intended to confer jurisdiction over every conceivable federal claim against a state agent. In order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim "secured by the Constitution" within the meaning of § 1343 (3). 2. Section 1983 Claimants next argue that the "equal rights" language of § 1343 (3) should not be read literally or, if it is, that § 1983, the source of their asserted cause of action, should be considered an Act of Congress "providing for equal rights" within the meaning of § 1343 (3) or "providing for the protection of civil rights" within § 1343 (4). In support of this position, they point to the common origin of §§ 1983 and 1343 (3) in the Civil Rights Act of 1871 and this Court's recognition that the latter is the jurisdictional counterpart of the former.[32]*616 Since broad language describing statutory claims was used in both provisions during the period between 1874 and 1911 and has been retained in § 1983, and since Congress in the Judicial Code of 1911 purported to be making no changes in the existing law as to jurisdiction in this area, the "equal rights" language of § 1343 (3) must be construed to encompass all statutory claims arising under the broader language of § 1983. Moreover, in view of its origin in the Civil Rights Act of 1871 and its function in modern litigation, § 1983 does "provid[e] for the protection of civil rights" within the meaning of § 1343 (4). In practical effect, this argument leads to the same result as claimants' Supremacy Clause argument: jurisdiction over all challenges to state action based on any federal ground. Although the legislative history does not forbid this result, the words and structure of the statute, as well as portions of the legislative history, support a more limited construction. The common origin of §§ 1983 and 1343 (3) unquestionably implies that their coverage is, or at least originally was, coextensive. It is not, however, necessary in this case to decide whether the two provisions have the same scope. For even if they do, there would still be the question whether the "and laws" language in § 1983 should be narrowly read to conform with the "equal rights" language in § 1343 (3), or, conversely, the latter phrase should be broadly read to parallel the former. And, in all events, whether or not we assume that there is a difference between "any law of the United States" on the one hand and "any Act of Congress providing for equal rights" on the other, the fact is that the more limited language was used when Congress last amended the jurisdictional provision. In order to construe the broad language of § 1983 to cover any statutory claim, and at the same time to construe the language of § 1343 (3) as coextensive with such a cause of action, it would be necessary to ignore entirely Congress' most recent limiting amendment and the words of the provision as currently in force. *617 We cannot accept claimants' argument that we should reach this result by holding that § 1983 is an Act of Congress "providing for equal rights" within the meaning of § 1343 (3). Unlike the 1866 and 1870 Acts,[33] § 1 of the Civil Rights Act of 1871 did not provide for any substantive rights—equal or otherwise. As introduced and enacted, it served only to ensure that an individual had a cause of action for violations of the Constitution, which in the Fourteenth Amendment embodied and extended to all individuals as against state action the substantive protections afforded by § 1 of the 1866 Act.[34] No matter how broad the § 1 cause of action may be, the breadth of its coverage does not alter its procedural character. Even if claimants are correct in asserting that § 1983 provides a cause of action for all federal statutory claims, it remains true that one cannot go into court and claim a "violation of § 1983"—for § 1983 by itself does not protect anyone against anything. As Senator Edmunds recognized in the 1871 debate: "All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; *618 they are based upon the right of the citizen. The act only gives a remedy."[35] Under § 1343 (3), a civil action must be both "authorized by law" and brought to redress the deprivation of rights "secured by the Constitution of the United States or by any Act of Congress providing for equal rights." Section 1983, when properly invoked, satisfies the first requirement: It ensures that the suit will not be dismissed because not "authorized by law." But it cannot satisfy the second, since by its terms, as well as its history, it does not provide any rights at all. We reach a similar conclusion with respect to the argument that § 1983 is a statute "providing for the protection of civil rights, including the right to vote." Standing alone, § 1983 clearly provides no protection for civil rights since, as we have just concluded, § 1983 does not provide any substantive rights at all. To be sure, it may be argued that § 1983 does in some sense "provid[e] for the protection of civil rights" when it authorizes a cause of action based on the deprivation of civil rights guaranteed by other Acts of Congress. But in such cases, there is no question as to jurisdiction, and no need to invoke § 1983 to meet the "civil rights" requirement of § 1343 (4); the Act of Congress which is the actual substantive basis of the suit clearly suffices to meet the requisite test.[36] It is only when the underlying statute is not a civil rights Act that § 1983 need be invoked by those in claimants' position to support jurisdiction. And in such cases, by hypothesis, § 1983 does not "provid[e] for the protection of civil rights." To construe § 1343 (4), moreover, as encompassing all federal statutory suits, as claimants here propose, would seem plainly inconsistent with the congressional intent in passing that statute. As noted earlier, the provision's primary purpose *619 was to ensure federal-court jurisdiction over suits which the bill authorized the Attorney General to bring against conspiracies to deprive individuals of the civil rights enumerated in 42 U.S. C. § 1985.[37] The statute, of course, is broader than that: It encompasses suits brought by private individuals as well, and thus retained some significance even after the provisions authorizing suit by the Attorney General were defeated. But to the extent that § 1343 (4) was thought to expand existing federal jurisdiction, it was only because it does not require that the claimed deprivation be "under color of any State law."[38] One would expect that if Congress sought *620 not only to eliminate any state-action requirement but also to allow jurisdiction without respect to the amount in controversy for claims which in fact have nothing to do with "civil rights," there would be some indication of such an intent. But there is none, either in the legislative history or in the words of the statute itself. 3. The Social Security Act It follows from what we have said thus far that § 1343 does not confer federal jurisdiction over the claims based on the Social Security Act unless that Act may fairly be characterized as a statute securing "equal rights" within § 1343 (3) or "civil rights" within § 1343 (4). The Social Security Act provisions at issue here authorize federal assistance to participating States in the provision of a wide range of monetary benefits to needy individuals, including emergency assistance and payments necessary to provide food and shelter. Arguably, a statute that is intended to provide at least a minimum level of subsistence for all individuals could be regarded as securing either "equal rights" or "civil rights."[39] We are persuaded, *621 however, that both of these terms have a more restrictive meaning as used in the jurisdictional statute. The Social Security Act does not deal with the concept of "equality" or with the guarantee of "civil rights," as those terms are commonly understood. The Congress that enacted § 1343 (3) was primarily concerned with providing jurisdiction for cases dealing with racial equality; the Congress that enacted § 1343 (4) was primarily concerned with providing jurisdiction for actions dealing with the civil rights enumerated in 42 U.S. C. § 1985, and most notably the right to vote. While the words of these statutes are not limited to the precise claims which motivated their passage,[40] it is inappropriate to read the jurisdictional provisions to encompass new claims which fall well outside the common understanding of their terms. Our conclusion that the Social Security Act does not fall within the terms of either § 1343 (3) or (4) is supported by this Court's construction of similar phrases in the removal statute, 28 U.S. C. § 1443. The removal statute makes reference to "any law providing for the equal civil rights of citizens" and "any law providing for equal rights." In construing these phrases in Georgia v. Rachel, 384 U.S. 780, this Court concluded: "The present language `any law providing for . . . equal civil rights' first appeared in § 641 of the Revised Statutes of 1874. When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act—`rights secured to them by the first section of this act.' The new *622 language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase `any law providing for . . . equal civil rights' was clearly appropriate to permit removal in cases involving `a right under' both existing and future statutes that provided for equal civil rights. "There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of `law' to which the removal section referred. In spite of the potential breadth of the phrase `any law providing for . . . equal civil rights,' it seems clear that in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866. . . . ..... ". . . As the Court of Appeals for the Second Circuit has concluded, § 1443 `applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights . . . .' `When the removal statute speaks of "any law providing for equal rights," it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S. C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' New York v. Galamison, 342 F.2d 255, 269, 271. See also Gibson v. Mississippi, 162 U.S. 565, 585-586; Kentucky v. Powers, 201 U.S. 1, 39-40; City of Greenwood v. Peacock, [384 U.S. 808,] 825." Id., at 789-790, 792 (footnotes omitted). In accord with Georgia v. Rachel,[41] the Courts of Appeals have *623 consistently held that the Social Security Act is not a statute providing for "equal rights." See Andrews v. Maher, 525 F.2d 113 (CA2 1975); Aguayo v. Richardson, 473 F.2d 1090, 1101 (CA2 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U.S. 1146 (1974). We endorse those holdings, and find that a similar conclusion is warranted with respect to § 1343 (4) as well. See McCall v. Shapiro, 416 F.2d 246, 249 (CA2 1969). We therefore hold that the District Court did not have jurisdiction in either of these cases. Accordingly, the judgment in No. 77-5324 is affirmed, and the judgment in No. 77-719 is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR.

The United States District Courts have jurisdiction over civil actions claiming a deprivation of rights secured by the Constitution of the United States or by Acts of Congress providing *603 for equal rights or for the protection of civil rights, including the right to vote.[1] The question presented by these cases is whether that jurisdiction encompasses a claim that a state welfare regulation is invalid because it conflicts with the Social Security Act. We conclude that it does not. In the Social Security Amendments of 1967, Congress authorized partial federal funding of approved state programs providing emergency assistance for certain needy persons.[2] In February 1976, Julia Gonzalez, the petitioner in No. 77-5324, requested the Hudson County, N. J., Welfare Board to pay her $163 in emergency assistance funds to cover her rent and utility bills.[3] The Board denied her request because *604 petitioner and her children were not "in a state of homelessness" as required by the relevant New Jersey regulations.[4] Petitioner brought suit in the United States District Court for the District of New Jersey alleging that the emergency payment was "necessary to avoid destitution" within the meaning of 406 (e) (1) of the federal Social Security Act,[5] and she was therefore entitled to the payment notwithstanding the more stringent New Jersey regulation. In her federal complaint she sought damages of $163 and an injunction *605 commanding the New Jersey Welfare Director to conform his administration of the State's emergency assistance program to federal statutory standards. In essence, petitioner claimed that the New Jersey officials had deprived her of a right to emergency assistance protected by 406 (e) (1) of the Social Security Act. The District Court held that the complaint stated a claim under 42 U.S. C. 1983.[6] Without deciding whether the "secured by the Constitution" language in 1343 (3) should be construed to include Supremacy Clause claims,[7] the District Court concluded that it had jurisdiction under both subparagraphs (3) and (4) of 1343. But in doing so, the court did not explain whether it was 1983 or 406 (e) (1) of the Social Security Act that it viewed as the Act of Congress securing "equal rights" or "civil rights". On the merits, the District Court found no conflict between the state regulation and the federal statute and entered summary judgment for respondents. The Court of Appeals for the Third Circuit did not address the merits because it concluded that the District Court should have dismissed the complaint for want of jurisdiction.[8] In *606 reaching this conclusion, the Court of Appeals first noted that 1983 "is not a jurisdictional statute; it only fashions a remedy." Nor could jurisdiction be founded on 28 U.S. C. 1331,[9] the general federal-question jurisdictional statute, since the amount in controversy did not exceed $10,000. The court recognized that when a constitutional claim is of sufficient substance to support federal jurisdiction, a district court has power to consider other claims which might not provide an independent basis for federal jurisdiction.[10] But it concluded that the constitutional claim must involve more than a contention that the Supremacy Clause requires that a federal statute be given effect over conflicting state law. It then went on to hold that the Social Security Act is not an Act of Congress securing either "equal rights" or "civil rights" as those terms are used in 1343. And those terms, the court concluded, limit the grant of federal jurisdiction conferred by 1343 even if 1983 creates a remedy for a broader category of statutory claims. The petitioners in No. 77-719 are Commissioners of the Texas Department of Human Resources, which administers the State's program of Aid to Families with Dependent Children (AFDC). Respondents represent a class of AFDC recipients who share living quarters with a nondependent relative. Under the Texas regulations, the presence in the household of a nondependent person results in a reduction in the level of payments to the beneficiaries even if their level of actual need is unchanged. In a suit brought in the United *607 States District Court for the Southern District of Texas, respondents claimed that the Texas regulations violate 402 (a) (7) of the Social Security Act, 42 U.S. C. 602 (a) (7), and the federal regulations promulgated pursuant thereto.[11] The District Court upheld the Texas regulations.[12] While respondents' appeal was pending, this Court decided Van On the authority of that case, the Court of Appeals for the Fifth Circuit reversed.[13] Following earlier Fifth Circuit cases, the Court of Appeals concluded that federal jurisdiction was conferred by the language in 28 U.S. C. 1343 (4) describing actions seeking relief "under any Act of Congress providing for the protection of civil rights" The Court reasoned that statutory rights concerning food and shelter are "`rights of an essentially personal nature,'" Houston Welfare Rights ; that 42 U.S. C. 1983 provides a remedy which may be invoked to protect such rights; and that 1983 is an Act of Congress providing for the protection of civil rights within the meaning of that jurisdictional grant.[14] We granted certiorari to resolve the conflict between that conclusion and the holding of the Third Circuit in No. 77-5324. We have previously reserved the jurisdictional question we decide today, see We preface our decision with a review of the history of the governing statutes. I Our decision turns on the construction of the two jurisdictional provisions, 28 U.S. C. 1343 (3) and (4), and their *608 interrelationship with 42 U.S. C. 1983 and the Social Security Act. As in all cases of statutory construction, our task is to interpret the words of these statutes in light of the purposes Congress sought to serve. Section 1 of the Civil Rights Act of 1871 is the source of both the jurisdictional grant now codified in 28 U.S. C. 1343 (3) and the remedy now authorized by 42 U.S. C. 1983.[15] Section 1 authorized individual suits in federal court to vindicate the deprivation, under color of state law, "of any rights, privileges, or immunities secured by the Constitution of the United States." No authorization was given for suits based on any federal statute. In 1874, Congress enacted the Revised Statutes of the United States. At that time, the remedial and jurisdictional provisions of 1 were modified and placed in separate sections. The words "and laws," as now found in 1983, were included in the remedial provision of Rev. Stat. 1979,[16] and two quite *609 different formulations of the jurisdictional grant were included in Rev. Stat. 563 and 629. The former granted the district courts jurisdiction of all actions to redress a deprivation under color of state law of any right secured by the Constitution or "by any law of the United States."[17] The latter defined the jurisdiction of the circuit courts and included the limiting phrase—"by any law providing for equal rights"—which is now found in 1343 (3).[18] In the Judicial Code of 1911, Congress abolished circuit courts and transferred their authority to the district courts.[19] The Code's definition of the jurisdiction of the district courts to redress the deprivation of civil rights omitted the broad language referring to "any law of the United States" which had defined district court jurisdiction under 563, and provided instead for jurisdiction over claims arising under federal laws "providing for equal rights"—the language which had been used to describe circuit court jurisdiction under 629, *610 and which is now a part of 1343 (3).[20] No significant change in either the remedial or jurisdictional language has been made since 1911.[21] Subsection 4 of 1343, providing jurisdiction for claims "under any Act of Congress providing for the protection of civil rights, including the right to vote," is of more recent origin. Part III of the Civil Rights Act of 1957, as proposed, authorized the Attorney General to institute suits for injunctive relief against conspiracies to deprive citizens of the civil rights specified in 42 U.S. C. 1985, which includes voting rights.[22] Part III conferred jurisdiction on the United States district courts to entertain proceedings instituted pursuant to this section of the Act.[23] While the substantive authorization of suits by the Attorney General was defeated, the amendment of 1343, which had been termed a technical amendment to comply with the authority conferred by Part III,[24] was enacted into law. With the exception of this most recent enactment, 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. Section 1 of the 1871 Act was the least controversial provision of that Act;[25]*611 and what little debate did take place as to 1 centered largely on the question of what protections the Constitution in fact afforded.[26] The relevant changes in the Revised Statutes were adopted virtually without comment, as was the definition of civil rights jurisdiction in the 1911 Code. The latter provision was described as simply merging the existing jurisdiction of the district and circuit courts,[27] a statement which may be read either as reflecting a view that the broader "and laws" language was intended to be preserved in the more limited "equal rights" language or as suggesting that "and laws" was itself originally enacted with reference to laws providing for equal rights, and was never thought to be any broader. Similar ambiguity is found in discussions of the basic policy of the legislation. While there is weight to the claim that Congress, from 1874 onward, intended to create a broad right of action in federal court for deprivations by a State of any federally secured right, it is also clear that the prime focus of Congress in all of the relevant legislation was ensuring a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto. We cannot say that any of these arguments is ultimately *612 right or wrong, or that one policy is more persuasive than others in reflecting the intent of Congress. It may well be that, at least as to 1343 (3), the Congresses that enacted the 1871 Act and its subsequent amendments never considered the question of federal jurisdiction of claims arising under the broad scope of federal substantive authority that emerged many years later. This does not mean that jurisdiction cannot be found to encompass claims nonexistent in 1871 or 1874, but it cautions us to be hesitant in finding jurisdiction for new claims which do not clearly fit within the terms of the statute.[28] II The statutory language suggests three different approaches to the jurisdictional issue. The first involves a consideration of the words "secured by the Constitution of the United States" as used in 1343. The second focuses on the remedy authorized by 1983 and raises the question whether that section is a statute that secures "equal rights" or "civil rights" within the meaning of 1343. The third approach makes the jurisdictional issue turn on whether the Social Security Act is a statute that secures "equal rights" or "civil rights." We consider these approaches in turn. 1. The Supremacy Clause Under 1343 (3), Congress has created federal jurisdiction of any civil action authorized by law to redress the deprivation under color of state law "of any right, privilege or immunity secured [1] by the Constitution of the United States or [2] by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United *613 States." Claimants correctly point out that the first prepositional phrase can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does "secure" federal rights by according them priority whenever they come in conflict with state law.[29] In that sense all federal rights, whether created by treaty, by statute, or by regulation, are "secured" by the Supremacy Clause. In Swift & the Court was confronted with an analogous choice between two interpretations of the statute defining the jurisdiction of three-judge district courts.[30] The comprehensive language of that statute, 28 U.S. C. 2281 (1970 ed.),[31] could have been broadly read to *614 encompass statutory claims secured by the Supremacy Clause or narrowly read to exclude claims that involve no federal constitutional provision except that Clause. After acknowledging that the broader reading was consistent not only with the statutory language but also with the policy of the statute, the Court accepted the more restrictive reading. Its reasoning is persuasive and applicable to the problems confronting us in this case. "This restrictive view of the application of 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute `upon the ground of the unconstitutionality of such statute.' Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause, the words `upon the ground of the unconstitutionality of such statute' would appear to be superfluous unless they are read to exclude some types of such injunctive suits. For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court." Swift & Just as the phrase in 2281—"upon the ground of the *615 unconstitutionality of such statute"—would have been superfluous unless read as a limitation on three-judge-court jurisdiction, so is it equally clear that the entire reference in 1343 (3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause. More importantly, the additional language which describes a limited category of Acts of Congress—those "providing for equal rights of citizens"—plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims. Thus, while we recognize that there is force to claimants' argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase "secured by the Constitution," it would make little sense for Congress to have drafted the statute as it did if it had intended to confer jurisdiction over every conceivable federal claim against a state agent. In order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim "secured by the Constitution" within the meaning of 1343 (3). 2. Section 1983 Claimants next argue that the "equal rights" language of 1343 (3) should not be read literally or, if it is, that 1983, the source of their asserted cause of action, should be considered an Act of Congress "providing for equal rights" within the meaning of 1343 (3) or "providing for the protection of civil rights" within 1343 (4). In support of this position, they point to the common origin of 1983 and 1343 (3) in the Civil Rights Act of 1871 and this Court's recognition that the latter is the jurisdictional counterpart of the former.[32]*616 Since broad language describing statutory claims was used in both provisions during the period between 1874 and 1911 and has been retained in 1983, and since Congress in the Judicial Code of 1911 purported to be making no changes in the existing law as to jurisdiction in this area, the "equal rights" language of 1343 (3) must be construed to encompass all statutory claims arising under the broader language of 1983. Moreover, in view of its origin in the Civil Rights Act of 1871 and its function in modern litigation, 1983 does "provid[e] for the protection of civil rights" within the meaning of 1343 (4). In practical effect, this argument leads to the same result as claimants' Supremacy Clause argument: jurisdiction over all challenges to state action based on any federal ground. Although the legislative history does not forbid this result, the words and structure of the statute, as well as portions of the legislative history, support a more limited construction. The common origin of 1983 and 1343 (3) unquestionably implies that their coverage is, or at least originally was, coextensive. It is not, however, necessary in this case to decide whether the two provisions have the same scope. For even if they do, there would still be the question whether the "and laws" language in 1983 should be narrowly read to conform with the "equal rights" language in 1343 (3), or, conversely, the latter phrase should be broadly read to parallel the former. And, in all events, whether or not we assume that there is a difference between "any law of the United States" on the one hand and "any Act of Congress providing for equal rights" on the other, the fact is that the more limited language was used when Congress last amended the jurisdictional provision. In order to construe the broad language of 1983 to cover any statutory claim, and at the same time to construe the language of 1343 (3) as coextensive with such a cause of action, it would be necessary to ignore entirely Congress' most recent limiting amendment and the words of the provision as currently in force. *617 We cannot accept claimants' argument that we should reach this result by holding that 1983 is an Act of Congress "providing for equal rights" within the meaning of 1343 (3). Unlike the 1866 and 1870 Acts,[33] 1 of the Civil Rights Act of 1871 did not provide for any substantive rights—equal or otherwise. As introduced and enacted, it served only to ensure that an individual had a cause of action for violations of the Constitution, which in the Fourteenth Amendment embodied and extended to all individuals as against state action the substantive protections afforded by 1 of the 1866 Act.[34] No matter how broad the 1 cause of action may be, the breadth of its coverage does not alter its procedural character. Even if claimants are correct in asserting that 1983 provides a cause of action for all federal statutory claims, it remains true that one cannot go into court and claim a "violation of 1983"—for 1983 by itself does not protect anyone against anything. As Senator Edmunds recognized in the 1871 debate: "All civil suits, as every lawyer understands, which this act authorizes, are not based upon it; *618 they are based upon the right of the citizen. The act only gives a remedy."[35] Under 1343 (3), a civil action must be both "authorized by law" and brought to redress the deprivation of rights "secured by the Constitution of the United States or by any Act of Congress providing for equal rights." Section 1983, when properly invoked, satisfies the first requirement: It ensures that the suit will not be dismissed because not "authorized by law." But it cannot satisfy the second, since by its terms, as well as its history, it does not provide any rights at all. We reach a similar conclusion with respect to the argument that 1983 is a statute "providing for the protection of civil rights, including the right to vote." Standing alone, 1983 clearly provides no protection for civil rights since, as we have just concluded, 1983 does not provide any substantive rights at all. To be sure, it may be argued that 1983 does in some sense "provid[e] for the protection of civil rights" when it authorizes a cause of action based on the deprivation of civil rights guaranteed by other Acts of Congress. But in such cases, there is no question as to jurisdiction, and no need to invoke 1983 to meet the "civil rights" requirement of 1343 (4); the Act of Congress which is the actual substantive basis of the suit clearly suffices to meet the requisite test.[36] It is only when the underlying statute is not a civil rights Act that 1983 need be invoked by those in claimants' position to support jurisdiction. And in such cases, by hypothesis, 1983 does not "provid[e] for the protection of civil rights." To construe 1343 (4), moreover, as encompassing all federal statutory suits, as claimants here propose, would seem plainly inconsistent with the congressional intent in passing that statute. As noted earlier, the provision's primary purpose *619 was to ensure federal-court jurisdiction over suits which the bill authorized the Attorney General to bring against conspiracies to deprive individuals of the civil rights enumerated in 42 U.S. C. 1985.[37] The statute, of course, is broader than that: It encompasses suits brought by private individuals as well, and thus retained some significance even after the provisions authorizing suit by the Attorney General were defeated. But to the extent that 1343 (4) was thought to expand existing federal jurisdiction, it was only because it does not require that the claimed deprivation be "under color of any State law."[38] One would expect that if Congress sought *620 not only to eliminate any state-action requirement but also to allow jurisdiction without respect to the amount in controversy for claims which in fact have nothing to do with "civil rights," there would be some indication of such an intent. But there is none, either in the legislative history or in the words of the statute itself. 3. The Social Security Act It follows from what we have said thus far that 1343 does not confer federal jurisdiction over the claims based on the Social Security Act unless that Act may fairly be characterized as a statute securing "equal rights" within 1343 (3) or "civil rights" within 1343 (4). The Social Security Act provisions at issue here authorize federal assistance to participating States in the provision of a wide range of monetary benefits to needy individuals, including emergency assistance and payments necessary to provide food and shelter. Arguably, a statute that is intended to provide at least a minimum level of subsistence for all individuals could be regarded as securing either "equal rights" or "civil rights."[39] We are persuaded, *621 however, that both of these terms have a more restrictive meaning as used in the jurisdictional statute. The Social Security Act does not deal with the concept of "equality" or with the guarantee of "civil rights," as those terms are commonly understood. The Congress that enacted 1343 (3) was primarily concerned with providing jurisdiction for cases dealing with racial equality; the Congress that enacted 1343 (4) was primarily concerned with providing jurisdiction for actions dealing with the civil rights enumerated in 42 U.S. C. 1985, and most notably the right to vote. While the words of these statutes are not limited to the precise claims which motivated their passage,[40] it is inappropriate to read the jurisdictional provisions to encompass new claims which fall well outside the common understanding of their terms. Our conclusion that the Social Security Act does not fall within the terms of either 1343 (3) or (4) is supported by this Court's construction of similar phrases in the removal statute, 28 U.S. C. 1443. The removal statute makes reference to "any law providing for the equal civil rights of citizens" and "any law providing for equal rights." In construing these phrases in this Court concluded: "The present language `any law providing for equal civil rights' first appeared in 641 of the Revised Statutes of 1874. When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act—`rights secured to them by the first section of this act.' The new *622 language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase `any law providing for equal civil rights' was clearly appropriate to permit removal in cases involving `a right under' both existing and future statutes that provided for equal civil rights. "There is no substantial indication, however, that the general language of 641 of the Revised Statutes was intended to expand the kinds of `law' to which the removal section referred. In spite of the potential breadth of the phrase `any law providing for equal civil rights,' it seems clear that in enacting 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866. ". As the Court of Appeals for the Second Circuit has concluded, 1443 `applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights' `When the removal statute speaks of "any law providing for equal rights," it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S. C. 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' New See also ; ; City of] 825." In accord with[41] the Courts of Appeals have *623 consistently held that the Social Security Act is not a statute providing for "equal rights." See ; cert. denied sub nom. We endorse those holdings, and find that a similar conclusion is warranted with respect to 1343 (4) as well. See We therefore hold that the District Court did not have jurisdiction in either of these cases. Accordingly, the judgment in No. 77-5324 is affirmed, and the judgment in No. 77-719 is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR.

Justice Kennedy

majority

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

The Tohono O’odham Nation is an Indian Tribe with federal recognition. The Nation’s main reservation is in the Sonoran desert of southern Arizona. Counting this and other reservation lands, the Nation’s landholdings are approximately 3 million acres. The Nation brought two actions based on the same alleged violations of fiduciary duty with respect to the Nation’s lands and other assets. One action was filed against federal officials in district court and the other against the United States in the Court of Federal Claims (CFC). The Court of Appeals for the Federal Circuit held that the CFC suit was not barred by the rule that the CFC lacks jurisdiction over an action “for or in respect to” a claim that is also the subject of an action pending in an other court. 28 U.S. C. §1500. The question presented is whether a common factual basis like the one apparent in the Nation’s suits suffices to bar jurisdiction under §1500. I The case turns on the relationship between the two suits the Nation filed. The first suit was filed in the United 2 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court States District Court for the District of Columbia against federal officials responsible for managing tribal assets held in trust by the Federal Government. The complaint alleged various violations of fiduciary duty with respect to those assets. The Nation claimed, for example, that the officials failed to provide an accurate accounting of trust property; to refrain from self-dealing; or to use reasonable skill in investing trust assets. The complaint requested equitable relief, including an accounting. The next day the Nation filed the instant action against the United States in the CFC. The CFC complaint de scribed the same trust assets and the same fiduciary duties that were the subject of the District Court com plaint. And it alleged almost identical violations of fiduci ary duty, for which it requested money damages. The CFC case was dismissed under §1500 for want of jurisdiction. A divided panel of the Court of Appeals for the Federal Circuit reversed. 559 F.3d 1284 (2009). Two suits are for or in respect to the same claim, it reasoned, only if they share operative facts and also seek overlapping relief. Finding no overlap in the relief requested, the court held that the two suits at issue were not for or in respect to the same claim. This Court granted certiorari. 559 U. S. ___ (2010). II Since 1868, Congress has restricted the jurisdiction of the CFC and its predecessors when related actions are pending elsewhere. Section 1500, identical in most re spects to the original statute, provides: “The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” The rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents. The question to be resolved is what it means for two suits to be “for or in respect to” the same claim. Keene Corp. v. United States, 508 U.S. 200 (1993), provided a partial answer. It held that two suits are for or in respect to the same claim when they are “based on substantially the same operative facts . . . , at least if there [is] some overlap in the relief requested.” Id., at 212. The Keene case did not decide whether the jurisdictional bar also operates if the suits are based on the same operative facts but do not seek overlapping relief. Still, Keene narrows the permissible constructions of “for or in respect to” a claim to one of two interpretations. Either it requires substantial factual and some remedial overlap, or it re quires substantial factual overlap without more. Congress first enacted the jurisdictional bar now codi fied in §1500 to curb duplicate lawsuits brought by resi dents of the Confederacy following the Civil War. The so-called “cotton claimants”—named for their suits to recover for cotton taken by the Federal Government—sued the United States in the Court of Claims under the Aban doned Property Collection Act, 12 Stat. 820, while at the same time suing federal officials in other courts, seeking relief under tort law for the same alleged actions. See Keene, supra, at 206–207; Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Govern ment and Its Agents, 55 Geo. L. J. 573, 574–580 (1967). Although the rule embodied in §1500 originated long ago, Congress reenacted the statute at various times, most 4 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court recently in 1948. See Act of June 25, 1948, 62 Stat. 942; Keene, 508 U.S., at 206–207. The text of §1500 reflects a robust response to the prob lem first presented by the cotton claimants. It bars juris diction in the CFC not only if the plaintiff sues on an identical claim elsewhere—a suit “for” the same claim— but also if the plaintiff’s other action is related although not identical—a suit “in respect to” the same claim. The phrase “in respect to” does not resolve all doubt as to the scope of the jurisdictional bar, but “it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.” Id., at 213. It suggests a broad prohibition, regardless of whether “claim” carries a special or limited meaning. Cf. United States v. Jones, 131 U.S. 1 (1889) (“claim” in the Little Tucker Act refers only to requests for money). Of the two constructions of “for or in respect to” the same claim that Keene permits—one based on facts alone and the other on factual plus remedial overlap—the for mer is the more reasonable interpretation in light of the statute’s use of a similar phrase in a way consistent only with factual overlap. The CFC bar applies even where the other action is not against the Government but instead against a “person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” The statute refers to a person who acts under color of federal law in respect to a cause of action at the time it arose. But at that time, the person could not act in respect to the relief requested, for no complaint was yet filed. This use of the phrase “in respect to a cause of action” must refer to op erative facts and not whatever remedies an aggrieved party might later request. A person acts under color of federal law in respect to a cause of action by claiming or wielding federal authority in the relevant factual context. Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court Although the two phrases are not identical—one is in respect to a claim, the other a cause of action—they are almost so, and there is reason to think that both phrases refer to facts alone and not to relief. As the Keene Court explained, “the term ‘claim’ is used here synonymously with ‘cause of action.’ ” 508 U.S., at 210. And if either of the two phrases were to include both operative facts and a specific remedy, it would be the one that uses the term “cause of action” rather than “claim.” “Cause of action” is the more technical term, while “claim” is often used in a commonsense way to mean a right or demand. Here, for the reasons stated in the preceding paragraph, “in respect to a cause of action” refers simply to facts without regard to judicial remedies. So, if the phrase with the more tech nical of the two terms does not embrace the concept of remedy, it is reasonable to conclude that neither phrase does. Even if the terms “claim” or “cause of action” include the request for relief, the phrase “for or in respect to” gives the statutory bar a broader scope. Reading the statute to require only factual and not also remedial overlap makes sense in light of the unique reme dial powers of the CFC. The CFC is the only judicial forum for most non-tort requests for significant monetary relief against the United States. See 28 U.S. C. §1491 (2006 ed. and Supp. III); §1346(a)(2) (2006 ed.). Unlike the district courts, however, the CFC has no general power to provide equitable relief against the Government or its officers. Compare United States v. King, 395 U.S. 1, 2–3 (1969), with 5 U.S. C. §702; see also United States v. Alire, 6 Wall. 573, 575 (1868) (“[T]he only judgments which the Court of Claims are authorized to render against the government . . . are judgments for money found due from the government to the petitioner”). The distinct jurisdiction of the CFC makes overlapping relief the exception and distinct relief the norm. For that rea son, a statute aimed at precluding suits in the CFC that 6 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court duplicate suits elsewhere would be unlikely to require remedial overlap. Remedial overlap between CFC actions and those in other courts was even more unusual when §1500’s rule was first enacted in 1868. At that time the CFC had a more limited jurisdiction than it does now, for the Tucker Act’s general waiver of sovereign immunity for non-tort claims for monetary relief had not yet been enacted. See 24 Stat. 505. And while the district courts can today adjudicate suits against the United States for money damages under the Little Tucker Act, 28 U.S. C. §1346(a)(2), and the Federal Tort Claims Act §1346(b), in 1868 the United States could only be sued in the Court of Claims. United States v. Mitchell, 463 U.S. 206, 212–214 (1983); G. Sisk, Litigation with the Federal Government §4.02(a)(1) (4th ed. 2006). Because the kinds of suits and forms of relief available against the United States were few and constrained, remedial overlap between CFC suits and those in other courts was even less common then than now. If the statute were to require remedial as well as factual overlap, it would have had very limited application in 1868 despite its broad language that bars not only identical but also related claims. The rule in §1500 effects a significant jurisdictional limitation, and Congress reen acted it even as changes in the structure of the courts made suits on the same facts more likely to arise. Doing so reaffirmed the force of the bar and thus the commit ment to curtailing redundant litigation. The panel of the Court of Appeals could not identify “any purpose that §1500 serves today,” 559 F.3d, at 1292, in large part because it was bound by Circuit precedent that left the statute without meaningful force. For exam ple, the panel cited Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), which held that §1500 does not prohibit two identical suits from proceed ing so long as the action in the CFC, or at that time the Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court Court of Claims, is filed first. The Tecon holding is not presented in this case because the CFC action here was filed after the District Court suit. Still, the Court of Appeals was wrong to allow its prece dent to suppress the statute’s aims. Courts should not render statutes nugatory through construction. In fact the statute’s purpose is clear from its origins with the cotton claimants—the need to save the Government from bur dens of redundant litigation—and that purpose is no less significant today. The conclusion that two suits are for or in respect to the same claim when they are based on sub stantially the same operative facts allows the statute to achieve its aim. Keene, supra, at 206. Developing a fac tual record is responsible for much of the cost of litigation. Discovery is a conspicuous example, and the preparation and examination of witnesses at trial is another. The form of relief requested matters less, except insofar as it affects what facts parties must prove. An interpretation of §1500 focused on the facts rather than the relief a party seeks preserves the provision as it was meant to function, and it keeps the provision from becoming a mere pleading rule, to be circumvented by carving up a single transaction into overlapping pieces seeking different relief. Cf. Casman v. United States, 135 Ct. Cl. 647 (1956) (CFC had jurisdiction notwithstanding common facts in district court suit be cause the plaintiff sought different relief in each forum). Concentrating on operative facts is also consistent with the doctrine of claim preclusion, or res judicata, which bars “repetitious suits involving the same cause of action” once “a court of competent jurisdiction has entered a final judgment on the merits.” Commissioner v. Sunnen, 333 U.S. 591, 597 (1948). The jurisdictional bar in §1500 was enacted in part to address the problem that judgments in suits against officers were not preclusive in suits against the United States. Matson Nav. Co. v. United States, 284 U.S. 352, 355–356 (1932). So it is no surprise that the 8 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court statute would operate in similar fashion. The now accepted test in preclusion law for determining whether two suits involve the same claim or cause of action de pends on factual overlap, barring “claims arising from the same transaction.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, n. 22 (1982); see also Restatement (Second) of Judgments §24 (1980). The transactional test is of course much younger than the rule embodied in §1500, but even in the 19th century it was not uncommon to identify a claim for preclusion purposes based on facts rather than relief. See J. Wells, Res Adjudicata and Stare Decisis §241, p. 208 (1878) (“The true distinction between de mands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts” (internal quotation marks omitted)); 2 H. Black, Law of Judgments §726, p. 866 (1891) (The test for identity is: “Would the same evidence support and establish both the present and the former cause of action?”). Reading §1500 to depend on the underlying facts and not also on the relief requested gives effect to the principles of preclusion law embodied in the statute. There is no merit to the Nation’s assertion that the interpretation adopted here cannot prevail because it is unjust, forcing plaintiffs to choose between partial reme dies available in different courts. The hardship in this case is far from clear. The Nation could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses caused by the Government’s breach of duty. It also seems likely that Indian tribes in the Nation’s position could go to district court first without losing the chance to later file in the CFC, for Congress has provided in every appropriations Act for the Department of Interior since 1990 that the statute of limitations on Indian trust mismanagement claims shall not run until Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court the affected tribe has been given an appropriate account ing. See, e.g., 123 Stat. 2922; 104 Stat. 1930. Even were some hardship to be shown, considerations of policy divorced from the statute’s text and purpose could not override its meaning. Although Congress has permit ted claims against the United States for monetary relief in the CFC, that relief is available by grace and not by right. See Beers v. Arkansas, 20 How. 527, 529 (1858) (“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the man ner in which the suit shall be conducted”). If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are dissatisfied, they are free to direct their com plaints to Congress. This Court “enjoy[s] no ‘liberty to add an exception . . . to remove apparent hardship.’ ” Keene, 508 U.S., at 217–218 (quoting Corona Coal Co. v. United States, 263 U.S. 537, 540 (1924)). Keene reserved the question whether common facts are sufficient to bar a CFC action where a similar case is pending elsewhere. To continue to reserve the question would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes. Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit. III The remaining question is whether the Nation’s two suits have sufficient factual overlap to trigger the jurisdic tional bar. The CFC dismissed the action here in part because it concluded that the facts in the Nation’s two suits were, “for all practical purposes, identical.” 79 Fed. Cl. 645, 656 (2007). It was correct to do so. 10 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court The two actions both allege that the United States holds the same assets in trust for the Nation’s benefit. They describe almost identical breaches of fiduciary duty—that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example. Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect. Under §1500, the substantial overlap in operative facts between the Nation’s District Court and CFC suits pre cludes jurisdiction in the CFC. The Court of Appeals erred when it concluded otherwise. IV The holding here precludes the CFC from exercising jurisdiction over the Nation’s suit while the District Court case is pending. Should the Nation choose to dismiss the latter action, or upon that action’s completion, the Nation is free to file suit again in the CFC if the statute of limita tions is no bar. In the meantime, and in light of the sub stantial overlap in operative facts between them, the two suits are “for or in respect to” the same claim under §1500, and the CFC case must be dismissed. The contrary judg ment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. ____ (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 09–846 _________________ UNITED STATES, PETITIONER v. TOHONO O’ODHAM NATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 26, 2011] JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, concurring in the judgment.

The Tohono O’odham Nation is an Indian Tribe with federal recognition. The Nation’s main reservation is in the Sonoran desert of southern Arizona. Counting this and other reservation lands, the Nation’s landholdings are approximately 3 million acres. The Nation brought two actions based on the same alleged violations of fiduciary duty with respect to the Nation’s lands and other assets. One action was filed against federal officials in district court and the other against the United States in the Court of Federal Claims (CFC). The Court of Appeals for the Federal Circuit held that the CFC suit was not barred by the rule that the CFC lacks jurisdiction over an action “for or in respect to” a claim that is also the subject of an action pending in an other court. 28 U.S. C. The question presented is whether a common factual basis like the one apparent in the Nation’s suits suffices to bar jurisdiction under I The case turns on the relationship between the two suits the Nation filed. The first suit was filed in the United 2 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court States District Court for the District of Columbia against federal officials responsible for managing tribal assets held in trust by the Federal Government. The complaint alleged various violations of fiduciary duty with respect to those assets. The Nation claimed, for example, that the officials failed to provide an accurate accounting of trust property; to refrain from self-dealing; or to use reasonable skill in investing trust assets. The complaint requested equitable relief, including an accounting. The next day the Nation filed the instant action against the United States in the CFC. The CFC complaint de scribed the same trust assets and the same fiduciary duties that were the subject of the District Court com plaint. And it alleged almost identical violations of fiduci ary duty, for which it requested money damages. The CFC case was dismissed under for want of jurisdiction. A divided panel of the Court of Appeals for the Federal Circuit reversed. Two suits are for or in respect to the same claim, it reasoned, only if they share operative facts and also seek overlapping relief. Finding no overlap in the relief requested, the court held that the two suits at issue were not for or in respect to the same claim. This Court granted certiorari. 559 U. S. (2010). II Since 1868, Congress has restricted the jurisdiction of the CFC and its predecessors when related actions are pending elsewhere. Section 1500, identical in most re spects to the original statute, provides: “The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause Cite as: 563 U. S. (2011) 3 Opinion of the Court of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” The rule is more straightforward than its complex wording suggests. The CFC has no jurisdiction over a claim if the plaintiff has another suit for or in respect to that claim pending against the United States or its agents. The question to be resolved is what it means for two suits to be “for or in respect to” the same claim. provided a partial answer. It held that two suits are for or in respect to the same claim when they are “based on substantially the same operative facts at least if there [is] some overlap in the relief requested.” The case did not decide whether the jurisdictional bar also operates if the suits are based on the same operative facts but do not seek overlapping relief. Still, narrows the permissible constructions of “for or in respect to” a claim to one of two interpretations. Either it requires substantial factual and some remedial overlap, or it re quires substantial factual overlap without more. Congress first enacted the jurisdictional bar now codi fied in to curb duplicate lawsuits brought by resi dents of the Confederacy following the Civil War. The so-called “cotton claimants”—named for their suits to recover for cotton taken by the Federal Government—sued the United States in the Court of Claims under the Aban doned Property Collection Act, while at the same time suing federal officials in other courts, seeking relief under tort law for the same alleged actions. See –207; Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Govern ment and Its Agents, 55 Geo. L. J. 573, 574–580 (1967). Although the rule embodied in originated long ago, Congress reenacted the statute at various times, most 4 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court recently in 1948. See Act of June 25, 1948, ; –207. The text of reflects a robust response to the prob lem first presented by the cotton claimants. It bars juris diction in the CFC not only if the plaintiff sues on an identical claim elsewhere—a suit “for” the same claim— but also if the plaintiff’s other action is related although not identical—a suit “in respect to” the same claim. The phrase “in respect to” does not resolve all doubt as to the scope of the jurisdictional bar, but “it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity.” It suggests a broad prohibition, regardless of whether “claim” carries a special or limited meaning. Cf. United (“claim” in the Little Tucker Act refers only to requests for money). Of the two constructions of “for or in respect to” the same claim that permits—one based on facts alone and the other on factual plus remedial overlap—the for mer is the more reasonable interpretation in light of the statute’s use of a similar phrase in a way consistent only with factual overlap. The CFC bar applies even where the other action is not against the Government but instead against a “person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.” The statute refers to a person who acts under color of federal law in respect to a cause of action at the time it arose. But at that time, the person could not act in respect to the relief requested, for no complaint was yet filed. This use of the phrase “in respect to a cause of action” must refer to op erative facts and not whatever remedies an aggrieved party might later request. A person acts under color of federal law in respect to a cause of action by claiming or wielding federal authority in the relevant factual context. Cite as: 563 U. S. (2011) 5 Opinion of the Court Although the two phrases are not identical—one is in respect to a claim, the other a cause of action—they are almost so, and there is reason to think that both phrases refer to facts alone and not to relief. As the Court explained, “the term ‘claim’ is used here synonymously with ‘cause of action.’ ” And if either of the two phrases were to include both operative facts and a specific remedy, it would be the one that uses the term “cause of action” rather than “claim.” “Cause of action” is the more technical term, while “claim” is often used in a commonsense way to mean a right or demand. Here, for the reasons stated in the preceding paragraph, “in respect to a cause of action” refers simply to facts without regard to judicial remedies. So, if the phrase with the more tech nical of the two terms does not embrace the concept of remedy, it is reasonable to conclude that neither phrase does. Even if the terms “claim” or “cause of action” include the request for relief, the phrase “for or in respect to” gives the statutory bar a broader scope. Reading the statute to require only factual and not also remedial overlap makes sense in light of the unique reme dial powers of the CFC. The CFC is the only judicial forum for most non-tort requests for significant monetary relief against the United States. See 28 U.S. C. (2006 ed. and Supp. III); (2006 ed.). Unlike the district courts, however, the CFC has no general power to provide equitable relief against the Government or its officers. Compare United 2–3 (1969), with 5 U.S. C. see also United States v. Alire, (“[T]he only judgments which the Court of Claims are authorized to render against the government are judgments for money found due from the government to the petitioner”). The distinct jurisdiction of the CFC makes overlapping relief the exception and distinct relief the norm. For that rea son, a statute aimed at precluding suits in the CFC that 6 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court duplicate suits elsewhere would be unlikely to require remedial overlap. Remedial overlap between CFC actions and those in other courts was even more unusual when ’s rule was first enacted in 1868. At that time the CFC had a more limited jurisdiction than it does now, for the Tucker Act’s general waiver of sovereign immunity for non-tort claims for monetary relief had not yet been enacted. See And while the district courts can today adjudicate suits against the United States for money damages under the Little Tucker Act, 28 U.S. C. and the Federal Tort Claims Act in 1868 the United States could only be sued in the Court of Claims. United 212–214 (1983); G. Sisk, Litigation with the Federal Government (4th ed. 2006). Because the kinds of suits and forms of relief available against the United States were few and constrained, remedial overlap between CFC suits and those in other courts was even less common then than now. If the statute were to require remedial as well as factual overlap, it would have had very limited application in 1868 despite its broad language that bars not only identical but also related claims. The rule in effects a significant jurisdictional limitation, and Congress reen acted it even as changes in the structure of the courts made suits on the same facts more likely to arise. Doing so reaffirmed the force of the bar and thus the commit ment to curtailing redundant litigation. The panel of the Court of Appeals could not identify “any purpose that serves today,” in large part because it was bound by Circuit precedent that left the statute without meaningful force. For exam ple, the panel cited Tecon Engineers, which held that does not prohibit two identical suits from proceed ing so long as the action in the CFC, or at that time the Cite as: 563 U. S. (2011) 7 Opinion of the Court Court of Claims, is filed first. The Tecon holding is not presented in this case because the CFC action here was filed after the District Court suit. Still, the Court of Appeals was wrong to allow its prece dent to suppress the statute’s aims. Courts should not render statutes nugatory through construction. In fact the statute’s purpose is clear from its origins with the cotton claimants—the need to save the Government from bur dens of redundant litigation—and that purpose is no less significant today. The conclusion that two suits are for or in respect to the same claim when they are based on sub stantially the same operative facts allows the statute to achieve its aim. Developing a fac tual record is responsible for much of the cost of litigation. Discovery is a conspicuous example, and the preparation and examination of witnesses at trial is another. The form of relief requested matters less, except insofar as it affects what facts parties must prove. An interpretation of focused on the facts rather than the relief a party seeks preserves the provision as it was meant to function, and it keeps the provision from becoming a mere pleading rule, to be circumvented by carving up a single transaction into overlapping pieces seeking different relief. Cf. Casman v. United States, (CFC had jurisdiction notwithstanding common facts in district court suit be cause the plaintiff sought different relief in each forum). Concentrating on operative facts is also consistent with the doctrine of claim preclusion, or res judicata, which bars “repetitious suits involving the same cause of action” once “a court of competent jurisdiction has entered a final judgment on the merits.” Commissioner v. Sunnen, 333 U.S. 591, 597 (1948). The jurisdictional bar in was enacted in part to address the problem that judgments in suits against officers were not preclusive in suits against the United States. Matson Nav. Co. v. United States, 284 U.S. 352, 355–356 (1932). So it is no surprise that the 8 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court statute would operate in similar fashion. The now accepted test in preclusion law for determining whether two suits involve the same claim or cause of action de pends on factual overlap, barring “claims arising from the same transaction.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, n. 22 (1982); see also Restatement (Second) of Judgments (1980). The transactional test is of course much younger than the rule embodied in but even in the 19th century it was not uncommon to identify a claim for preclusion purposes based on facts rather than relief. See J. Wells, Res Adjudicata and Stare Decisis 1, p. 208 (1878) (“The true distinction between de mands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts” (internal quotation marks omitted)); 2 H. Black, Law of Judgments p. 866 (1891) (The test for identity is: “Would the same evidence support and establish both the present and the former cause of action?”). Reading to depend on the underlying facts and not also on the relief requested gives effect to the principles of preclusion law embodied in the statute. There is no merit to the Nation’s assertion that the interpretation adopted here cannot prevail because it is unjust, forcing plaintiffs to choose between partial reme dies available in different courts. The hardship in this case is far from clear. The Nation could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses caused by the Government’s breach of duty. It also seems likely that Indian tribes in the Nation’s position could go to district court first without losing the chance to later file in the CFC, for Congress has provided in every appropriations Act for the Department of Interior since 1990 that the statute of limitations on Indian trust mismanagement claims shall not run until Cite as: 563 U. S. (2011) 9 Opinion of the Court the affected tribe has been given an appropriate account ing. See, e.g., ; Even were some hardship to be shown, considerations of policy divorced from the statute’s text and purpose could not override its meaning. Although Congress has permit ted claims against the United States for monetary relief in the CFC, that relief is available by grace and not by right. See (“[A]s this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the man ner in which the suit shall be conducted”). If indeed the statute leads to incomplete relief, and if plaintiffs like the Nation are dissatisfied, they are free to direct their com plaints to Congress. This Court “enjoy[s] no ‘liberty to add an exception to remove apparent hardship.’ ” –218 ). reserved the question whether common facts are sufficient to bar a CFC action where a similar case is pending elsewhere. To continue to reserve the question would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes. Two suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based on substantially the same operative facts, regardless of the relief sought in each suit. III The remaining question is whether the Nation’s two suits have sufficient factual overlap to trigger the jurisdic tional bar. The CFC dismissed the action here in part because it concluded that the facts in the Nation’s two suits were, “for all practical purposes, identical.” 79 Fed. Cl. 645, 656 (2007). It was correct to do so. 10 UNITED STATES v. TOHONO O’ODHAM NATION Opinion of the Court The two actions both allege that the United States holds the same assets in trust for the Nation’s benefit. They describe almost identical breaches of fiduciary duty—that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example. Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect. Under the substantial overlap in operative facts between the Nation’s District Court and CFC suits pre cludes jurisdiction in the CFC. The Court of Appeals erred when it concluded otherwise. IV The holding here precludes the CFC from exercising jurisdiction over the Nation’s suit while the District Court case is pending. Should the Nation choose to dismiss the latter action, or upon that action’s completion, the Nation is free to file suit again in the CFC if the statute of limita tions is no bar. In the meantime, and in light of the sub stantial overlap in operative facts between them, the two suits are “for or in respect to” the same claim under and the CFC case must be dismissed. The contrary judg ment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 09–846 UNITED STATES, PETITIONER v. TOHONO O’ODHAM NATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 26, 2011] JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, concurring in the judgment.

Justice Breyer

concurring

Bruesewitz v. Wyeth LLC

https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/

https://www.courtlistener.com/api/rest/v3/clusters/205203/

2010-015

I join the Court’s judgment and opinion. In my view, the Court has the better of the purely textual argument. But the textual question considered alone is a close one. Hence, like the dissent, I would look to other sources, including legislative history, statutory purpose, and the views of the federal administrative agency, here supported by expert medical opinion. Unlike the dissent, however, I believe these other sources reinforce the Court’s conclusion. I House Committee Report 99–908 contains an “authori tative” account of Congress’ intent in drafting the pre emption clause of the National Childhood Vaccine Injury Act of 1986 (NCVIA or Act). See Garcia v. United States, 469 U.S. 70, 76 (1984) (“[T]he authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill”). That Report says that, “if” vaccine injured persons “cannot demonstrate under applicable law either that a vaccine was improperly prepared or that it was ac companied by improper directions or inadequate warnings [they] should pursue recompense in the 2 BRUESEWITZ v. WYETH LLC BREYER, J., concurring compensation system, not the tort system.” H. R. Rep. No. 99–908, pt. 1, p. 24 (1986) (hereinafter H. R. Rep.). The Report lists two specific kinds of tort suits that the clause does not pre-empt (suits based on improper manu facturing and improper labeling), while going on to state that compensation for other tort claims, e.g., design-defect claims, lies in “the [NCVIA’s no-fault] compensation sys tem, not the tort system.” Ibid. The strongest contrary argument rests upon the Re port’s earlier description of the statute as “set[ting] forth the principle contained in Comment k” (of the Restate ment Second of Torts’ strict liability section, 402A) that “a vaccine manufacturer should not be liable for injuries or deaths resulting from unavoidable side effects.” Id., at 23 (emphasis added). But the appearance of the word “un avoidable” in this last-mentioned sentence cannot provide petitioners with much help. That is because nothing in the Report suggests that the statute means the word “unavoidable” to summon up an otherwise unmentioned third exception encompassing suits based on design de fects. Nor can the Report’s reference to comment k fill the gap. The Report itself refers, not to comment k’s details, but only to its “principle,” namely, that vaccine manufac turers should not be held liable for unavoidable injuries. It says nothing at all about who—judge, jury, or federal safety agency—should decide whether a safer vaccine could have been designed. Indeed, at the time Congress wrote this Report, different state courts had come to very different conclusions about that matter. See Cupp, Re thinking Conscious Design Liability for Prescription Drugs: The Restatement (Third) Standard Versus a Negli gence Approach, 63 Geo. Wash. L. Rev. 76, 79 (1994–1995) (“[C]ourts [had] adopted a broad range of conflicting inter pretations” of comment k). Neither the word “unavoid Cite as: 562 U. S. ____ (2011) 3 BREYER, J., concurring able” nor the phrase “the principle of Comment k” tells us which courts’ view Congress intended to adopt. Silence cannot tell us to follow those States where juries decided the design-defect question. II The legislative history describes the statute more gen erally as trying to protect the lives of children, in part by ending “the instability and unpredictability of the childhood vaccine market.” H. R. Rep., at 7; see ante, at 2–3. As the Committee Report makes clear, routine vacci nation is “one of the most spectacularly effective public health initiatives this country has ever undertaken.” H. R. Rep., at 4. Before the development of routine whoop ing cough vaccination, for example, “nearly all children” in the United States caught the disease and more than 4,000 people died annually, most of them infants. U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, What Would Happen if We Stopped Vaccinations? http://www.cdc.gov/vaccines/vac-gen/ whatifstop.htm (all Internet materials as visited Feb. 17, 2011, and available in Clerk of Court’s case file); Prevent ing Tetanus, Diphtheria, and Pertussis Among Adoles cents: Use of Tetanus Toxoid, Reduced Diptheria Toxoid and Acellular Pertussis Vaccines, 55 Morbidity and Mor tality Weekly Report, No. RR–3, p. 2 (Mar. 24, 2006) (here inafter Preventing Tetanus) (statistics for 1934–1943), http://www.cdc.gov/mmwr/PDF/rr/rr5503.pdf; U. S. Dept. of Health and Human Services, Centers for Disease Con trol and Prevention, Epidemiology and Prevention of Vaccine-Preventable Diseases 200 (11th ed. rev. May 2009). After vaccination became common, the number of annual cases of whooping cough declined from over 200,000 to about 2,300, and the number of deaths from about 4,000 to about 12. Preventing Tetanus 2; Childhood Immunizations, House Committee on Energy and Com 4 BRUESEWITZ v. WYETH LLC BREYER, J., concurring merce, 99th Cong., 2d Sess., 10 (Comm. Print 1986) (here inafter Childhood Immunizations). But these gains are fragile; “[t]he causative agents for these preventable childhood illnesses are ever present in the environment, waiting for the opportunity to attack the unprotected individual.” Hearing on S. 827 before the Senate Committee on Labor and Human Resources, 99th Cong., 2d Sess., pt. 2, pp. 20–21 (1985) (hereinafter Hear ings) (testimony of the American Academy of Pediatrics); see California Dept. of Public Health, Pertussis Re- port (Jan. 7, 2011), www.cdph.ca.gov/programs/immunize/ Documents/PertussisReport2011–01–07.pdf (In 2010, 8,383 people in California caught whooping cough, and 10 infants died). Even a brief period when vaccination pro grams are disrupted can lead to children’s deaths. Hear ings 20–21; see Gangarosa et al., Impact of Anti-Vaccine Movements on Pertussis Control: The Untold Story, 351 Lancet 356–361 (Jan. 31, 1998) (when vaccination pro grams are disrupted, the number of cases of whooping cough skyrockets, increasing by orders of magnitude). In considering the NCVIA, Congress found that a sharp increase in tort suits brought against whooping cough and other vaccine manufacturers between 1980 and 1985 had “prompted manufacturers to question their continued participation in the vaccine market.” H. R. Rep., at 4; Childhood Immunizations 85–86. Indeed, two whooping cough vaccine manufacturers withdrew from the market, and other vaccine manufacturers, “fac[ing] great difficulty in obtaining [product liability] insurance,” told Congress that they were considering “a similar course of action.” H. R. Rep., at 4; Childhood Immunizations 68–70. The Committee Report explains that, since there were only one or two manufacturers of many childhood vaccines, “[t]he loss of any of the existing manufacturers of childhood vaccines . . . could create a genuine public health hazard”; it “would present the very real possibility of vaccine short Cite as: 562 U. S. ____ (2011) 5 BREYER, J., concurring ages, and, in turn, increasing numbers of unimmunized children, and, perhaps, a resurgence of preventable dis eases.” H. R. Rep., at 5. At the same time, Congress sought to provide generous compensation to those whom vaccines injured—as determined by an expert compensa tion program. Id., at 5, 24. Given these broad general purposes, to read the pre emption clause as preserving design-defect suits seems anomalous. The Department of Health and Human Services (HHS) decides when a vaccine is safe enough to be licensed and which licensed vaccines, with which associated injuries, should be placed on the Vaccine In- jury Table. 42 U.S. C. §300aa–14; ante, at 3–4; A Comprehensive Review of Federal Vaccine Safety Pro grams and Public Health Activities 13–15, 32–34 (Dec. 2008), http://www.hhs.gov/nvpo/nvac/documents/ vaccine-safety-review.pdf. A special master in the Act’s compensation program determines whether someone has suffered an injury listed on the Injury Table and, if not, whether the vaccine nonetheless caused the injury. Ante, at 3–4; §300aa–13. To allow a jury in effect to second guess those determinations is to substitute less expert for more expert judgment, thereby threatening manufacturers with liability (indeed, strict liability) in instances where any conflict between experts and nonexperts is likely to be particularly severe—instances where Congress intended the contrary. That is because potential tort plaintiffs are unlikely to bring suit unless the specialized compensation program has determined that they are not entitled to compensation (say, because it concludes that the vaccine did not cause the injury). Brief for United States as Amicus Curiae 28 (“99.8% of successful Compensation Program claimants have accepted their awards, foregoing any tort remedies against vaccine manufacturers”). It is difficult to reconcile these potential conflicts and the re sulting tort liabilities with a statute that seeks to diminish 6 BRUESEWITZ v. WYETH LLC BREYER, J., concurring manufacturers’ product liability while simultaneously augmenting the role of experts in making compensation decisions. III The United States, reflecting the views of HHS, urges the Court to read the Act as I and the majority would do. It notes that the compensation program’s listed vaccines have survived rigorous administrative safety review. It says that to read the Act as permitting design-defect lawsuits could lead to a recurrence of “exactly the crisis that precipitated the Act,” namely withdrawals of vaccines or vaccine manufacturers from the market, “disserv[ing] the Act’s central purposes,” and hampering the ability of the agency’s “expert regulators, in conjunction with the medical community, [to] control the availability and with drawal of a given vaccine.” Brief for United States as Amicus Curiae 30, 31. The United States is supported in this claim by leading public health organizations, including the American Acad emy of Pediatrics, the American Academy of Family Phy sicians, the American College of Preventive Medicine, the American Public Health Association, the American Medi cal Association, the March of Dimes Foundation, the Pedi atric Infectious Diseases Society, and 15 other similar organizations. Brief for American Academy of Pediatrics et al. as Amici Curiae (hereinafter AAP Brief). The Ameri can Academy of Pediatrics has also supported the reten tion of vaccine manufacturer tort liability (provided that federal law structured state-law liability conditions in ways that would take proper account of federal agency views about safety). Hearings 14–15. But it nonetheless tells us here, in respect to the specific question before us, that the petitioners’ interpretation of the Act would un dermine its basic purposes by threatening to “halt the future production and development of childhood vaccines Cite as: 562 U. S. ____ (2011) 7 BREYER, J., concurring in this country,” i.e., by “threaten[ing] a resurgence of the very problems which . . . caused Congress to intervene” by enacting this statute. AAP Brief 24 (internal quotation marks omitted). I would give significant weight to the views of HHS. The law charges HHS with responsibility for overseeing vaccine production and safety. It is “likely to have a thor ough understanding” of the complicated and technical subject matter of immunization policy, and it is compara tively more “qualified to comprehend the likely impact of state requirements.” Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 883 (2000) (internal quotation marks omitted); see Medtronic, Inc. v. Lohr, 518 U.S. 470, 506 (1996) (BREYER, J., concurring in part and concurring in judgment) (the agency is in the best position to determine “whether (or the extent to which) state requirements may interfere with federal objectives”). HHS’s position is par ticularly persuasive here because expert public health organizations support its views and the matter concerns a medical and scientific question of great importance: how best to save the lives of children. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). In sum, congressional reports and history, the statute’s basic purpose as revealed by that history, and the views of the expert agency along with those of relevant medical and scientific associations, all support the Court’s conclusions. I consequently agree with the Court. Cite as: 562 U. S. ____ (2011) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–152 _________________ RUSSELL BRUESEWITZ, ET AL., PETITIONERS v. WYETH LLC, FKA WYETH, INC., FKA WYETH LABORATORIES, ET AL.

I join the Court’s judgment and opinion. In my view, the Court has the better of the purely textual argument. But the textual question considered alone is a close one. Hence, like the dissent, I would look to other sources, including legislative history, statutory purpose, and the views of the federal administrative agency, here supported by expert medical opinion. Unlike the dissent, however, I believe these other sources reinforce the Court’s conclusion. I House Committee Report 99–908 contains an “authori tative” account of Congress’ intent in drafting the pre emption clause of the National Childhood Vaccine Injury Act of 1986 (NCVIA or Act). See (“[T]he authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill”). That Report says that, “if” vaccine injured persons “cannot demonstrate under applicable law either that a vaccine was improperly prepared or that it was ac companied by improper directions or inadequate warnings [they] should pursue recompense in the 2 BRUESEWITZ v. WYETH LLC BREYER, J., concurring compensation system, not the tort system.” H. R. Rep. No. 99–908, pt. 1, p. 24 (1986) (hereinafter H. R. Rep.). The Report lists two specific kinds of tort suits that the clause does not pre-empt (suits based on improper manu facturing and improper labeling), while going on to state that compensation for other tort claims, e.g., design-defect claims, lies in “the [NCVIA’s no-fault] compensation sys tem, not the tort system.” The strongest contrary argument rests upon the Re port’s earlier description of the statute as “set[ting] forth the principle contained in Comment k” (of the Restate ment Second of Torts’ strict liability section, 402A) that “a vaccine manufacturer should not be liable for injuries or deaths resulting from unavoidable side effects.” (emphasis added). But the appearance of the word “un avoidable” in this last-mentioned sentence cannot provide petitioners with much help. That is because nothing in the Report suggests that the statute means the word “unavoidable” to summon up an otherwise unmentioned third exception encompassing suits based on design de fects. Nor can the Report’s reference to comment k fill the gap. The Report itself refers, not to comment k’s details, but only to its “principle,” namely, that vaccine manufac turers should not be held liable for unavoidable injuries. It says nothing at all about who—judge, jury, or federal safety agency—should decide whether a safer vaccine could have been designed. Indeed, at the time Congress wrote this Report, different state courts had come to very different conclusions about that matter. See Cupp, Re thinking Conscious Design Liability for Prescription Drugs: The Restatement (Third) Standard Versus a Negli gence Approach, 63 Geo. Wash. L. Rev. (1994–1995) (“[C]ourts [had] adopted a broad range of conflicting inter pretations” of comment k). Neither the word “unavoid Cite as: 562 U. S. (2011) 3 BREYER, J., concurring able” nor the phrase “the principle of Comment k” tells us which courts’ view Congress intended to adopt. Silence cannot tell us to follow those States where juries decided the design-defect question. II The legislative history describes the statute more gen erally as trying to protect the lives of children, in part by ending “the instability and unpredictability of the childhood vaccine market.” H. R. Rep., at 7; see ante, at 2–3. As the Committee Report makes clear, routine vacci nation is “one of the most spectacularly effective public health initiatives this country has ever undertaken.” H. R. Rep., at 4. Before the development of routine whoop ing cough vaccination, for example, “nearly all children” in the United States caught the disease and more than 4,000 people died annually, most of them infants. U. S. Dept. of Health and Human Services, Centers for Disease Control and Prevention, What Would Happen if We Stopped Vaccinations? http://www.cdc.gov/vaccines/vac-gen/ whatifstop.htm (all Internet materials as visited Feb. 17, 2011, and available in Clerk of Court’s case file); Prevent ing Tetanus, Diphtheria, and Pertussis Among Adoles cents: Use of Tetanus Toxoid, Reduced Diptheria Toxoid and Acellular Pertussis Vaccines, 55 Morbidity and Mor tality Weekly Report, No. RR–3, p. 2 (Mar. 24, 2006) (here inafter Preventing Tetanus) (statistics for 1934–1943), http://www.cdc.gov/mmwr/PDF/rr/rr5503.pdf; U. S. Dept. of Health and Human Services, Centers for Disease Con trol and Prevention, Epidemiology and Prevention of Vaccine-Preventable Diseases 200 (11th ed. rev. May 2009). After vaccination became common, the number of annual cases of whooping cough declined from over 200,000 to about 2,300, and the number of deaths from about 4,000 to about 12. Preventing Tetanus 2; Childhood Immunizations, House Committee on Energy and Com 4 BRUESEWITZ v. WYETH LLC BREYER, J., concurring merce, 99th Cong., 2d Sess., 10 (Comm. Print 1986) (here inafter Childhood Immunizations). But these gains are fragile; “[t]he causative agents for these preventable childhood illnesses are ever present in the environment, waiting for the opportunity to attack the unprotected individual.” Hearing on S. 827 before the Senate Committee on Labor and Human Resources, 99th Cong., 2d Sess., pt. 2, pp. 20–21 (1985) (hereinafter Hear ings) (testimony of the American Academy of Pediatrics); see California Dept. of Public Health, Pertussis Re- port (Jan. 7, 2011), www.cdph.ca.gov/programs/immunize/ Documents/PertussisReport2011–01–07.pdf (In 2010, 8,383 people in California caught whooping cough, and 10 infants died). Even a brief period when vaccination pro grams are disrupted can lead to children’s deaths. Hear ings 20–21; see Gangarosa et al., Impact of Anti-Vaccine Movements on Pertussis Control: The Untold Story, 351 Lancet 356–361 (Jan. 31, 1998) (when vaccination pro grams are disrupted, the number of cases of whooping cough skyrockets, increasing by orders of magnitude). In considering the NCVIA, Congress found that a sharp increase in tort suits brought against whooping cough and other vaccine manufacturers between 1980 and 1985 had “prompted manufacturers to question their continued participation in the vaccine market.” H. R. Rep., at 4; Childhood Immunizations 85–86. Indeed, two whooping cough vaccine manufacturers withdrew from the market, and other vaccine manufacturers, “fac[ing] great difficulty in obtaining [product liability] insurance,” told Congress that they were considering “a similar course of action.” H. R. Rep., at 4; Childhood Immunizations 68–70. The Committee Report explains that, since there were only one or two manufacturers of many childhood vaccines, “[t]he loss of any of the existing manufacturers of childhood vaccines could create a genuine public health hazard”; it “would present the very real possibility of vaccine short Cite as: 562 U. S. (2011) 5 BREYER, J., concurring ages, and, in turn, increasing numbers of unimmunized children, and, perhaps, a resurgence of preventable dis eases.” H. R. Rep., at 5. At the same time, Congress sought to provide generous compensation to those whom vaccines injured—as determined by an expert compensa tion program. Given these broad general purposes, to read the pre emption clause as preserving design-defect suits seems anomalous. The Department of Health and Human Services (HHS) decides when a vaccine is safe enough to be licensed and which licensed vaccines, with which associated injuries, should be placed on the Vaccine In- jury Table. 42 U.S. C. ante, at 3–4; A Comprehensive Review of Federal Vaccine Safety Pro grams and Public Health Activities 13–15, 32–34 (Dec. 2008), http://www.hhs.gov/nvpo/nvac/documents/ vaccine-safety-review.pdf. A special master in the Act’s compensation program determines whether someone has suffered an injury listed on the Injury Table and, if not, whether the vaccine nonetheless caused the injury. Ante, at 3–4; To allow a jury in effect to second guess those determinations is to substitute less expert for more expert judgment, thereby threatening manufacturers with liability (indeed, strict liability) in instances where any conflict between experts and nonexperts is likely to be particularly severe—instances where Congress intended the contrary. That is because potential tort plaintiffs are unlikely to bring suit unless the specialized compensation program has determined that they are not entitled to compensation (say, because it concludes that the vaccine did not cause the injury). Brief for United States as Amicus Curiae 28 (“99.8% of successful Compensation Program claimants have accepted their awards, foregoing any tort remedies against vaccine manufacturers”). It is difficult to reconcile these potential conflicts and the re sulting tort liabilities with a statute that seeks to diminish 6 BRUESEWITZ v. WYETH LLC BREYER, J., concurring manufacturers’ product liability while simultaneously augmenting the role of experts in making compensation decisions. III The United States, reflecting the views of HHS, urges the Court to read the Act as I and the majority would do. It notes that the compensation program’s listed vaccines have survived rigorous administrative safety review. It says that to read the Act as permitting design-defect lawsuits could lead to a recurrence of “exactly the crisis that precipitated the Act,” namely withdrawals of vaccines or vaccine manufacturers from the market, “disserv[ing] the Act’s central purposes,” and hampering the ability of the agency’s “expert regulators, in conjunction with the medical community, [to] control the availability and with drawal of a given vaccine.” Brief for United States as Amicus Curiae 30, 31. The United States is supported in this claim by leading public health organizations, including the American Acad emy of Pediatrics, the American Academy of Family Phy sicians, the American College of Preventive Medicine, the American Public Health Association, the American Medi cal Association, the March of Dimes Foundation, the Pedi atric Infectious Diseases Society, and 15 other similar organizations. Brief for American Academy of Pediatrics et al. as Amici Curiae (hereinafter AAP Brief). The Ameri can Academy of Pediatrics has also supported the reten tion of vaccine manufacturer tort liability (provided that federal law structured state-law liability conditions in ways that would take proper account of federal agency views about safety). Hearings 14–15. But it nonetheless tells us here, in respect to the specific question before us, that the petitioners’ interpretation of the Act would un dermine its basic purposes by threatening to “halt the future production and development of childhood vaccines Cite as: 562 U. S. (2011) 7 BREYER, J., concurring in this country,” i.e., by “threaten[ing] a resurgence of the very problems which caused Congress to intervene” by enacting this statute. AAP Brief 24 (internal quotation marks omitted). I would give significant weight to the views of HHS. The law charges HHS with responsibility for overseeing vaccine production and safety. It is “likely to have a thor ough understanding” of the complicated and technical subject matter of immunization policy, and it is compara tively more “qualified to comprehend the likely impact of state requirements.” (internal quotation marks omitted); see Medtronic, (1996) (BREYER, J., concurring in part and concurring in judgment) (the agency is in the best position to determine “whether (or the extent to which) state requirements may interfere with federal objectives”). HHS’s position is par ticularly persuasive here because expert public health organizations support its views and the matter concerns a medical and scientific question of great importance: how best to save the lives of children. See In sum, congressional reports and history, the statute’s basic purpose as revealed by that history, and the views of the expert agency along with those of relevant medical and scientific associations, all support the Court’s conclusions. I consequently agree with the Court. Cite as: 562 U. S. (2011) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–152 RUSSELL BRUESEWITZ, ET AL., PETITIONERS v. WYETH LLC, FKA WYETH, INC., FKA WYETH LABORATORIES, ET AL.

Justice Powell

concurring

Aguilar v. Felton

https://www.courtlistener.com/opinion/111506/aguilar-v-felton/

https://www.courtlistener.com/api/rest/v3/clusters/111506/

1984-157

I concur in the Court's opinions and judgments today in this case and in School District of Grand Rapids v. Ball, ante, p. 373, holding that the aid to parochial schools involved in those cases violates the Establishment Clause of the First *415 Amendment. I write to emphasize additional reasons why precedents of this Court require us to invalidate these two educational programs that concededly have "done so much good and little, if any, detectable harm." 739 F.2d 48, 72 (CA2 1984). The Court has previously recognized the important role of parochial schools: " `Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools.' " Mueller v. Allen, 463 U.S. 388, 401-402 (1983) (quoting Wolman v. Walter, 433 U.S. 229, 262 (1977) (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part)). "The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them." 433 U.S., at 262. Regrettably, however, the Title I and Grand Rapids programs do not survive the scrutiny required by our Establishment Clause cases. I agree with the Court that in this case the Establishment Clause is violated because there is too great a risk of government entanglement in the administration of the religious schools; the same is true in Ball, ante, p. 373. As beneficial as the Title I program appears to be in accomplishing its secular goal of supplementing the education of deprived children, its elaborate structure, the participation of public school teachers, and the government surveillance required to ensure that public funds are used for secular purposes inevitably present a serious risk of excessive entanglement. Our cases have noted that " `[t]he State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.' " Meek v. Pittenger, 421 U.S. 349, 371 (1975) (emphasis added) (quoting Lemon v. Kurtzman, 403 *416 U. S. 602, 619 (1971)). This is true whether the subsidized teachers are religious school teachers, as in Lemon, or public school teachers teaching secular subjects to parochial school children at the parochial schools. Judge Friendly, writing for the unanimous Court of Appeals, agreed with this assessment of our cases. He correctly observed that the structure of the Title I program required the active and extensive surveillance that the City has provided, and, "under Meek, this very surveillance constitutes excessive entanglement even if it has succeeded in preventing the fostering of religion." 739 F. 2d, at 66. This risk of entanglement is compounded by the additional risk of political divisiveness stemming from the aid to religion at issue here. I do not suggest that at this point in our history the Title I program or similar parochial aid plans could result in the establishment of a state religion. There likewise is small chance that these programs would result in significant religious or denominational control over our democratic processes. See Wolman v. Walter, supra, at 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). Nonetheless, there remains a considerable risk of continuing political strife over the propriety of direct aid to religious schools and the proper allocation of limited governmental resources. As this Court has repeatedly recognized, there is a likelihood whenever direct governmental aid is extended to some groups that there will be competition and strife among them and others to gain, maintain, or increase the financial support of government. E. g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 796-797 (1973); Lemon v. Kurtzman, supra, at 623. In States such as New York that have large and varied sectarian populations, one can be assured that politics will enter into any state decision to aid parochial schools. Public schools, as well as private schools, are under increasing financial pressure to meet real and perceived needs. Thus, any proposal to extend direct governmental *417 aid to parochial schools alone is likely to spark political disagreement from taxpayers who support the public schools, as well as from nonrecipient sectarian groups, who may fear that needed funds are being diverted from them. In short, aid to parochial schools of the sort at issue here potentially leads to "that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." Walz v. Tax Comm'n, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.). Although the Court's opinion does not discuss it at length, see ante, at 413, the potential for such divisiveness is a strong additional reason for holding that the Title I and Grand Rapids programs are invalid on entanglement grounds. The Title I program at issue in this case also would be invalid under the "effects" prong of the test adopted in Lemon v. Kurtzman, supra.[*] As has been discussed thoroughly in Ball, ante, at 392-397, with respect to the Grand Rapids programs, the type of aid provided in New York by the Title I program amounts to a state subsidy of the parochial schools by relieving those schools of the duty to provide the remedial and supplemental education their children require. This is not the type of "indirect and incidental effect beneficial to [the] religious institutions" that we suggested in Nyquist would survive Establishment Clause scrutiny. 413 U.S., at 775. Rather, by directly assuming part of the parochial schools' education function, the effect of the Title I aid is "inevitably . . . to subsidize and advance the religious mission of [the] sectarian schools," id., at 779-780, even though the program provides that only secular subjects will *418 be taught. As in Meek v. Pittenger, 421 U.S. 349 (1975), the secular education these schools provide goes " `hand in hand' " with the religious mission that is the reason for the schools' existence. 421 U.S., at 366 (quoting Lemon v. Kurtzman, 403 U. S., at 657 (opinion of BRENNAN, J.)). Because of the predominantly religious nature of the schools, the substantial aid provided by the Title I program "inescapably results in the direct and substantial advancement of religious activity." Meek v. Pittenger, supra, at 366. I recognize the difficult dilemma in which governments are placed by the interaction of the "effects" and entanglement prongs of the Lemon test. Our decisions require governments extending aid to parochial schools to tread an extremely narrow line between being certain that the "principal or primary effect" of the aid is not to advance religion, Lemon v. Kurtzman, supra, at 612, and avoiding excessive entanglement. Nonetheless, the Court has never foreclosed the possibility that some types of aid to parochial schools could be valid under the Establishment Clause. Mueller v. Allen, 463 U. S., at 393. Our cases have upheld evenhanded secular assistance to both parochial and public school children in some areas. E. g., ibid. (tax deductions for educational expenses); Board of Education v. Allen, 392 U.S. 236 (1968) (provision of secular textbooks); Everson v. Board of Education, 330 U.S. 1 (1947) (reimbursements for bus fare to school). I do not read the Court's opinion as precluding these types of indirect aid to parochial schools. In the cases cited, the assistance programs made funds available equally to public and nonpublic schools without entanglement. The constitutional defect in the Title I program, as indicated above, is that it provides a direct financial subsidy to be administered in significant part by public school teachers within parochial schools — resulting in both the advancement of religion and forbidden entanglement. If, for example, Congress could fashion a program of evenhanded financial assistance to both public and private schools that could *419 be administered, without governmental supervision in the private schools, so as to prevent the diversion of the aid from secular purposes, we would be presented with a different question. I join the opinions and judgments of the Court.

I concur in the Court's opinions and judgments today in this case and in School District of Grand Rapids v. Ball, ante, p. 373, holding that the aid to parochial schools involved in those cases violates the Establishment Clause of the First *415 Amendment. I write to emphasize additional reasons why precedents of this Court require us to invalidate these two educational programs that concededly have "done so much good and little, if any, detectable harm." The Court has previously recognized the important role of parochial schools: " `Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools.' " "The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them." 433 U.S., at Regrettably, however, the Title I and Grand Rapids programs do not survive the scrutiny required by our Establishment Clause cases. I agree with the Court that in this case the Establishment Clause is violated because there is too great a risk of government entanglement in the administration of the religious schools; the same is true in Ball, ante, p. 373. As beneficial as the Title I program appears to be in accomplishing its secular goal of supplementing the education of deprived children, its elaborate structure, the participation of public school teachers, and the government surveillance required to ensure that public funds are used for secular purposes inevitably present a serious risk of excessive entanglement. Our cases have noted that " `[t]he State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.' " ). This is true whether the subsidized teachers are religious school teachers, as in Lemon, or public school teachers teaching secular subjects to parochial school children at the parochial schools. Judge Friendly, writing for the unanimous Court of Appeals, agreed with this assessment of our cases. He correctly observed that the structure of the Title I program required the active and extensive surveillance that the City has provided, and, "under Meek, this very surveillance constitutes excessive entanglement even if it has succeeded in preventing the fostering of religion." 739 F. 2d, at 66. This risk of entanglement is compounded by the additional risk of political divisiveness stemming from the aid to religion at issue here. I do not suggest that at this point in our history the Title I program or similar parochial aid plans could result in the establishment of a state religion. There likewise is small chance that these programs would result in significant religious or denominational control over our democratic processes. See Nonetheless, there remains a considerable risk of continuing political strife over the propriety of direct aid to religious schools and the proper allocation of limited governmental resources. As this Court has repeatedly recognized, there is a likelihood whenever direct governmental aid is extended to some groups that there will be competition and strife among them and others to gain, maintain, or increase the financial support of government. E. g., Committee for Public Education & Religious ; Lemon v. In States such as New York that have large and varied sectarian populations, one can be assured that politics will enter into any state decision to aid parochial schools. Public schools, as well as private schools, are under increasing financial pressure to meet real and perceived needs. Thus, any proposal to extend direct governmental *417 aid to parochial schools alone is likely to spark political disagreement from taxpayers who support the public schools, as well as from nonrecipient sectarian groups, who may fear that needed funds are being diverted from them. In short, aid to parochial schools of the sort at issue here potentially leads to "that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." Although the Court's opinion does not discuss it at length, see ante, at 413, the potential for such divisiveness is a strong additional reason for holding that the Title I and Grand Rapids programs are invalid on entanglement grounds. The Title I program at issue in this case also would be invalid under the "effects" prong of the test adopted in Lemon v. As has been discussed thoroughly in Ball, ante, at 392-397, with respect to the Grand Rapids programs, the type of aid provided in New York by the Title I program amounts to a state subsidy of the parochial schools by relieving those schools of the duty to provide the remedial and supplemental education their children require. This is not the type of "indirect and incidental effect beneficial to [the] religious institutions" that we suggested in Nyquist would survive Establishment Clause scrutiny. Rather, by directly assuming part of the parochial schools' education function, the effect of the Title I aid is "inevitably to subsidize and advance the religious mission of [the] sectarian schools," even though the program provides that only secular subjects will *418 be taught. As in the secular education these schools provide goes " `hand in hand' " with the religious mission that is the reason for the schools' (quoting Lemon v. ). Because of the predominantly religious nature of the schools, the substantial aid provided by the Title I program "inescapably results in the direct and substantial advancement of religious activity." I recognize the difficult dilemma in which governments are placed by the interaction of the "effects" and entanglement prongs of the Lemon test. Our decisions require governments extending aid to parochial schools to tread an extremely narrow line between being certain that the "principal or primary effect" of the aid is not to advance religion, Lemon v. and avoiding excessive entanglement. Nonetheless, the Court has never foreclosed the possibility that some types of aid to parochial schools could be valid under the Establishment Clause. Our cases have upheld evenhanded secular assistance to both parochial and public school children in some areas. E. g., ; Board of Education v. ; I do not read the Court's opinion as precluding these types of indirect aid to parochial schools. In the cases cited, the assistance programs made funds available equally to public and nonpublic schools without entanglement. The constitutional defect in the Title I program, as indicated above, is that it provides a direct financial subsidy to be administered in significant part by public school teachers within parochial schools — resulting in both the advancement of religion and forbidden entanglement. If, for example, Congress could fashion a program of evenhanded financial assistance to both public and private schools that could *419 be administered, without governmental supervision in the private schools, so as to prevent the diversion of the aid from secular purposes, we would be presented with a different question. I join the opinions and judgments of the Court.

Justice Scalia

majority

Shalala v. Schaefer

https://www.courtlistener.com/opinion/112895/shalala-v-schaefer/

https://www.courtlistener.com/api/rest/v3/clusters/112895/

1992-106

This case concerns the proper timing of an application for attorney's fees under the Equal Access to Justice Act (EAJA) in a Social Security case. Under 42 U.S. C. § 405(g), a claimant has the right to seek judicial review of a final *294 decision of the Secretary of Health and Human Services denying Social Security benefits. One possible outcome of such a suit is that the district court, pursuant to sentence four of § 405(g), will enter "a judgment . . . reversing the decision of the Secretary . . . [and] remanding the cause for a rehearing." The issue here is whether the 30-day period for filing an application for EAJA fees begins immediately upon expiration of the time for appeal of such a "sentencefour remand order," or sometime after the administrative proceedings on remand are complete. I In 1986, respondent Richard Schaefer filed an application for disability benefits under Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U.S. C. § 401 et seq. (1988 ed. and Supp. III). He was denied benefits at the administrative level, and sought judicial review by filing suit against the Secretary as authorized by § 405(g). Schaefer and the Secretary filed cross-motions for summary judgment. On April 4, 1989, the District Court held that the Secretary had committed three errors in ruling on Schaefer's case and entered an order stating that "the Secretary's decision denying disability insurance benefits to [Schaefer] is reversed, that the parties' cross-motions for summary judgment are denied, and that the case is remanded to the Secretary for further consideration in light of this Order." App. to Pet. for Cert. 27a. In accordance with this order, Schaefer's application for benefits was reconsidered at the administrative level, and was granted. On July 18, 1990, Schaefer returned to the District Court and filed an application for attorney's fees pursuant to EAJA. In response, the Secretary noted that Schaefer was required to file any application for EAJA fees "within thirty days of final judgment in the action," 28 U.S. C. § 2412(d)(1)(B), and argued that the relevant "final judgment" in the case was the administrative decision on *295 remand, which had become final on April 2, 1990. The District Court stayed action on Schaefer's EAJA application pending this Court's imminent ruling in Melkonyan v. Sullivan, 501 U.S. 89 (1991). Melkonyan was announced shortly thereafter, holding that a final administrative decision could not constitute a "final judgment" for purposes of § 2412(d)(1)(B). Id., at 96. In light of Melkonyan, the Secretary changed positions to argue that EAJA's 30-day clock began running when the District Court's April 4, 1989 order (not the administrative ruling on remand) became final, which would have occurred at the end of the 60 days for appeal provided under Federal Rule of Appellate Procedure 4(a). Thus, the Secretary concluded, Schaefer's time to file his EAJA application expired on July 3, 1989, over a year before the application was filed. The District Court, however, found Schaefer's EAJA application timely under the controlling Circuit precedent of Welter v. Sullivan, 941 F.2d 674 (CA8 1991), which held that a sentence-four remand order is not a final judgment where "the district court retain[s] jurisdiction . . . and plan[s] to enter dispositive sentence four judgmen[t]" after the administrative proceedings on remand are complete. Id., at 675. The District Court went on to rule that Schaefer was entitled to $1,372.50 in attorney's fees. The Secretary fared no better on appeal. The Eighth Circuit declined the Secretary's suggestion for en banc reconsideration of Welter, and affirmed the District Court in an unpublished per curiam opinion. Judgt. order reported at 960 F.2d 1053 (1992). The Secretary filed a petition for certiorari, urging us to reverse the Court of Appeals summarily. We granted certiorari, 506 U.S. 997 (1992), and set the case for oral argument. II The first sentence of 28 U.S. C. § 2412(d)(1)(B) provides: "A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, *296 submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." (Emphasis added.) In Melkonyan v. Sullivan, we held that the term "final judgment" in the highlighted phrase above "refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency." See 501 U.S., at 96. Thus, the only order in this case that could have resulted in the starting of EAJA's 30-day clock was the District Court's April 4, 1989, order, which reversed the Secretary's decision denying disability benefits and remanded the case to the Secretary for further proceedings. In cases reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand to the Secretary are set forth in sentence four and sentence six of § 405(g), which are set forth in the margin.[1] See Melkonyan, supra, at 99-100. Schaefer correctly *297 concedes that the District Court's remand order in this case was entered pursuant to sentence four.[2] He argues, however, that a district court proceeding under that provision need not enter a judgment at the time of remand, but may postpone it and retain jurisdiction pending completion of the administrative proceedings. That argument, however, is inconsistent with the plain language of sentence four, which authorizes a district court to enter a judgment "with or without" a remand order, not a remand order "with or without" a judgment. See Sullivan v. Finkelstein, 496 U.S. 617, 629 (1990). Immediate entry of judgment (as opposed to entry of judgment after post remand agency proceedings have been completed and their results filed with the court) is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand. See Melkonyan, supra, at 101-102. Nor is it possible to argue that the judgment authorized by sentence four, if it includes a remand, does not become a "final judgment"—as required by § 2412(d)—upon expiration of the time for appeal. If that were true, there would never be any final judgment in cases reversed and remanded for further agency proceedings (including those which suffer that fate after the Secretary has filed the results of a sentence-six remand). Sentence eight of § 405(g) states that "[t]he judgment of the court"—which must be a reference to a sentence-four judgment, since that is the only judgment authorized by § 405(g)—"shall be final except that it shall be *298 subject to review in the same manner as a judgment in other civil actions." Thus, when the time for seeking appellate review has run, the sentence-four judgment fits squarely within the term "final judgment" as used in § 2412(d), which is defined to mean "a judgment that is final and not appealable." 28 U.S. C. § 2412(d)(2)(G). We described the law with complete accuracy in Melkonyan, when we said: "In sentence four cases, the filing period begins after the final judgment (`affirming, modifying, or reversing') is entered by the court and the appeal period has run, so that the judgment is no longer appealable. . . . In sentence six cases, the filing period does not begin until after the post remand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs." 501 U.S., at 102. Schaefer raises two arguments that merit further discussion. The first is based on our decision in Sullivan v. Hudson, 490 U.S. 877, 892 (1989), which held that fees incurred during administrative proceedings held pursuant to a district court's remand order could be recovered under EAJA. In order "to effectuate Hudson, " Schaefer contends, a district court entering a sentence-four remand order may properly hold its judgment in abeyance (and thereby delay the start of EAJA's 30-day clock) until post remand administrative proceedings are complete; otherwise, as far as fees incurred during the yet-to-be-held administrative proceedings are concerned, the claimant would be unable to comply with the requirement of § 2412(d)(1)(B) that the fee application include "the amount sought" and "an itemized statement . . . [of] the actual time expended" by attorneys and experts. In response, the Secretary argues that Hudson applies only to cases remanded pursuant to sentence six of § 405(g), where there is no final judgment and the clock does not begin to run. The difficulty with that, Schaefer contends, is that Hudson itself clearly involved a sentence-four remand. *299 On the last point, Schaefer is right. Given the facts recited by the Court in Hudson, the remand order there could have been authorized only under sentence four. See 490 U.S., at 880-881; cf. n. 2, supra. However, the facts in Hudson also show that the District Court had not terminated the case, but had retained jurisdiction during the remand. And that was a central element in our decision, as the penultimate sentence of the opinion shows: "We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains contin- uing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's enti- tlement to benefits, the proceedings on remand are an integral part of the `civil action' for judicial review, and thus attorney's fees for representation on remand are available subject to the other limitations in the EAJA." 490 U.S., at 892 (emphasis added). We have since made clear, in Finkelstein, that that retention of jurisdiction, that failure to terminate the case, was error: Under § 405(g), "each final decision of the Secretary [is]reviewable by a separate piece of litigation," and a sentencefour remand order "terminate[s] the civil action" seeking judicial review of the Secretary's final decision. 496 U.S., at 624-625 (emphases added). What we adjudicated in Hudson, in other words, was a hybrid: a sentence-four remand that the District Court had improperly (but without objection) treated like a sentence-six remand.[3] We specifically *300 noted in Melkonyan that Hudson was limited to a "narrow class of qualifying administrative proceedings" where "the district court retains jurisdiction of the civil action" pending the completion of the administrative proceedings. 501 U.S., at 97. We therefore do not consider the holding of Hudson binding as to sentence-four remands that are ordered (as they should be) without retention of jurisdiction, or that are ordered with retention of jurisdiction that is challenged.[4] Schaefer's second argument is that a sentence-four remand order cannot be considered a "final judgment" for purposes of § 2412(d)(1)(B) because that provision requires the party seeking fees to submit an application "show[ing] that [he] is a prevailing party." That showing, Schaefer contends, cannot be made until the proceedings on remand are complete, since a Social Security claimant does not "prevail" until he is awarded Social Security benefits. The premise of this argument is wrong. No holding of this Court has ever denied prevailing-party status (under § 2412(d)(1)(B)) to a plaintiff who won a remand order pursuant to sentence four of § 405(g). Dicta in Hudson stated that "a Social Security *301 claimant would not, as a general matter, be a prevailing party within the meaning of the EAJA merely because a court had remanded the action to the agency for further proceedings." 490 U.S., at 887. But that statement (like the holding of the case) simply failed to recognize the distinction between a sentence-four remand, which terminates the litigation with victory for the plaintiff, and a sentence-six remand, which does not. The sharp distinction between the two types of remand had not been made in the lower court opinions in Hudson, see Hudson v. Secretary of Health and Human Services, 839 F.2d 1453 (CA11 1988); App. to Pet. for Cert. in Sullivan v. Hudson, O. T. 1988, No. 616, pp. 17a—20a (setting forth unpublished District Court opinion), was not included in the question presented for decision,[5] and was mentioned for the first time in the closing pages of the Secretary's reply brief, see Reply Brief for Petitioner in Sullivan v. Hudson, O. T. 1988, No. 616, pp. 14-17. It is only decisions after Hudson —specifically Finkelstein and Melkonyan — which establish that the sentence-four, sentence-six distinction is crucial to the structure of judicial review established under § 405(g). See Finkelstein, 496 U. S., at 626; Melkonyan, 501 U. S., at 97-98. Hudson `s dicta that remand does not generally confer prevailing-party status relied on three cases, none of which supports that proposition as applied to sentence-four remands. Hanrahan v. Hampton, 446 U.S. 754, 758-759 (1980), rejected an assertion of prevailing-party status, not by virtue of having secured a remand, but by virtue of having obtained a favorable procedural ruling (the reversal on appeal of a directed verdict) during the course of the judicial proceedings. Hewitt v. Helms, 482 U.S. 755 (1987), held *302 that a plaintiff does not become a prevailing party merely by obtaining "a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff, " id., at 763 (emphasis added). (A sentence-four remand, of course, is a judgment for the plaintiff.) And the third case cited in Hudson, Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782 (1989), affirmatively supports the proposition that a party who wins a sentencefour remand order is a prevailing party. Garland held that status to have been obtained "[i]f the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit." Id., at 791-792 (citation and internal quotation marks omitted). Obtaining a sentence-four judgment reversing the Secretary's denial of benefits certainly meets this description. See also Farrar v. Hobby, 506 U.S. 103 (1992). III Finally, Schaefer argues that, even if the District Court should have entered judgment in connection with its April 4, 1989 order remanding the case to the Secretary, the fact remains that it did not. And since no judgment was entered, he contends, the 30-day time period for filing an application for EAJA fees cannot have run. We agree. An EAJA application may be filed until 30 days after a judgment becomes "not appealable"—i. e., 30 days after the time for appeal has ended. See §§ 2412(d)(1)(B), (d)(2)(G); see also Melkonyan, 501 U. S., at 102. Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil case to which a federal officer is a party, the time for appeal does not end until 60 days after "entry of judgment," and that a judgment is considered entered for purposes of the Rule only if it has been "entered in compliance with Rul[e] 58 . . . of the Federal Rules of Civil Procedure." Fed. Rules App. Proc. 4(a)(1), (7). Rule 58, in turn, requires a district court to set forth every judgment "on a separate document" and provides that "[a] judgment is effective only when so set *303 forth." See United States v. Indrelunas, 411 U.S. 216, 220 (1973) (per curiam). Since the District Court's April 4 remand order was a final judgment, see supra, at 299, a "separate document" of judgment should have been entered. It is clear from the record that this was not done. The Secretary does not dispute that, but argues that a formal "separate document" of judgment is not needed for an order of a district court to become appealable. That is quite true, see 28 U.S. C. § 1291; Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978) (per curiam); Finkelstein, supra, at 628, n. 7, but also quite irrelevant. EAJA's 30-day time limit runs from the end of the period for appeal, not the beginning. Absent a formal judgment, the District Court's April 4 order remained "appealable" at the time that Schaefer filed his application for EAJA fees, and thus the application was timely under § 2412(d)(1).[6] * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Justice Stevens, with whom Justice Blackmun joins, concurring in the judgment.

This case concerns the proper timing of an application for attorney's fees under the Equal Access to Justice Act (EAJA) in a Social Security case. Under 4 U.S. C. 405(g), a claimant has the right to seek judicial review of a final *94 decision of the Secretary of Health and Human Services denying Social Security benefits. One possible outcome of such a suit is that the district court, pursuant to sentence four of 405(g), will enter "a judgment reversing the decision of the Secretary [and] remanding the cause for a rehearing." The issue here is whether the 30-day period for filing an application for EAJA fees begins immediately upon expiration of the time for appeal of such a "sentencefour remand order," or sometime after the administrative proceedings on remand are complete. I In 1986, respondent Richard Schaefer filed an application for disability benefits under Title II of the Social Security Act, as amended, 4 U.S. C. 401 et seq. ( ed. and Supp. III). He was denied benefits at the administrative level, and sought judicial review by filing suit against the Secretary as authorized by 405(g). Schaefer and the Secretary filed cross-motions for summary judgment. On April 4, 1989, the District Court held that the Secretary had committed three errors in ruling on Schaefer's case and entered an order stating that "the Secretary's decision denying disability insurance benefits to [Schaefer] is reversed, that the parties' cross-motions for summary judgment are denied, and that the case is remanded to the Secretary for further consideration in light of this Order." App. to Pet. for Cert. 7a. In accordance with this order, Schaefer's application for benefits was reconsidered at the administrative level, and was granted. On July 18, 1990, Schaefer returned to the District Court and filed an application for attorney's fees pursuant to EAJA. In response, the Secretary noted that Schaefer was required to file any application for EAJA fees "within thirty days of final judgment in the action," 8 U.S. C. 41(d)(1)(B), and argued that the relevant "final judgment" in the case was the administrative decision on *95 remand, which had become final on April 1990. The District Court stayed action on Schaefer's EAJA application pending this Court's imminent ruling in was announced shortly thereafter, holding that a final administrative decision could not constitute a "final judgment" for purposes of 41(d)(1)(B). In light of the Secretary changed positions to argue that EAJA's 30-day clock began running when the District Court's April 4, 1989 order (not the administrative ruling on remand) became final, which would have occurred at the end of the 60 days for appeal provided under Federal Rule of Appellate Procedure 4(a). Thus, the Secretary concluded, Schaefer's time to file his EAJA application expired on July 3, 1989, over a year before the application was filed. The District Court, however, found Schaefer's EAJA application timely under the controlling Circuit precedent of which held that a sentence-four remand order is not a final judgment where "the district court retain[s] jurisdiction and plan[s] to enter dispositive sentence four judgmen[t]" after the administrative proceedings on remand are complete. The District Court went on to rule that Schaefer was entitled to $1,37.50 in attorney's fees. The Secretary fared no better on appeal. The Eighth Circuit declined the Secretary's suggestion for en banc reconsideration of Welter, and affirmed the District Court in an unpublished per curiam opinion. Judgt. order reported 0 F.d 1053 The Secretary filed a petition for certiorari, urging us to reverse the Court of Appeals summarily. We granted certiorari, and set the case for oral argument. II The first sentence of 8 U.S. C. 41(d)(1)(B) provides: "A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, *96 submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." (Emphasis added.) In we held that the term "final judgment" in the highlighted phrase above "refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency." See 501 U.S., Thus, the only order in this case that could have resulted in the starting of EAJA's 30-day clock was the District Court's April 4, 1989, order, which reversed the Secretary's decision denying disability benefits and remanded the case to the Secretary for further proceedings. In cases reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand to the Secretary are set forth in sentence four and sentence six of 405(g), which are set forth in the margin.[1] See Schaefer correctly *97 concedes that the District Court's remand order in this case was entered pursuant to sentence four.[] He argues, however, that a district court proceeding under that provision need not enter a judgment at the time of remand, but may postpone it and retain jurisdiction pending completion of the administrative proceedings. That argument, however, is inconsistent with the plain language of sentence four, which authorizes a district court to enter a judgment "with or without" a remand order, not a remand order "with or without" a judgment. See Immediate entry of judgment (as opposed to entry of judgment after post remand agency proceedings have been completed and their results filed with the court) is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand. See Nor is it possible to argue that the judgment authorized by sentence four, if it includes a remand, does not become a "final judgment"—as required by 41(d)—upon expiration of the time for appeal. If that were true, there would never be any final judgment in cases reversed and remanded for further agency proceedings (including those which suffer that fate after the Secretary has filed the results of a sentence-six remand). Sentence eight of 405(g) states that "[t]he judgment of the court"—which must be a reference to a sentence-four judgment, since that is the only judgment authorized by 405(g)—"shall be final except that it shall be *98 subject to review in the same manner as a judgment in other civil actions." Thus, when the time for seeking appellate review has run, the sentence-four judgment fits squarely within the term "final judgment" as used in 41(d), which is defined to mean "a judgment that is final and not appealable." 8 U.S. C. 41(d)()(G). We described the law with complete accuracy in when we said: "In sentence four cases, the filing period begins after the final judgment (`affirming, modifying, or reversing') is entered by the court and the appeal period has run, so that the judgment is no longer appealable. In sentence six cases, the filing period does not begin until after the post remand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs." Schaefer raises two arguments that merit further discussion. The first is based on our decision in which held that fees incurred during administrative proceedings held pursuant to a district court's remand order could be recovered under EAJA. In order "to effectuate Hudson, " Schaefer contends, a district court entering a sentence-four remand order may properly hold its judgment in abeyance (and thereby delay the start of EAJA's 30-day clock) until post remand administrative proceedings are complete; otherwise, as far as fees incurred during the yet-to-be-held administrative proceedings are concerned, the claimant would be unable to comply with the requirement of 41(d)(1)(B) that the fee application include "the amount sought" and "an itemized statement [of] the actual time expended" by attorneys and experts. In response, the Secretary argues that Hudson applies only to cases remanded pursuant to sentence six of 405(g), where there is no final judgment and the clock does not begin to run. The difficulty with that, Schaefer contends, is that Hudson itself clearly involved a sentence-four remand. *99 On the last point, Schaefer is right. Given the facts recited by the Court in Hudson, the remand order there could have been authorized only under sentence four. See -881; cf. n. However, the facts in Hudson also show that the District Court had not terminated the case, but had retained jurisdiction during the remand. And that was a central element in our decision, as the penultimate sentence of the opinion shows: "We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains contin- uing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's enti- tlement to benefits, the proceedings on remand are an integral part of the `civil action' for judicial review, and thus attorney's fees for representation on remand are available subject to the other limitations in the EAJA." 490 U.S., at We have since made clear, in that that retention of jurisdiction, that failure to terminate the case, was error: Under 405(g), "each final decision of the Secretary [is]reviewable by a separate piece of litigation," and a sentencefour remand order "terminate[s] the civil action" seeking judicial review of the Secretary's final 496 U.S., at 64-65 What we adjudicated in Hudson, in other words, was a hybrid: a sentence-four remand that the District Court had improperly (but without objection) treated like a sentence-six remand.[3] We specifically *300 noted in that Hudson was limited to a "narrow class of qualifying administrative proceedings" where "the district court retains jurisdiction of the civil action" pending the completion of the administrative proceedings. We therefore do not consider the holding of Hudson binding as to sentence-four remands that are ordered (as they should be) without retention of jurisdiction, or that are ordered with retention of jurisdiction that is challenged.[4] Schaefer's second argument is that a sentence-four remand order cannot be considered a "final judgment" for purposes of 41(d)(1)(B) because that provision requires the party seeking fees to submit an application "show[ing] that [he] is a prevailing party." That showing, Schaefer contends, cannot be made until the proceedings on remand are complete, since a Social Security claimant does not "prevail" until he is awarded Social Security benefits. The premise of this argument is wrong. No holding of this Court has ever denied prevailing-party status (under 41(d)(1)(B)) to a plaintiff who won a remand order pursuant to sentence four of 405(g). Dicta in Hudson stated that "a Social Security *301 claimant would not, as a general matter, be a prevailing party within the meaning of the EAJA merely because a court had remanded the action to the agency for further proceedings." But that statement (like the holding of the case) simply failed to recognize the distinction between a sentence-four remand, which terminates the litigation with victory for the plaintiff, and a sentence-six remand, which does not. The sharp distinction between the two types of remand had not been made in the lower court opinions in Hudson, see 839 F.d 1453 ; App. to Pet. for Cert. in O. T. No. 616, pp. 17a—0a (setting forth unpublished District Court opinion), was not included in the question presented for decision,[5] and was mentioned for the first time in the closing pages of the Secretary's reply brief, see Reply Brief for Petitioner in O. T. No. 616, pp. 14-17. It is only decisions after Hudson —specifically and — which establish that the sentence-four, sentence-six distinction is crucial to the structure of judicial review established under 405(g). See 496 U. S., at 66; -98. Hudson `s dicta that remand does not generally confer prevailing-party status relied on three cases, none of which supports that proposition as applied to sentence-four remands. rejected an assertion of prevailing-party status, not by virtue of having secured a remand, but by virtue of having obtained a favorable procedural ruling (the reversal on appeal of a directed verdict) during the course of the judicial proceedings. 48 U.S. 755 held *30 that a plaintiff does not become a prevailing party merely by obtaining "a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff, " (A sentence-four remand, of course, is a judgment for the plaintiff.) And the third case cited in Hudson, Texas State Teachers 489 U.S. 78 affirmatively supports the proposition that a party who wins a sentencefour remand order is a prevailing party. Garland held that status to have been obtained "[i]f the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit sought in bringing suit." at 791-79 Obtaining a sentence-four judgment reversing the Secretary's denial of benefits certainly meets this description. See also III Finally, Schaefer argues that, even if the District Court should have entered judgment in connection with its April 4, 1989 order remanding the case to the Secretary, the fact remains that it did not. And since no judgment was entered, he contends, the 30-day time period for filing an application for EAJA fees cannot have run. We agree. An EAJA application may be filed until 30 days after a judgment becomes "not appealable"—i. e., 30 days after the time for appeal has ended. See 41(d)(1)(B), (d)()(G); see also 501 U. S., at 10. Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil case to which a federal officer is a party, the time for appeal does not end until 60 days after "entry of judgment," and that a judgment is considered entered for purposes of the Rule only if it has been "entered in compliance with Rul[e] 58 of the Federal Rules of Civil Procedure." Fed. Rules App. Proc. 4(a)(1), (7). Rule 58, in turn, requires a district court to set forth every judgment "on a separate document" and provides that "[a] judgment is effective only when so set *303 forth." See United 411 U.S. 16, 0 Since the District Court's April 4 remand order was a final judgment, see at 99, a "separate document" of judgment should have been entered. It is clear from the record that this was not done. The Secretary does not dispute that, but argues that a formal "separate document" of judgment is not needed for an order of a district court to become appealable. That is quite true, see 8 U.S. C. 191; Bankers Trust ; at 68, n. 7, but also quite irrelevant. EAJA's 30-day time limit runs from the end of the period for appeal, not the beginning. Absent a formal judgment, the District Court's April 4 order remained "appealable" at the time that Schaefer filed his application for EAJA fees, and thus the application was timely under 41(d)(1).[6] * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Justice Stevens, with whom Justice Blackmun joins, concurring in the judgment.

Justice Stevens

majority

Johnson v. Fankell

https://www.courtlistener.com/opinion/118124/johnson-v-fankell/

https://www.courtlistener.com/api/rest/v3/clusters/118124/

1996-069

The question presented is whether defendants in an action brought under Rev. Stat. § 1979, 42 U.S. C. § 1983, in state court have a federal right to an interlocutory appeal from a denial of qualified immunity. We hold that they do not. I Petitioners are officials of the Idaho Liquor Dispensary. Respondent, a former liquor store clerk, brought this action for damages under § 1983 in the District Court for the County of Bonner, Idaho. She alleged that petitioners deprived her of property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution when they terminated her employment. Petitioners moved to dismiss the complaint on the ground that they were entitled to qualified immunity. They contended that, at the time of respondent's dismissal, they reasonably believed that she was a probationary employee who had no property interest in her job. Accordingly, petitioners argued, her termination did not violate clearly established law. The trial court *914 denied the motion,[1] and petitioners filed a timely notice of appeal to the Supreme Court of the State of Idaho. The State Supreme Court entered an order dismissing the appeal. The court explained that an order denying a motion for summary judgment is not appealable under Idaho Appellate Rule 11(a)(1) "for the reason it is not from a final order or Judgment." App. 67. It also rejected petitioners' arguments that the order was appealable under 42 U.S. C. § 1983 and Behrens v. Pelletier, 516 U.S. 299 (1996). Petitioners sought rehearing, again arguing that the order was final within the meaning of the Idaho Appellate Rule, and, in the alternative, that they had a right to appeal as a matter of federal law. The court denied rehearing and dismissed the appeal. Petitioners then filed a petition in this Court seeking either a writ of certiorari or a writ of mandamus. They pointed out that some state courts, unlike the Idaho Supreme Court, allow interlocutory appeals of orders denying qualified immunity on the theory that such review is necessary to protect a substantial federal right, see McLin v. Trimble, 795 P.2d 1035, 1037-1038 (Okla. 1990); Lakewood v. Brace, 919 P.2d 231, 238-240 (Colo. 1996). We granted certiorari to resolve the conflict, 519 U.S. 947 (1996), and now affirm. II We have recognized a qualified immunity defense for both federal officials sued under the implied cause of action asserted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and state officials sued under 42 U.S. C. § 1983. In both situations, "officials performing discretionary function[s] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable *915 person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This "qualified immunity" defense is valuable to officials asserting it for two reasons. First, if it is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability. Second, when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, it provides the defendant with an immunity from the burdens of trial as well as a defense to liability.[2] Indeed, one reason for adopting the objective test announced in Harlow was to "permit the resolution of many in substantial claims on summary judgment." Ibid. Consistent with that purpose, we held in Mitchell v. Forsyth, 472 U.S. 511, 524-530 (1985), that a Federal District Court order rejecting a qualified immunity defense on the ground that the defendant's actions—if proved—would have violated clearly established law may be appealed immediately as a "final decision" within the meaning of the general federal appellate jurisdiction statute, 28 U.S. C. § 1291.[3] If this action had been brought in a federal court, therefore, petitioners would have had a right to take an appeal from the trial court's order denying their motion for summary judgment. Relying on the facts (a) that respondent has asserted a federal claim under a federal statute, and (b) that they are *916 asserting a defense provided by federal law, petitioners submit that the Idaho courts must protect their right to avoid the burdens of trial by allowing the same interlocutory appeal that would be available in a federal court. They support this submission with two different arguments: First, that when the Idaho courts construe their own rules allowing appeals from final judgments, they must accept the federal definition of finality in cases brought under § 1983; and second, that if those rules do not authorize the appeal, they are pre-empted by federal law. We find neither argument persuasive. III We can easily dispense with petitioners' first contention that Idaho must follow the federal construction of a "final decision." Even if the Idaho and federal statutes contained identical language—and they do not[4]—the interpretation of the Idaho statute by the Idaho Supreme Court would be binding on federal courts. Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State. See, e. g., New York v. Ferber, 458 U.S. 747, 767 (1982); Exxon Corp. v. Department of Revenue of Wis., 447 U.S. 207, 226, n. 9 (1980); Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967). This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See Wardius v. Oregon, 412 U.S. 470, 477 (1973). The definition of the term "final decision" that we adopted in Mitchell was an application of the "collateral order" doctrine first recognized in Cohen v. Beneficial Industrial Loan *917 Corp., 337 U.S. 541 (1949). In that case, as in all of our cases following it, we were construing the federal statutory language of 28 U.S. C. § 1291.[5] While some States have adopted a similar "collateral order" exception when construing their jurisdictional statutes,[6] we have never suggested that federal law compelled them to do so. Indeed, a number of States employ collateral order doctrines that reject the limitations this Court has placed on § 1291.[7] Idaho could, of *918 course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on § 1291. But that is clearly a choice for that court to make, not one that we have any authority to command. IV Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre-empted by § 1983. Relying heavily on Felder v. Casey, 487 U.S. 131 (1988), petitioners first assert that preemption is necessary to avoid "different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court," id., at 138. Second, they argue that the state procedure "impermissibly burden[s]" the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial.[8] For two reasons, petitioners have a heavy burden of persuasion in making this argument. First, our normal presumption against pre-emption is buttressed by the fact that the Idaho Supreme Court's dismissal of the appeal rested squarely on a neutral state Rule regarding the administration of the state courts.[9] As we explained in Howlett v. Rose, 496 U.S. 356, 372 (1990): *919 "When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950); Georgia Rail Road & Banking Co. v. Musgrove, 335 U.S. 900 (1949) (per curiam); Herb v. Pitcairn, 324 U.S. 117 (1945); Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, `bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.' Hart, [The Relations Between State and Federal Law], 54 Colum. L. Rev. [489, 508 (1954)]; see also Southland Corp. v. Keating, 465 U.S. 1, 33 (1984) (O'Connor, J., dissenting); FERC v. Mississippi, 456 U. S. [742, 774 (1982)] (opinion of Powell, J.). The States thus have great latitude to establish the structure and jurisdiction of their own courts." A second barrier to petitioners' argument arises from the nature of the interest protected by the defense of qualified immunity. Petitioners' argument for pre-emption is bottomed on their claims that the Idaho rules are interfering with their federal rights. While it is true that the defense has its source in a federal statute (§ 1983), the ultimate purpose of qualified immunity is to protect the State and its officials from overenforcement of federal rights. The Idaho Supreme Court's application of the State's procedural rules in this context is thus less an interference with federal interests than a judgment about how best to balance the competing state interests of limiting interlocutory appeals and providing *920 state officials with immediate review of the merits of their defense.[10] Petitioners' arguments for pre-emption are not strong enough to overcome these considerable hurdles. Contrary to petitioners' assertions, Idaho's decision not to provide appellate review for the vast majority of interlocutory orders— including denials of qualified immunity in § 1983 cases—is not "outcome determinative" in the sense that we used that term when we held that Wisconsin's notice-of-claim statute could not be applied to defeat a federal civil rights action brought in state courts under § 1983. Felder, 487 U. S., at 153. The failure to comply with the Wisconsin statute in Felder resulted in a judgment dismissing a complaint that would not have been dismissed—at least not without a judicial determination of the merits of the claim—if the case had been filed in a federal court. One of the primary grounds for our decision was that, because the notice-of-claim requirement would "frequently and predictably produce different outcomes" depending on whether § 1983 claims were brought in state or federal court, it was inconsistent with the federal interest in uniformity. Id., at 138.[11] *921 Petitioners' reliance on Felder is misplaced because "outcome," as we used the term there, referred to the ultimate disposition of the case. If petitioners' claim to qualified immunity is meritorious, there is no suggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case. Petitioners' second argument for pre-emption of the state procedural Rule is that the Rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in § 1983, but the right to immediate appellate review of that ruling in a federal case has its source in § 1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural right that simply does not apply in a nonfederal forum.[12] The locus of the right to interlocutory appeal in § 1291, rather than in § 1983 itself, is demonstrated by our holding *922 in Johnson v. Jones, 515 U.S. 304 (1995). In that case, government officials asserting qualified immunity claimed entitlement to an interlocutory appeal of a District Court order denying their motion for summary judgment on the ground that the record showed a genuine issue of material fact whether the officials actually engaged in the conduct that constituted a clear violation of constitutional law. Id., at 307-308. We concluded that this circumstance was different from that presented in Mitchell, 472 U. S., at 528, in which the subject of the interlocutory appeal was whether a given set of facts showed a violation of clearly established law, and held that although § 1291 did allow an interlocutory appeal in the latter circumstance, such an appeal was not allowed in the former. In so holding, we acknowledged that "whether a district court's denial of summary judgment amounts to (a) a determination about pre-existing `clearly established' law, or (b) a determination about `genuine' issues of fact for trial, it still forces public officials to trial." 515 U.S., at 317. But we concluded that the strong "countervailing considerations" surrounding appropriate interpretation of § 1291 were of sufficient importance to outweigh the officials' interest in avoiding the burdens of litigation. The "countervailing considerations" at issue here are even stronger than those presented in Johnson. When preemption of state law is at issue, we must respect the "principles [that] are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law." Howlett, 496 U. S., at 372-373. This respect is at its apex when we confront a claim that federal law requires a State to undertake something as fundamental as restructuring the operation of its courts.[13] We therefore cannot agree with petitioners that *923 § 1983's recognition of the defense of qualified immunity preempts a State's consistent application of its neutral procedural rules, even when those rules deny an interlocutory appeal in this context. The judgment of the Supreme Court of the State of Idaho dismissing petitioners' appeal is therefore affirmed. It is so ordered.

The question presented is whether defendants in an action brought under Rev. Stat. 1979, 42 U.S. C. 1983, in state court have a federal right to an interlocutory appeal from a denial of qualified immunity. We hold that they do not. I Petitioners are officials of the Idaho Liquor Dispensary. Respondent, a former liquor store clerk, brought this action for damages under 1983 in the District Court for the County of Bonner, Idaho. She alleged that petitioners deprived her of property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution when they terminated her employment. Petitioners moved to dismiss the complaint on the ground that they were entitled to qualified immunity. They contended that, at the time of respondent's dismissal, they reasonably believed that she was a probationary employee who had no property interest in her job. Accordingly, petitioners argued, her termination did not violate clearly established law. The trial court *914 denied the motion,[1] and petitioners filed a timely notice of appeal to the Supreme Court of the State of Idaho. The State Supreme Court entered an order dismissing the appeal. The court explained that an order denying a motion for summary judgment is not appealable under Idaho Appellate Rule 11(a)(1) "for the reason it is not from a final order or Judgment." App. 67. It also rejected petitioners' arguments that the order was appealable under 42 U.S. C. 1983 and Petitioners sought rehearing, again arguing that the order was final within the meaning of the Idaho Appellate Rule, and, in the alternative, that they had a right to appeal as a matter of federal law. The court denied rehearing and dismissed the appeal. Petitioners then filed a petition in this Court seeking either a writ of certiorari or a writ of mandamus. They pointed out that some state courts, unlike the Idaho Supreme Court, allow interlocutory appeals of orders denying qualified immunity on the theory that such review is necessary to protect a substantial federal right, see ; We granted certiorari to resolve the conflict, and now affirm. II We have recognized a qualified immunity defense for both federal officials sued under the implied cause of action asserted in and state officials sued under 42 U.S. C. 1983. In both situations, "officials performing discretionary function[s] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable *915 person would have known." This "qualified immunity" defense is valuable to officials asserting it for two reasons. First, if it is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability. Second, when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, it provides the defendant with an immunity from the burdens of trial as well as a defense to liability.[2] Indeed, one reason for adopting the objective test announced in Harlow was to "permit the resolution of many in substantial claims on summary judgment." Consistent with that purpose, we held in that a Federal District Court order rejecting a qualified immunity defense on the ground that the defendant's actions—if proved—would have violated clearly established law may be appealed immediately as a "final decision" within the meaning of the general federal appellate jurisdiction statute, 28 U.S. C. 1291.[3] If this action had been brought in a federal court, therefore, petitioners would have had a right to take an appeal from the trial court's order denying their motion for summary judgment. Relying on the facts (a) that respondent has asserted a federal claim under a federal statute, and (b) that they are *916 asserting a defense provided by federal law, petitioners submit that the Idaho courts must protect their right to avoid the burdens of trial by allowing the same interlocutory appeal that would be available in a federal court. They support this submission with two different arguments: First, that when the Idaho courts construe their own rules allowing appeals from final judgments, they must accept the federal definition of finality in cases brought under 1983; and second, that if those rules do not authorize the appeal, they are pre-empted by federal law. We find neither argument persuasive. III We can easily dispense with petitioners' first contention that Idaho must follow the federal construction of a "final decision." Even if the Idaho and federal statutes contained identical language—and they do not[4]—the interpretation of the Idaho statute by the Idaho Supreme Court would be binding on federal courts. Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State. See, e. g., New ; Exxon ; This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See The definition of the term "final decision" that we adopted in was an application of the "collateral order" doctrine first recognized in In that case, as in all of our cases following it, we were construing the federal statutory language of 28 U.S. C. 1291.[5] While some States have adopted a similar "collateral order" exception when construing their jurisdictional statutes,[6] we have never suggested that federal law compelled them to do so. Indeed, a number of States employ collateral order doctrines that reject the limitations this Court has placed on 1291.[7] Idaho could, of *918 course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on 1291. But that is clearly a choice for that court to make, not one that we have any authority to command. IV Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre-empted by 1983. Relying heavily on petitioners first assert that preemption is necessary to avoid "different outcomes in 1983 litigation based solely on whether the claim is asserted in state or federal court," Second, they argue that the state procedure "impermissibly burden[s]" the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial.[8] For two reasons, petitioners have a heavy burden of persuasion in making this argument. First, our normal presumption against pre-emption is buttressed by the fact that the Idaho Supreme Court's dismissal of the appeal rested squarely on a neutral state Rule regarding the administration of the state courts.[9] As we explained in : *919 "When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. ; Georgia Rail Road & Banking ; ; The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, `bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.' Hart, [The Relations Between State and Federal Law], 54 Colum. L. Rev. [489, 508 (1954)]; see also Southland U.S. 1, ; FERC v. Mississippi, 456 U. S. [742, 774 ] (opinion of Powell, J.). The States thus have great latitude to establish the structure and jurisdiction of their own courts." A second barrier to petitioners' argument arises from the nature of the interest protected by the defense of qualified immunity. Petitioners' argument for pre-emption is bottomed on their claims that the Idaho rules are interfering with their federal rights. While it is true that the defense has its source in a federal statute ( 1983), the ultimate purpose of qualified immunity is to protect the State and its officials from overenforcement of federal rights. The Idaho Supreme Court's application of the State's procedural rules in this context is thus less an interference with federal interests than a judgment about how best to balance the competing state interests of limiting interlocutory appeals and providing *920 state officials with immediate review of the merits of their defense.[10] Petitioners' arguments for pre-emption are not strong enough to overcome these considerable hurdles. Contrary to petitioners' assertions, Idaho's decision not to provide appellate review for the vast majority of interlocutory orders— including denials of qualified immunity in 1983 cases—is not "outcome determinative" in the sense that we used that term when we held that Wisconsin's notice-of-claim statute could not be applied to defeat a federal civil rights action brought in state courts under 1983. The failure to comply with the Wisconsin statute in resulted in a judgment dismissing a complaint that would not have been dismissed—at least not without a judicial determination of the merits of the claim—if the case had been filed in a federal court. One of the primary grounds for our decision was that, because the notice-of-claim requirement would "frequently and predictably produce different outcomes" depending on whether 1983 claims were brought in state or federal court, it was inconsistent with the federal interest in uniformity.[11] *921 Petitioners' reliance on is misplaced because "outcome," as we used the term there, referred to the ultimate disposition of the case. If petitioners' claim to qualified immunity is meritorious, there is no suggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case. Petitioners' second argument for pre-emption of the state procedural Rule is that the Rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in 1983, but the right to immediate appellate review of that ruling in a federal case has its source in 1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural right that simply does not apply in a nonfederal forum.[12] The locus of the right to interlocutory appeal in 1291, rather than in 1983 itself, is demonstrated by our holding *922 in In that case, government officials asserting qualified immunity claimed entitlement to an interlocutory appeal of a District Court order denying their motion for summary judgment on the ground that the record showed a genuine issue of material fact whether the officials actually engaged in the conduct that constituted a clear violation of constitutional law. We concluded that this circumstance was different from that presented in in which the subject of the interlocutory appeal was whether a given set of facts showed a violation of clearly established law, and held that although 1291 did allow an interlocutory appeal in the latter circumstance, such an appeal was not allowed in the former. In so holding, we acknowledged that "whether a district court's denial of summary judgment amounts to (a) a determination about pre-existing `clearly established' law, or (b) a determination about `genuine' issues of fact for trial, it still forces public officials to trial." But we concluded that the strong "countervailing considerations" surrounding appropriate interpretation of 1291 were of sufficient importance to outweigh the officials' interest in avoiding the burdens of litigation. The "countervailing considerations" at issue here are even stronger than those presented in Johnson. When preemption of state law is at issue, we must respect the "principles [that] are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law." Howlett, 496 U. S., at -373. This respect is at its apex when we confront a claim that federal law requires a State to undertake something as fundamental as restructuring the operation of its courts.[13] We therefore cannot agree with petitioners that *923 1983's recognition of the defense of qualified immunity preempts a State's consistent application of its neutral procedural rules, even when those rules deny an interlocutory appeal in this context. The judgment of the Supreme Court of the State of Idaho dismissing petitioners' appeal is therefore affirmed. It is so ordered.

Justice Brennan

majority

Bureau of Alcohol, Tobacco and Firearms v. FLRA

https://www.courtlistener.com/opinion/111049/bureau-of-alcohol-tobacco-and-firearms-v-flra/

https://www.courtlistener.com/api/rest/v3/clusters/111049/

1983-009

Title VII of the Civil Service Reform Act of 1978 (Act), Pub. L. 95-454, 92 Stat. 1214, 5 U.S. C. § 7131(a) (1982 ed.), requires federal agencies to grant "official time" to employees *91 representing their union in collective bargaining with the agencies. The grant of official time allows the employee negotiators to be paid as if they were at work, whenever they bargain during hours when they would otherwise be on duty. The Federal Labor Relations Authority (FLRA or Authority) concluded that the grant of official time also entitles employee union representatives to a per diem allowance and reimbursement for travel expenses incurred in connection with collective bargaining. 2 F. L. R. A. 265 (1979). In this case, the Court of Appeals for the Ninth Circuit enforced an FLRA order requiring an agency to pay a union negotiator travel expenses and a per diem, finding the Authority's interpretation of the statute "reasonably defensible." 672 F.2d 732, 733 (1982). Three other Courts of Appeals have rejected the FLRA's construction of the Act.[1] We granted certiorari to resolve this conflict, 459 U.S. 1145 (1983), and now reverse. I A Title VII of the Civil Service Reform Act, part of a comprehensive revision of the laws governing the rights and obligations of civil servants, contains the first statutory scheme governing labor relations between federal agencies and their employees. Prior to enactment of Title VII, labor-management relations in the federal sector were governed by a program established in a 1962 Executive Order.[2] The Executive Order regime, under which federal employees had *92 limited rights to engage in concerted activity, was most recently administered by the Federal Labor Relations Council, a body composed of three Executive Branch management officials whose decisions were not subject to judicial review.[3] The new Act, declaring that "labor organizations and collective bargaining in the civil service are in the public interest," 5 U.S. C. § 7101(a) (1982 ed.), significantly strengthened the position of public employee unions while carefully preserving the ability of federal managers to maintain "an effective and efficient Government," § 7101(b).[4] Title VII expressly protects the rights of federal employees "to form, join, or assist any labor organization, or to refrain from any such activity," § 7102, and imposes on federal agencies and labor organizations a duty to bargain collectively in good faith, §§ 7116(a)(5) and (b)(5). The Act excludes certain management prerogatives from the scope of negotiations, although an agency must bargain over the procedures by which these management rights are exercised. See § 7106. In general, unions and federal agencies must negotiate over terms and conditions of employment, unless a bargaining proposal is inconsistent with existing federal law, rule, or regulation. See §§ 7103(a), 7114, 7116, and 7117(a). Strikes and certain other forms of concerted activities by federal employees are illegal and constitute unfair labor practices under the Act, § 7116(b)(7)(A). The Act replaced the management-controlled Federal Labor Relations Council with the FLRA, a three-member independent and bipartisan body within the Executive Branch with responsibility for supervising the collective-bargaining process and administering other aspects of federal labor relations established by Title VII. § 7104. The Authority, the role of which in the public sector is analogous *93 to that of the National Labor Relations Board in the private sector, see H. R. Rep. No. 95-1403, p. 41 (1978), adjudicates negotiability disputes, unfair labor practice complaints, bargaining unit issues, arbitration exceptions, and conflicts over the conduct of representational elections. See §§ 7105(a)(2) (A)-(I). In addition to its adjudicatory functions, the Authority may engage in formal rulemaking, § 7134, and is specifically required to "provide leadership in establishing policies and guidance relating to matters" arising under the Act, § 7105(a)(1). The FLRA may seek enforcement of its adjudicatory orders in the United States courts of appeals, § 7123(b), and persons, including federal agencies, aggrieved by any final FLRA decision may also seek judicial review in those courts, § 7123(a). B Petitioner, the Bureau of Alcohol, Tobacco and Firearms (BATF or Bureau), an agency within the Department of the Treasury, maintained a regional office in Lodi, California. Respondent National Treasury Employees Union (NTEU or Union) was the exclusive representative of BATF employees stationed in the Lodi office. In November 1978, the Bureau notified NTEU that it intended to move the Lodi office to Sacramento and to establish a reduced duty post at a new location in Lodi. The Union informed BATF that it wished to negotiate aspects of the move's impact on employees in the bargaining unit. As its agent for these negotiations, the Union designated Donald Pruett, a BATF employee and NTEU steward who lived in Madera, California, and was stationed in Fresno. Bureau officials agreed to meet with Pruett at the new offices and discuss the planned move. Pruett asked that his participation in the discussions be classified as "official time" so that he could receive his regular salary while attending the meetings. The Bureau denied the request and directed Pruett to take either annual leave or leave without pay for the day of the meeting. On February 23, 1979, Bureau officials met with Pruett at the proposed new Sacramento offices and inspected the physical *94 amenities, including the restrooms, dining facilities, and parking areas. Pruett and the BATF officials then drove to Lodi where they conducted a similar inspection of the new reduced duty post. Finally, the group repaired to the existing Lodi office where they discussed the planned move. After Pruett expressed his general satisfaction with the new facilities, he negotiated with the agency officials about such matters as parking arrangements, employee assignments, and the possibility of excusing employee tardiness for the first week of operations in the Sacramento office. Once the parties reached an agreement on the move, Pruett drove back to his home in Madera. Pruett had spent 11 1/2 hours traveling to and attending the meetings, and had driven more than 300 miles in his own car. When he renewed his request to have his participation at the meetings classified as official time, the Bureau informed him that it did not reimburse employees for expenses incurred in negotiations and that it granted official time only for quarterly collective-bargaining sessions and not for midterm discussions like those involved here. In June 1979, the Union filed an unfair labor practice charge with the FLRA, claiming that BATF had improperly compelled Pruett to take annual leave for the February 23 sessions. While the charge was pending, the FLRA issued an "Interpretation and Guidance" of general applicability which required federal agencies to pay salaries, travel expenses, and per diem allowances to union representatives engaged in collective bargaining with the agencies.[5] 2 F. L. R. A. 265 (1979). The Interpretation relied on 5 U.S. C. § 7131(a) *95 (1982 ed.), which provides that "[a]ny employee representing an exclusive representative in the negotiation of a collective bargaining agreement . . . shall be authorized official time for such purposes . . . ." The Authority concluded that an employee's entitlement to official time under this provision extends to "all negotiations between an exclusive representative and an agency, regardless of whether such negotiations pertain to the negotiation or renegotiation of a basic collective bargaining agreement." 2 F. L. R. A., at 268. The Authority further determined that § 7131(a) requires agencies to pay a per diem allowance and travel expenses to employees representing their union in such negotiations. Id., at 270. Based on the NTEU's pending charge against the Bureau, the General Counsel of the Authority issued a complaint and notice of hearing, alleging that the BATF had committed an unfair labor practice by refusing to grant Pruett official time for the February 23 meetings.[6] During the course of a subsequent hearing on the charge before an Administrative Law Judge, the complaint was amended to add a claim that, in addition to paying Pruett's salary for the day of the meetings, the BATF should have paid his travel expenses and a per diem allowance. Following the hearing, the ALJ determined *96 that negotiations had in fact taken place between Pruett and BATF officials at the February 23 meetings. Bound to follow the recent FLRA Interpretation and Guidance, the ALJ concluded that the Bureau had committed an unfair labor practice by failing to comply with § 7131(a). Accordingly, he ordered the Bureau to pay Pruett his regular salary for the day in question, as well as his travel costs and a per diem allowance. The ALJ also required the BATF to post a notice stating that the agency would do the same for all employee union representatives in future negotiations. The Bureau filed exceptions to the decision with the Authority, which, in September 1980, affirmed the decision of the ALJ, adopting his findings, conclusions, and recommended relief. 4 F. L. R. A. 288 (1980). The Bureau sought review in the United States Court of Appeals for the Ninth Circuit, and the Union intervened as a party in that appeal. The Bureau challenged both the FLRA's conclusion that § 7131(a) applies to midterm negotiations and its determination that the section requires payment of travel expenses and a per diem allowance. After deciding that the Authority's construction of its enabling Act was entitled to deference if it was "reasoned and supportable," 672 F.2d, at 735-736, the Court of Appeals enforced the Authority's order on both issues. Id., at 737, 738. On certiorari to this Court, petitioner does not seek review of the holding with respect to midterm negotiations. Only that aspect of the Court of Appeals' decision regarding travel expenses and per diem allowances is at issue here. II The FLRA order enforced by the Court of Appeals in this case was, as noted, premised on the Authority's earlier construction of § 7131(a) in its Interpretation and Guidance. Although we have not previously had occasion to consider an interpretation of the Civil Service Reform Act by the FLRA, we have often described the appropriate standard of judicial *97 review in similar contexts.[7] Like the National Labor Relations Board, see, e. g., NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963), the FLRA was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act. See § 7105; H. R. Rep. No. 95-1403, p. 41 (1978). Consequently, the Authority is entitled to considerable deference when it exercises its "special function of applying the general provisions of the Act to the complexities" of federal labor relations. Cf. NLRB v. Erie Resistor Corp., supra, at 236. See also Ford Motor Co. v. NLRB, 441 U.S. 488, 496 (1979); NLRB v. Iron Workers, 434 U.S. 335, 350 (1978); NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957). On the other hand, the "deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress." American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965). Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency's enabling Act, NLRB v. Iron Workers, supra, at 350, they must not "rubber-stamp . . . administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." NLRB v. Brown, 380 U.S. 278, 291-292 (1965). See Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, *98 166 (1971).[8] Guided by these principles, we turn to a consideration of the FLRA's construction of § 7131(a). III Title 5 U.S. C. § 7131(a) (1982 ed.) provides in full: "Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement *99 under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes." According to the House Committee that reported the bill containing § 7131, Congress used the term "official time" to mean "paid time." See H. R. Rep. No. 95-1403, p. 58 (1978). In light of this clear expression of congressional intent, the parties agree that employee union negotiators are entitled to their usual pay during collective-bargaining sessions that occur when the employee "otherwise would be in a duty status." Both the Authority, 2 F. L. R. A., at 269, and the Court of Appeals, 672 F.2d, at 737, recognized that there is no corresponding expression, either in the statute or the extensive legislative history, of a congressional intent to pay employee negotiators travel expenses and per diem allowances as well. Despite this congressional silence, respondents advance several reasons why the FLRA's determination that such payments are required is consistent with the policies underlying the Act. Each of these arguments proceeds from the assumption that, by providing employee negotiators with official time for bargaining, Congress rejected the model of federal labor relations that had shaped prior administrative practice. In its place, according to respondents, Congress substituted a new vision of collective bargaining under which employee negotiators, like management representatives, are considered "on the job" while bargaining and are therefore entitled to all customary forms of compensation, including travel expenses and per diem allowances.[9] In order to evaluate this claim, it is necessary briefly to review the rights of *100 employee negotiators to compensation prior to adoption of the Act. A Under the 1962 Executive Order establishing the first federal labor relations program, the decision whether to pay union representatives for the time spent in collective bargaining was left within the discretion of their employing agency,[10] apparently on the ground that, without some control by management, the length of such sessions could impose too great a burden on Government business. See Report of the President's Task Force on Employee-Management Relations in the Federal Service, reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, pp. 1177, 1203 (Comm. Print 1979) (hereinafter Leg. Hist.). Under this early scheme, employee negotiators were not entitled to per diem allowances and travel expenses, on the view that they were engaged, not in official business of the Government, but rather in activities "primarily in the interest of the employee organization." 44 Comp. Gen. 617, 618 (1965).[11] *101 Executive Order No. 11491, which became effective in 1970, cut back on the previous Order by providing that employees engaged in negotiations with their agencies could not receive official time, even at the agencies' discretion. See 3 CFR 861-862, 873-874 (1966-1970 Comp.). Again, the prohibition was based on the view that employee representatives work for their union, not for the Government, when negotiating an agreement with their employers. See Leg. Hist., at 1167. In 1971, however, at the recommendation of the Federal Labor Relations Council, an amending Executive Order allowed unions to negotiate with agencies to obtain official time for employee representatives, up to a maximum of either 40 hours, or 50% of the total time spent in bargaining. Exec. Order No. 11616, 3 CFR 605 (1971-1975 Comp.). The Council made clear that this limited authorization, which was intended "to maintain a reasonable policy with respect to union self-support and an incentive to economical and businesslike bargaining practices," Leg. Hist., at 1169, did not permit "[o]vertime, premium pay, or travel expenditures." Id., at 1264. The Senate version of the bill that became the Civil Service Reform Act would have retained the last Executive Order's restrictions on the authorization of official time. S. Rep. *102 No. 95-969, p. 112 (1978). Congress instead adopted the section in its present form, concluding, in the words of one Congressman, that union negotiators "should be allowed official time to carry out their statutory representational activities just as management uses official time to carry out its responsibilities." 124 Cong. Rec. 29188 (1978) (remarks of Rep. Clay). See H. R. Conf. Rep. No. 95-1717, p. 111 (1978). B Respondents suggest that, by rejecting earlier limitations on official time, Congress repudiated the view that employee negotiators work only for their union and not for the Government. Under the new vision of federal labor relations postulated by respondents, civil servants on both sides of the bargaining table are engaged in official business of the Government and must be compensated equally. Because federal employees representing the views of management receive travel expenses and per diem allowances, federal employees representing the views of labor are entitled to such payments as well. In support of this view, respondents rely on the Act's declaration that public sector collective bargaining is in "the public interest" and "contributes to the effective conduct of public business," § 7101(a), as well as on a number of specific provisions in the Act intended to equalize the position of management and labor. For instance, the Act requires agencies to deduct union dues from employees' paychecks and to transfer the funds to the union at no cost, § 7115(a);[12] in addition, agencies must furnish a variety of date useful to unions in the collective-bargaining process, § 7114(b)(4). Respondents also contend that Congress employed the term "official time" in § 7131 specifically to indicate that employee negotiators are engaged in Government business and therefore entitled to all of their usual forms of compensation. *103 Although Congress certainly could have adopted the model of collective bargaining advanced by respondents, we find no indications in the Act or its legislative history that it intended to do so. The Act's declaration that collective bargaining contributes to efficient government and therefore serves the public interest does not reflect a dramatic departure from the principles of the Executive Order regime under which employee negotiators had not been regarded as working for the Government. To the contrary, the declaration constitutes a strong congressional endorsement of the policy on which the federal labor relations program had been based since its creation in 1962. See, e. g., Exec. Order No. 10988, 3 CFR 521 (1959-1963 Comp.) ("participation of employees in the formulation and implementation of personnel policies affecting them contributes to effective conduct of public business"); Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.) ("public interest requires . . . modern and progressive work practices to facilitate improved employee performance and efficiency" and efficient government is "benefited by providing employees an opportunity to participate in the formulation and implementation of personnel policies and practices affecting the conditions of their employment"). See also S. Rep. No. 95-969, p. 12 (1978); 124 Cong. Rec. 29182 (1978) (remarks of Rep. Udall) ("What we really do is to codify the 1962 action of President Kennedy in setting up a basic framework of collective bargaining for Federal employees").[13] *104 Nor do the specific provisions of the Act aimed at equalizing the positions of management and labor suggest that Congress intended employee representatives to be treated as though they were "on the job" for all purposes. Indeed, the Act's provision of a number of specific subsidies for union activities supports precisely the opposite conclusion. As noted above, Congress expressly considered and ultimately rejected the approach to paid time that had prevailed under the Executive Order regime. See supra, at 101-102. In contrast, there is no reference in the statute or the legislative history to travel expenses and per diem allowances, despite the fact that these kinds of payments had also received administrative attention prior to passage of the Act, see supra, at 100, and n. 11. There is, of course, nothing inconsistent in paying the salaries, but not the expenses, of union negotiators. Congress might well have concluded that, although union representatives should not be penalized by a loss in salary while engaged in collective bargaining, they need not be further subsidized with travel and per diem allowances. The provisions of the Act intended to facilitate the collection of union dues, see § 7115, certainly suggest that Congress contemplated that unions would ordinarily pay their own expenses. Respondents also find their understanding of the role of union representatives supported by Congress' use of the phrase "official time" in § 7131(a). For respondents, the use of this term indicates an intent to treat employee negotiators "as doing the government's work for all the usual purposes," and therefore entitled to "all attributes of employment," including travel expenses and a per diem allowance. Brief for Respondent NTEU 24-28. They suggest that, if Congress intended to maintain only the employees' salaries, it would have granted them "leave without loss of pay," a term it has used in other statutes. See, e. g., 5 U.S. C. § 6321 (absence of veterans to attend funeral services), § 6322(a) (jury or witness duty), and § 6323 (military reserve duty) (1982 ed.). In contrast, Congress uses the terms "official *105 capacity" and "duty status" to indicate that an employee is "on the job" and entitled to all the usual liabilities and privileges of employment. See, e. g., §§ 5751, 6322(b) (employee summoned to testify in "official capacity" entitled to travel expenses).[14] The difficulty with respondents' argument is that Congress did not provide that employees engaged in collective bargaining are acting in their "official capacity," "on the job," or in a "duty status." Instead, the right to a salary conferred by § 7131(a) obtains only when "the employee otherwise would be in a duty status" (emphasis supplied). This qualifying language strongly suggests that union negotiators engaged in collective bargaining are not considered in a duty status and thereby entitled to all of their normal forms of compensation. Nor does the phrase "official time," borrowed from prior administrative practice, have the same meaning as "official capacity."[15] As noted above, employees on "official time" under the Executive Order regime were not generally entitled to travel expenses and a per diem allowance. See supra, at 100-101. Moreover, as respondents' own examples demonstrate, Congress does not rely on the mere use of the word "official" when it intends to allow travel expenses and per diems. Even as to those employees acting in an "official capacity," Congress generally provides explicit authorization for such payments. See, e. g., §§ 5702, 5751(b), 6322(b). In the Civil Service Reform Act itself, for instance, Congress expressly provided that members of the Federal Service *106 Impasses Panel are entitled to travel expenses and a per diem allowance, in addition to a salary. See §§ 5703, 7119(c)(4).[16] Perhaps recognizing that authority for travel expenses and per diem allowances cannot be found within the four corners of § 7131(a), respondents alternatively contend that the Authority's decision is supported by the Travel Expense Act, 5 U.S. C. § 5702(a) (1982 ed.), which provides that a federal employee "traveling on official business away from his designated post of duty . . . is entitled to . . . a per diem allowance." The Travel Expense Act is administered by the Comptroller General who has concluded that agencies may authorize per diem allowances for travel that is "sufficiently in the interest of the United States so as to be regarded as official business." 44 Comp. Gen. 188, 189 (1964). Under the Executive Order regime, the Comptroller General authorized per diem payments to employee negotiators pursuant to this statute upon a certification that the employees' travel served the convenience of the employing agency. See n. 11, supra. Based on its view that employee negotiators are "on the job," the Authority determined that union representatives engaged in collective bargaining are on "official business" and therefore entitled to a per diem allowance under the Travel Expense Act. 2 F. L. R. A., at 269. In support of this reasoning, the Authority notes that § 5702(a) has been construed broadly to authorize reimbursement in connection with a variety *107 of "quasi-official" activities, such as employees' attendance at their own personnel hearings and at privately sponsored conferences. See, e. g., Comptroller General of the United States, Travel in the Management and Operation of Federal Programs 1, App. I, p. 5 (Rpt. No. FPCD-77-11, Mar. 17, 1977); 31 Comp. Gen. 346 (1952). In each of these instances, however, the travel in question was presumably for the convenience of the agency and therefore clearly constituted "official business" of the Government. As we have explained, neither Congress' declaration that collective bargaining is in the public interest nor its use of the term of art "official time" warrants the conclusion that employee negotiators are on "official business" of the Government.[17] IV In passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest than it had been under the Executive Order regime. See supra, at 91-93. There is no evidence, however, that the Act departed from the basic assumption underlying collective bargaining in both the public *108 and the private sector that the parties "proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest." NLRB v. Insurance Agents, 361 U.S. 477, 488 (1960), quoted in General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 394 (1982). Nor did the Act confer on the FLRA an unconstrained authority to equalize the economic positions of union and management. See American Ship Building Co. v. NLRB, 380 U. S., at 316-318. We conclude, therefore, that the FLRA's interpretation of § 7131(a) constitutes an "unauthorized assumption by [the] agency of [a] major policy decisio[n] properly made by Congress." Id., at 318. The judgment of the Court of Appeals is Reversed.

Title VII of the Civil Service Reform Act of 1978 (Act), Stat. 1214, 5 U.S. C. 7131(a) ( ed.), requires federal agencies to grant "official time" to employees *91 representing their union in collective bargaining with the agencies. The grant of official time allows the employee negotiators to be paid as if they were at work, whenever they bargain during hours when they would otherwise be on duty. The Federal Labor Relations Authority (FLRA or Authority) concluded that the grant of official time also entitles employee union representatives to a per diem allowance and reimbursement for travel expenses incurred in connection with collective bargaining. 2 F. L. R. A. 265 In this case, the Court of for the Ninth Circuit enforced an FLRA order requiring an agency to pay a union negotiator travel expenses and a per diem, finding the Authority's interpretation of the statute "reasonably defensible." Three other Courts of have rejected the FLRA's construction of the Act.[1] We granted certiorari to resolve this conflict, and now reverse. I A Title VII of the Civil Service Reform Act, part of a comprehensive revision of the laws governing the rights and obligations of civil servants, contains the first statutory scheme governing labor relations between federal agencies and their employees. Prior to enactment of Title VII, labor-management relations in the federal sector were governed by a program established in a 12 Executive Order.[2] The Executive Order regime, under which federal employees had *92 limited rights to engage in concerted activity, was most recently administered by the Federal Labor Relations Council, a body composed of three Executive Branch management officials whose decisions were not subject to judicial review.[3] The new Act, declaring that "labor organizations and collective bargaining in the civil service are in the public interest," 5 U.S. C. 7101(a) ( ed.), significantly strengthened the position of public employee unions while carefully preserving the ability of federal managers to maintain "an effective and efficient Government," 7101(b).[4] Title VII expressly protects the rights of federal employees "to form, join, or assist any labor organization, or to refrain from any such activity," 7102, and imposes on federal agencies and labor organizations a duty to bargain collectively in good faith, 76(a)(5) and (b)(5). The Act excludes certain management prerogatives from the scope of negotiations, although an agency must bargain over the procedures by which these management rights are exercised. See 7106. In general, unions and federal agencies must negotiate over terms and conditions of employment, unless a bargaining proposal is inconsistent with existing federal law, rule, or regulation. See 7103(a), 74, 76, and 77(a). Strikes and certain other forms of concerted activities by federal employees are illegal and constitute unfair labor practices under the Act, 76(b)(7)(A). The Act replaced the management-controlled Federal Labor Relations Council with the FLRA, a three-member independent and bipartisan body within the Executive Branch with responsibility for supervising the collective-bargaining process and administering other aspects of federal labor relations established by Title VII. 7104. The Authority, the role of which in the public sector is analogous *93 to that of the National Labor Relations Board in the private sector, see H. R. Rep. No. 95-1403, p. 41 adjudicates negotiability disputes, unfair labor practice complaints, bargaining unit issues, arbitration exceptions, and conflicts over the conduct of representational elections. See 7105(a)(2) (A)-(I). In addition to its adjudicatory functions, the Authority may engage in formal rulemaking, 7134, and is specifically required to "provide leadership in establishing policies and guidance relating to matters" arising under the Act, 7105(a)(1). The FLRA may seek enforcement of its adjudicatory orders in the United States courts of appeals, 7123(b), and persons, including federal agencies, aggrieved by any final FLRA decision may also seek judicial review in those courts, 7123(a). B Petitioner, the Bureau of Alcohol, Tobacco and Firearms (BATF or Bureau), an agency within the Department of the Treasury, maintained a regional office in Lodi, California. Respondent National Treasury Employees Union (NTEU or Union) was the exclusive representative of BATF employees stationed in the Lodi office. In November 1978, the Bureau notified NTEU that it intended to move the Lodi office to Sacramento and to establish a reduced duty post at a new location in Lodi. The Union informed BATF that it wished to negotiate aspects of the move's impact on employees in the bargaining unit. As its agent for these negotiations, the Union designated Donald Pruett, a BATF employee and NTEU steward who lived in Madera, California, and was stationed in Fresno. Bureau officials agreed to meet with Pruett at the new offices and discuss the planned move. Pruett asked that his participation in the discussions be classified as "official time" so that he could receive his regular salary while attending the meetings. The Bureau denied the request and directed Pruett to take either annual leave or leave without pay for the day of the meeting. On February 23, 1979, Bureau officials met with Pruett at the proposed new Sacramento offices and inspected the physical *94 amenities, including the restrooms, dining facilities, and parking areas. Pruett and the BATF officials then drove to Lodi where they conducted a similar inspection of the new reduced duty post. Finally, the group repaired to the existing Lodi office where they discussed the planned move. After Pruett expressed his general satisfaction with the new facilities, he negotiated with the agency officials about such matters as parking arrangements, employee assignments, and the possibility of excusing employee tardiness for the first week of operations in the Sacramento office. Once the parties reached an agreement on the move, Pruett drove back to his home in Madera. Pruett had spent 1/2 hours traveling to and attending the meetings, and had driven more than 300 miles in his own car. When he renewed his request to have his participation at the meetings classified as official time, the Bureau informed him that it did not reimburse employees for expenses incurred in negotiations and that it granted official time only for quarterly collective-bargaining sessions and not for midterm discussions like those involved here. In June 1979, the Union filed an unfair labor practice charge with the FLRA, claiming that BATF had improperly compelled Pruett to take annual leave for the February 23 sessions. While the charge was pending, the FLRA issued an "Interpretation and Guidance" of general applicability which required federal agencies to pay salaries, travel expenses, and per diem allowances to union representatives engaged in collective bargaining with the agencies.[5] 2 F. L. R. A. 265 The Interpretation relied on 5 U.S. C. 7131(a) *95 ( ed.), which provides that "[a]ny employee representing an exclusive representative in the negotiation of a collective bargaining agreement shall be authorized official time for such purposes" The Authority concluded that an employee's entitlement to official time under this provision extends to "all negotiations between an exclusive representative and an agency, regardless of whether such negotiations pertain to the negotiation or renegotiation of a basic collective bargaining agreement." 2 F. L. R. A., at 268. The Authority further determined that 7131(a) requires agencies to pay a per diem allowance and travel expenses to employees representing their union in such negotiations. Based on the NTEU's pending charge against the Bureau, the General Counsel of the Authority issued a complaint and notice of hearing, alleging that the BATF had committed an unfair labor practice by refusing to grant Pruett official time for the February 23 meetings.[6] During the course of a subsequent hearing on the charge before an Administrative Law Judge, the complaint was amended to add a claim that, in addition to paying Pruett's salary for the day of the meetings, the BATF should have paid his travel expenses and a per diem allowance. Following the hearing, the ALJ determined * that negotiations had in fact taken place between Pruett and BATF officials at the February 23 meetings. Bound to follow the recent FLRA Interpretation and Guidance, the ALJ concluded that the Bureau had committed an unfair labor practice by failing to comply with 7131(a). Accordingly, he ordered the Bureau to pay Pruett his regular salary for the day in question, as well as his travel costs and a per diem allowance. The ALJ also required the BATF to post a notice stating that the agency would do the same for all employee union representatives in future negotiations. The Bureau filed exceptions to the decision with the Authority, which, in September 1980, affirmed the decision of the ALJ, adopting his findings, conclusions, and recommended relief. 4 F. L. R. A. 288 (1980). The Bureau sought review in the United States Court of for the Ninth Circuit, and the Union intervened as a party in that appeal. The Bureau challenged both the FLRA's conclusion that 7131(a) applies to midterm negotiations and its determination that the section requires payment of travel expenses and a per diem allowance. After deciding that the Authority's construction of its enabling Act was entitled to deference if it was "reasoned and supportable," -736, the Court of enforced the Authority's order on both issues. On certiorari to this Court, petitioner does not seek review of the holding with respect to midterm negotiations. Only that aspect of the Court of ' decision regarding travel expenses and per diem allowances is at issue here. II The FLRA order enforced by the Court of in this case was, as noted, premised on the Authority's earlier construction of 7131(a) in its Interpretation and Guidance. Although we have not previously had occasion to consider an interpretation of the Civil Service Reform Act by the FLRA, we have often described the appropriate standard of judicial *97 review in similar contexts.[7] Like the National Labor Relations Board, see, e. g., the FLRA was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act. See 7105; H. R. Rep. No. 95-1403, p. 41 Consequently, the Authority is entitled to considerable deference when it exercises its "special function of applying the general provisions of the Act to the complexities" of federal labor relations. Cf. at See also Ford Motor ; ; On the other hand, the "deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress." American Ship Building (15). Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency's enabling Act, at they must not "rubber-stamp administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." (15). See Chemical & Alkali v. Pittsburgh Plate Glass Co.,[8] Guided by these principles, we turn to a consideration of the FLRA's construction of 7131(a). III Title 5 U.S. C. 7131(a) ( ed.) provides in full: "Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement *99 under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes." According to the House Committee that reported the bill containing 7131, Congress used the term "official time" to mean "paid time." See H. R. Rep. No. 95-1403, p. 58 In light of this clear expression of congressional intent, the parties agree that employee union negotiators are entitled to their usual pay during collective-bargaining sessions that occur when the employee "otherwise would be in a duty status." Both the Authority, 2 F. L. R. A., at 269, and the Court of recognized that there is no corresponding expression, either in the statute or the extensive legislative history, of a congressional intent to pay employee negotiators travel expenses and per diem allowances as well. Despite this congressional silence, respondents advance several reasons why the FLRA's determination that such payments are required is consistent with the policies underlying the Act. Each of these arguments proceeds from the assumption that, by providing employee negotiators with official time for bargaining, Congress rejected the model of federal labor relations that had shaped prior administrative practice. In its place, according to respondents, Congress substituted a new vision of collective bargaining under which employee negotiators, like management representatives, are considered "on the job" while bargaining and are therefore entitled to all customary forms of compensation, including travel expenses and per diem allowances.[9] In order to evaluate this claim, it is necessary briefly to review the rights of *100 employee negotiators to compensation prior to adoption of the Act. A Under the 12 Executive Order establishing the first federal labor relations program, the decision whether to pay union representatives for the time spent in collective bargaining was left within the discretion of their employing agency,[10] apparently on the ground that, without some control by management, the length of such sessions could impose too great a burden on Government business. See Report of the President's Task Force on Employee-Management Relations in the Federal Service, reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, pp. 77, 1203 (hereinafter Leg. Hist.). Under this early scheme, employee negotiators were not entitled to per diem allowances and travel expenses, on the view that they were engaged, not in official business of the Government, but rather in activities "primarily in the interest of the employee organization." (15).[] *101 Executive Order No. 491, which became effective in 1970, cut back on the previous Order by providing that employees engaged in negotiations with their agencies could not receive official time, even at the agencies' discretion. See 3 CFR 861-862, 873-874 (16-1970 Comp.). Again, the prohibition was based on the view that employee representatives work for their union, not for the Government, when negotiating an agreement with their employers. See Leg. Hist., at 67. In 1971, however, at the recommendation of the Federal Labor Relations Council, an amending Executive Order allowed unions to negotiate with agencies to obtain official time for employee representatives, up to a maximum of either 40 hours, or 50% of the total time spent in bargaining. Exec. Order No. 616, 3 CFR 605 (1971-1975 Comp.). The Council made clear that this limited authorization, which was intended "to maintain a reasonable policy with respect to union self-support and an incentive to economical and businesslike bargaining practices," Leg. Hist., at 69, did not permit "[o]vertime, premium pay, or travel expenditures." The Senate version of the bill that became the Civil Service Reform Act would have retained the last Executive Order's restrictions on the authorization of official time. S. Rep. *102 No. 95-9, p. 2 Congress instead adopted the section in its present form, concluding, in the words of one Congressman, that union negotiators "should be allowed official time to carry out their statutory representational activities just as management uses official time to carry out its responsibilities." 124 Cong. Rec. 29188 (remarks of Rep. Clay). See H. R. Conf. Rep. No. 95-1717, p. 1 B Respondents suggest that, by rejecting earlier limitations on official time, Congress repudiated the view that employee negotiators work only for their union and not for the Government. Under the new vision of federal labor relations postulated by respondents, civil servants on both sides of the bargaining table are engaged in official business of the Government and must be compensated equally. Because federal employees representing the views of management receive travel expenses and per diem allowances, federal employees representing the views of labor are entitled to such payments as well. In support of this view, respondents rely on the Act's declaration that public sector collective bargaining is in "the public interest" and "contributes to the effective conduct of public business," 7101(a), as well as on a number of specific provisions in the Act intended to equalize the position of management and labor. For instance, the Act requires agencies to deduct union dues from employees' paychecks and to transfer the funds to the union at no cost, 75(a);[12] in addition, agencies must furnish a variety of date useful to unions in the collective-bargaining process, 74(b)(4). Respondents also contend that Congress employed the term "official time" in 7131 specifically to indicate that employee negotiators are engaged in Government business and therefore entitled to all of their usual forms of compensation. *103 Although Congress certainly could have adopted the model of collective bargaining advanced by respondents, we find no indications in the Act or its legislative history that it intended to do so. The Act's declaration that collective bargaining contributes to efficient government and therefore serves the public interest does not reflect a dramatic departure from the principles of the Executive Order regime under which employee negotiators had not been regarded as working for the Government. To the contrary, the declaration constitutes a strong congressional endorsement of the policy on which the federal labor relations program had been based since its creation in 12. See, e. g., Exec. Order No. 10988, 3 CFR 521 (1959-13 Comp.) ("participation of employees in the formulation and implementation of personnel policies affecting them contributes to effective conduct of public business"); Exec. Order No. 491, 3 CFR 861 (16-1970 Comp.) ("public interest requires modern and progressive work practices to facilitate improved employee performance and efficiency" and efficient government is "benefited by providing employees an opportunity to participate in the formulation and implementation of personnel policies and practices affecting the conditions of their employment"). See also S. Rep. No. 95-9, p. 12 ; 124 Cong. Rec. 29182 (remarks of Rep. Udall) ("What we really do is to codify the 12 action of President Kennedy in setting up a basic framework of collective bargaining for Federal employees").[13] *104 Nor do the specific provisions of the Act aimed at equalizing the positions of management and labor suggest that Congress intended employee representatives to be treated as though they were "on the job" for all purposes. Indeed, the Act's provision of a number of specific subsidies for union activities supports precisely the opposite conclusion. As noted above, Congress expressly considered and ultimately rejected the approach to paid time that had prevailed under the Executive Order regime. See In contrast, there is no reference in the statute or the legislative history to travel expenses and per diem allowances, despite the fact that these kinds of payments had also received administrative attention prior to passage of the Act, see and n. There is, of course, nothing inconsistent in paying the salaries, but not the expenses, of union negotiators. Congress might well have concluded that, although union representatives should not be penalized by a loss in salary while engaged in collective bargaining, they need not be further subsidized with travel and per diem allowances. The provisions of the Act intended to facilitate the collection of union dues, see 75, certainly suggest that Congress contemplated that unions would ordinarily pay their own expenses. Respondents also find their understanding of the role of union representatives supported by Congress' use of the phrase "official time" in 7131(a). For respondents, the use of this term indicates an intent to treat employee negotiators "as doing the government's work for all the usual purposes," and therefore entitled to "all attributes of employment," including travel expenses and a per diem allowance. Brief for Respondent NTEU 24-28. They suggest that, if Congress intended to maintain only the employees' salaries, it would have granted them "leave without loss of pay," a term it has used in other statutes. See, e. g., 5 U.S. C. 6321 (absence of veterans to attend funeral services), 6322(a) (jury or witness duty), and 6323 (military reserve duty) ( ed.). In contrast, Congress uses the terms "official *105 capacity" and "duty status" to indicate that an employee is "on the job" and entitled to all the usual liabilities and privileges of employment. See, e. g., 5751, 6322(b) (employee summoned to testify in "official capacity" entitled to travel expenses).[14] The difficulty with respondents' argument is that Congress did not provide that employees engaged in collective bargaining are acting in their "official capacity," "on the job," or in a "duty status." Instead, the right to a salary conferred by 7131(a) obtains only when "the employee otherwise would be in a duty status" (emphasis supplied). This qualifying language strongly suggests that union negotiators engaged in collective bargaining are not considered in a duty status and thereby entitled to all of their normal forms of compensation. Nor does the phrase "official time," borrowed from prior administrative practice, have the same meaning as "official capacity."[15] As noted above, employees on "official time" under the Executive Order regime were not generally entitled to travel expenses and a per diem allowance. See -101. Moreover, as respondents' own examples demonstrate, Congress does not rely on the mere use of the word "official" when it intends to allow travel expenses and per diems. Even as to those employees acting in an "official capacity," Congress generally provides explicit authorization for such payments. See, e. g., 5702, 5751(b), 6322(b). In the Civil Service Reform Act itself, for instance, Congress expressly provided that members of the Federal Service *106 Impasses Panel are entitled to travel expenses and a per diem allowance, in addition to a salary. See 5703, 79(c)(4).[16] Perhaps recognizing that authority for travel expenses and per diem allowances cannot be found within the four corners of 7131(a), respondents alternatively contend that the Authority's decision is supported by the Travel Expense Act, 5 U.S. C. 5702(a) ( ed.), which provides that a federal employee "traveling on official business away from his designated post of duty is entitled to a per diem allowance." The Travel Expense Act is administered by the Comptroller General who has concluded that agencies may authorize per diem allowances for travel that is "sufficiently in the interest of the United States so as to be regarded as official business." (14). Under the Executive Order regime, the Comptroller General authorized per diem payments to employee negotiators pursuant to this statute upon a certification that the employees' travel served the convenience of the employing agency. See n. Based on its view that employee negotiators are "on the job," the Authority determined that union representatives engaged in collective bargaining are on "official business" and therefore entitled to a per diem allowance under the Travel Expense Act. 2 F. L. R. A., at 269. In support of this reasoning, the Authority notes that 5702(a) has been construed broadly to authorize reimbursement in connection with a variety *107 of "quasi-official" activities, such as employees' attendance at their own personnel hearings and at privately sponsored conferences. See, e. g., Comptroller General of the United States, Travel in the Management and Operation of Federal Programs 1, App. I, p. 5 (Rpt. No. FPCD-77-, Mar. 17, 1977); In each of these instances, however, the travel in question was presumably for the convenience of the agency and therefore clearly constituted "official business" of the Government. As we have explained, neither Congress' declaration that collective bargaining is in the public interest nor its use of the term of art "official time" warrants the conclusion that employee negotiators are on "official business" of the Government.[17] IV In passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions and to make the collective-bargaining process a more effective instrument of the public interest than it had been under the Executive Order regime. See There is no evidence, however, that the Act departed from the basic assumption underlying collective bargaining in both the public *108 and the private sector that the parties "proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest." (10), quoted in General Building Contractors Assn., Nor did the Act confer on the FLRA an unconstrained authority to equalize the economic positions of union and management. See American Ship Building -. We conclude, therefore, that the FLRA's interpretation of 7131(a) constitutes an "unauthorized assumption by [the] agency of [a] major policy decisio[n] properly made by Congress." at The judgment of the Court of is Reversed.

Justice Marshall

majority

United States v. Mendoza-Lopez

https://www.courtlistener.com/opinion/111894/united-states-v-mendoza-lopez/

https://www.courtlistener.com/api/rest/v3/clusters/111894/

1986-105

In this case, we must determine whether an alien who is prosecuted under 8 U.S. C. § 1326 for illegal entry following deportation may assert in that criminal proceeding the invalidity of the underlying deportation order. I Respondents, Jose Mendoza-Lopez and Angel Landeros-Quinones, were arrested at separate locations in Lincoln, Nebraska, on October 23, 1984, by agents of the Immigration and Naturalization Service. On October 30, 1984, they were transported to Denver, Colorado, where a group deportation hearing was held for respondents along with 11 other persons, all of whom were, like respondents, Mexican nationals.[1] After the hearing, respondents were ordered deported and were bused to El Paso, Texas. They were deported from El Paso on November 1, 1984. Each received, at the time of his deportation, a copy of Form I-294, which advised, in both Spanish and English, that a return to the United States without permission following deportation would constitute a felony. On December 12, 1984, both respondents were once again separately arrested in Lincoln, Nebraska. They were subsequently indicted by a grand jury in the District of Nebraska on charges of violating 8 U.S. C. § 1326, which provides: "Any alien who — "(1) has been arrested and deported or excluded and deported, and thereafter "(2) enters, attempts to enter, or is at any time found in the United States . . . *831 "shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both."[2] Respondents moved in the District Court to dismiss their indictments, on the ground that they were denied fundamentally fair deportation hearings. They contended that the Immigration Law Judge inadequately informed them of their right to counsel at the hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.[3] The District Court ruled that respondents could collaterally attack their previous deportation orders. United States v. Landeros-Quinones, CR 85-L-06 (Feb. 28, 1985). It rejected their claims that they were not adequately informed of their right to counsel. It found, however, that respondents had apparently failed to understand the Immigration Judge's explanation of suspension of deportation.[4] The District *832 Court concluded that respondents had not made knowing and intelligent waivers of their rights to apply for suspension of deportation or their rights to appeal, finding it "inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice." App. to Pet. for Cert. 23a. Holding that the "failure to overcome these defendants' lack of understanding about the proceedings, which is apparent from listening to the tape recording, totally undermined the reliability of the proceedings" and that "substantial justice was not done," the District Court dismissed the indictments in both cases. Id., at 26a. The Court of Appeals for the Eighth Circuit affirmed. 781 F.2d 111 (1985). Noting a conflict among the Circuits regarding whether a defendant prosecuted under § 1326 may collaterally attack a deportation order, the court agreed with those Courts of Appeals that had concluded that a material element of the offense prohibited by § 1326 was a "lawful" deportation. Id., at 112. It went on to state that principles of fundamental fairness required a pretrial review of the underlying deportation to examine whether the alien received due process of law. The Court of Appeals affirmed the District Court's conclusion that there was a due process violation in this case, holding that, "[b]ecause the defendants did not fully understand the proceedings, the hearing was fundamentally unfair, and the deportation order was obtained unlawfully. Thus, it cannot stand as a material element forming the basis of the charges against the defendants." Id., at 113.[5] *833 To resolve the conflict among the Circuits,[6] we granted certiorari. 479 U.S. 811 (1986). We affirm. II In United States v. Spector, 343 U.S. 169 (1952), we left open whether the validity of an underlying order of deportation may be challenged in a criminal prosecution in which that prior deportation is an element of the crime.[7] Today, we *834 squarely confront this question in the context of § 1326, which imposes a criminal penalty on any alien who has been deported and subsequently enters, attempts to enter, or is found in, the United States. The issue before us is whether a federal court must always accept as conclusive the fact of the deportation order, even if the deportation proceeding was not conducted in conformity with due process.[8] The first question we must address is whether the statute itself provides for a challenge to the validity of the deportation order in a proceeding under § 1326. Some of the Courts of Appeals considering the question have held that a deportation is an element of the offense defined by § 1326 only if it is "lawful,"[9] and that § 1326 therefore permits collateral *835 challenge to the legality of an underlying deportation order. The language of the statute, however, suggests no such limitation, stating simply that "[a]ny alien who has been arrested and deported or excluded and deported," 8 U.S. C. § 1326 (1), will be guilty of a felony if the alien thereafter enters, attempts to enter, or is at any time found in, the United States, 8 U.S. C. § 1326(2). Nor does the sparse legislative history contain any evidence that Congress intended to permit challenge to the validity of the deportation in the § 1326 proceeding. Before § 1326 was enacted, three statutory sections imposed criminal penalties upon aliens who reentered the country after deportation: 8 U.S. C. § 180(a) (1946 ed.) (repealed 1952), which provided that any alien who had been "deported in pursuance of law" and subsequently entered the United States would be guilty of a felony; 8 U.S. C. § 138 (1946 ed.) (repealed 1952), which provided that an alien deported for prostitution, procuring, or similar immoral activity, and who thereafter reentered the United States, would be guilty of a misdemeanor and subject to a different penalty; and 8 U.S. C. § 137-7(b) (1946 ed., Supp. V) (repealed 1952), which stated that any alien who reentered the country after being deported for subversive activity would be guilty of a felony and subject to yet a third, more severe penalty.[10] See H. R. Rep. No. 1365, 82d Cong., 2d Sess., 219-220 (1952). *836 Congress thus had available to it in at least one of the predecessor sections — § 180(a) — express language that would have permitted collateral challenges to the validity of deportation proceedings in a criminal prosecution for reentry after deportation.[11] It nonetheless failed to include in § 1326 the "in pursuance of law" language of § 180(a). And while there was, at the time of the enactment of § 1326, some case law suggesting that a collateral attack on a deportation proceeding might under certain circumstances be permitted, that principle was not so unequivocally established as to persuade us that Congress must have intended to incorporate that prior law into § 1326.[12] The Immigration and Nationality Act does include sections that limit judicial review of deportation orders. 8 U.S. C. § 1105a provides that, outside of enumerated exceptions, the procedures prescribed by Title 28 of the United States Code for review of federal agency orders "shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." The enumerated exceptions permit an alien to challenge a deportation order, the validity of which has not previously been judicially determined, in a criminal proceeding against the alien for violation of 8 U.S. C. §§ 1252(d) or (e), 8 U.S. C. § 1105a(a)(6), and any alien held in custody *837 pursuant to an order of deportation may obtain judicial review of that order in a habeas corpus proceeding, 8 U.S. C. § 1105a(a)(9). These sections are not directly applicable to this case, since respondents did not ask the District Court to vacate their deportation orders and the court did not do so. It ruled only that the orders could not properly be used as the predicate for a § 1326 conviction. Yet the text of § 1105a indicates that Congress considered and addressed some of the various circumstances in which challenges to deportation orders might arise and did not mention § 1326. See also 8 U.S. C. § 1101(g) ("For the purposes of this chapter any alien ordered deported . . . who has left the United States, shall be considered to have been deported in pursuance of law . . ."); but see Mendez v. INS, 563 F.2d 956, 959 (CA9 1977).[13] The text and background of § 1326 thus indicate no congressional intent to sanction challenges to deportation orders in proceedings under § 1326. III A That Congress did not intend the validity of the deportation order to be contestable in a § 1326 prosecution does not end our inquiry. If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process.[14] Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent *838 imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. See Estep v. United States, 327 U.S. 114, 121-122 (1946); Yakus v. United States, 321 U.S. 414, 444 (1944); cf. McKart v. United States, 395 U.S. 185, 196-197 (1969).[15] This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.[16] The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into *839 the felony of unlawful entry after a deportation. Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.[17] B Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case. The United States did not seek this Court's review of the determination of the courts below that respondents' rights to due process were violated by the failure of the Immigration Judge to explain adequately their right to suspension of deportation or their right to appeal. Pet. for Cert. 7. The United States has asked this Court to assume that respondents' deportation hearing was fundamentally unfair in considering whether collateral attack on the hearing may be *840 permitted. Tr. of Oral Arg. 6-7. We consequently accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents' rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1326. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation. Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding. The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense. C The United States asserts that our decision in Lewis v. United States, 445 U.S. 55 (1980), answered any constitutional objections to the scheme employed in § 1326. In Lewis, the Court held that a state-court conviction, even though it was uncounseled and therefore obtained in violation of the Sixth and Fourteenth Amendment rights of the defendant under Gideon v. Wainwright, 372 U.S. 335 (1963), could be used as a predicate for a subsequent conviction under § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S. C. App. § 1202(a)(1), which forbade any person convicted of a felony from receiving, possessing, or transporting a firearm. We do not consider Lewis to control the issues raised by this case. The question in Lewis was whether Congress could define that "class of persons who should be disabled from dealing in or possessing firearms," 445 U.S., at 67, by reference to prior state felony convictions, even if those convictions had resulted from procedures, such as the denial of *841 counsel, subsequently condemned as unconstitutional.[18] The Court there rejected Lewis' statutory challenge, holding that Congress had manifested no intent to permit collateral attacks upon the prior state convictions in federal criminal proceedings, and further held that this use of uncounseled prior convictions did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In rejecting the notion that the statute permitted, or the Constitution required, this "new form of collateral attack" on prior convictions, the Court pointed to the availability of alternative means to secure judicial review of the conviction: "[I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm." Ibid. It is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis. The fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge's determination unavailable to respondents. What was assumed in Lewis, namely the opportunity to challenge the predicate conviction in a judicial forum, was precisely that which was denied to respondents here. Persons charged with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer. *842 Lewis does not reject that basic principle, and our decision today merely reaffirms it. Because respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them, the deportation proceeding in which these events occurred may not be used to support a criminal conviction, and the dismissal of the indictments against them was therefore proper. The judgment of the Court of Appeals is Affirmed.

In this case, we must determine whether an alien who is prosecuted under 8 U.S. C. 1326 for illegal entry following deportation may assert in that criminal proceeding the invalidity of the underlying deportation order. I Respondents, Jose Mendoza-Lopez and Angel Landeros-Quinones, were arrested at separate locations in Lincoln, Nebraska, on October 23, 1984, by agents of the Immigration and Naturalization Service. On October 30, 1984, they were transported to Denver, Colorado, where a group deportation hearing was held for respondents along with 11 other persons, all of whom were, like respondents, Mexican nationals.[1] After the hearing, respondents were ordered deported and were bused to El Paso, Texas. They were deported from El Paso on November 1, 1984. Each received, at the time of his deportation, a copy of Form I-294, which advised, in both Spanish and English, that a return to the United States without permission following deportation would constitute a felony. On December 12, 1984, both respondents were once again separately arrested in Lincoln, Nebraska. They were subsequently indicted by a grand jury in the District of Nebraska on charges of violating 8 U.S. C. 1326, which provides: "Any alien who — "(1) has been arrested and deported or excluded and deported, and thereafter "(2) enters, attempts to enter, or is at any time found in the United States *831 "shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both."[2] Respondents moved in the District Court to dismiss their indictments, on the ground that they were denied fundamentally fair deportation hearings. They contended that the Immigration Law Judge inadequately informed them of their right to counsel at the hearing, and accepted their unknowing waivers of the right to apply for suspension of deportation.[3] The District Court ruled that respondents could collaterally attack their previous deportation orders. United States v. Landeros-Quinones, CR 85-L-06 It rejected their claims that they were not adequately informed of their right to counsel. It found, however, that respondents had apparently failed to understand the Immigration Judge's explanation of suspension of deportation.[4] The District *832 Court concluded that respondents had not made knowing and intelligent waivers of their rights to apply for suspension of deportation or their rights to appeal, finding it "inconceivable that they would so lightly waive their rights to appeal, and thus to the relief they now claim entitlement, [sic] if they had been fully apprised of the ramifications of such a choice." App. to Pet. for Cert. 23a. Holding that the "failure to overcome these defendants' lack of understanding about the proceedings, which is apparent from listening to the tape recording, totally undermined the reliability of the proceedings" and that "substantial justice was not done," the District Court dismissed the indictments in both cases. at 26a. The Court of Appeals for the Eighth Circuit affirmed. Noting a conflict among the Circuits regarding whether a defendant prosecuted under 1326 may collaterally attack a deportation order, the court agreed with those Courts of Appeals that had concluded that a material element of the offense prohibited by 1326 was a "lawful" deportation. It went on to state that principles of fundamental fairness required a pretrial review of the underlying deportation to examine whether the alien received due process of law. The Court of Appeals affirmed the District Court's conclusion that there was a due process violation in this case, holding that, "[b]ecause the defendants did not fully understand the proceedings, the hearing was fundamentally unfair, and the deportation order was obtained unlawfully. Thus, it cannot stand as a material element forming the basis of the charges against the defendants."[5] *833 To resolve the conflict among the Circuits,[6] we granted certiorari. We affirm. II In United we left open whether the validity of an underlying order of deportation may be challenged in a criminal prosecution in which that prior deportation is an element of the crime.[7] Today, we *834 squarely confront this question in the context of 1326, which imposes a criminal penalty on any alien who has been deported and subsequently enters, attempts to enter, or is found in, the United States. The issue before us is whether a federal court must always accept as conclusive the fact of the deportation order, even if the deportation proceeding was not conducted in conformity with due process.[8] The first question we must address is whether the statute itself provides for a challenge to the validity of the deportation order in a proceeding under 1326. Some of the Courts of Appeals considering the question have held that a deportation is an element of the offense defined by 1326 only if it is "lawful,"[9] and that 1326 therefore permits collateral *835 challenge to the legality of an underlying deportation order. The language of the statute, however, suggests no such limitation, stating simply that "[a]ny alien who has been arrested and deported or excluded and deported," 8 U.S. C. 1326 (1), will be guilty of a felony if the alien thereafter enters, attempts to enter, or is at any time found in, the United States, 8 U.S. C. 1326(2). Nor does the sparse legislative history contain any evidence that Congress intended to permit challenge to the validity of the deportation in the 1326 proceeding. Before 1326 was enacted, three statutory sections imposed criminal penalties upon aliens who reentered the country after deportation: 8 U.S. C. 180(a) (1946 ed.) which provided that any alien who had been "deported in pursuance of law" and subsequently entered the United States would be guilty of a felony; 8 U.S. C. 138 (1946 ed.) which provided that an alien deported for prostitution, procuring, or similar immoral activity, and who thereafter reentered the United States, would be guilty of a misdemeanor and subject to a different penalty; and 8 U.S. C. 137-7(b) (1946 ed., Supp. V) which stated that any alien who reentered the country after being deported for subversive activity would be guilty of a felony and subject to yet a third, more severe penalty.[10] See H. R. Rep. No. 1365, 82d Cong., 2d Sess., 219-220 *836 Congress thus had available to it in at least one of the predecessor sections — 180(a) — express language that would have permitted collateral challenges to the validity of deportation proceedings in a criminal prosecution for reentry after deportation.[11] It nonetheless failed to include in 1326 the "in pursuance of law" language of 180(a). And while there was, at the time of the enactment of 1326, some case law suggesting that a collateral attack on a deportation proceeding might under certain circumstances be permitted, that principle was not so unequivocally established as to persuade us that Congress must have intended to incorporate that prior law into 1326.[12] The Immigration and Nationality Act does include sections that limit judicial review of deportation orders. 8 U.S. C. 1105a provides that, outside of enumerated exceptions, the procedures prescribed by Title 28 of the United States Code for review of federal agency orders "shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." The enumerated exceptions permit an alien to challenge a deportation order, the validity of which has not previously been judicially determined, in a criminal proceeding against the alien for violation of 8 U.S. C. 1252(d) or (e), 8 U.S. C. 1105a(a)(6), and any alien held in custody *837 pursuant to an order of deportation may obtain judicial review of that order in a habeas corpus proceeding, 8 U.S. C. 1105a(a)(9). These sections are not directly applicable to this case, since respondents did not ask the District Court to vacate their deportation orders and the court did not do so. It ruled only that the orders could not properly be used as the predicate for a 1326 conviction. Yet the text of 1105a indicates that Congress considered and addressed some of the various circumstances in which challenges to deportation orders might arise and did not mention 1326. See also 8 U.S. C. 1101(g) ("For the purposes of this chapter any alien ordered deported who has left the United States, shall be considered to have been deported in pursuance of law"); but see[13] The text and background of 1326 thus indicate no congressional intent to sanction challenges to deportation orders in proceedings under 1326. III A That Congress did not intend the validity of the deportation order to be contestable in a 1326 prosecution does not end our inquiry. If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process.[14] Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent *838 imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. See ; ; cf.[15] This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.[16] The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into *839 the felony of unlawful entry after a deportation. Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense.[17] B Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case. The United States did not seek this Court's review of the determination of the courts below that respondents' rights to due process were violated by the failure of the Immigration Judge to explain adequately their right to suspension of deportation or their right to appeal. Pet. for Cert. 7. The United States has asked this Court to assume that respondents' deportation hearing was fundamentally unfair in considering whether collateral attack on the hearing may be *840 permitted. Tr. of Oral Arg. 6-7. We consequently accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents' rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under 1326. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation. Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding. The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense. C The United States asserts that our decision in answered any constitutional objections to the scheme employed in 1326. In Lewis, the Court held that a state-court conviction, even though it was uncounseled and therefore obtained in violation of the Sixth and Fourteenth Amendment rights of the defendant under could be used as a predicate for a subsequent conviction under 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S. C. App. 1202(a)(1), which forbade any person convicted of a felony from receiving, possessing, or transporting a firearm. We do not consider Lewis to control the issues raised by this case. The question in Lewis was whether Congress could define that "class of persons who should be disabled from dealing in or possessing firearms," by reference to prior state felony convictions, even if those convictions had resulted from procedures, such as the denial of *841 counsel, subsequently condemned as unconstitutional.[18] The Court there rejected Lewis' statutory challenge, holding that Congress had manifested no intent to permit collateral attacks upon the prior state convictions in federal criminal proceedings, and further held that this use of uncounseled prior convictions did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In rejecting the notion that the statute permitted, or the Constitution required, this "new form of collateral attack" on prior convictions, the Court pointed to the availability of alternative means to secure judicial review of the conviction: "[I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm." It is precisely the unavailability of effective judicial review of the administrative determination at issue here that sets this case apart from Lewis. The fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge's determination unavailable to respondents. What was assumed in Lewis, namely the opportunity to challenge the predicate conviction in a judicial forum, was precisely that which was denied to respondents here. Persons charged with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer. *842 Lewis does not reject that basic principle, and our decision today merely reaffirms it. Because respondents were deprived of their rights to appeal, and of any basis to appeal since the only relief for which they would have been eligible was not adequately explained to them, the deportation proceeding in which these events occurred may not be used to support a criminal conviction, and the dismissal of the indictments against them was therefore proper. The judgment of the Court of Appeals is Affirmed.

Justice Kennedy

majority

Federal Exp. Corp. v. Holowecki

https://www.courtlistener.com/opinion/145827/federal-exp-corp-v-holowecki/

https://www.courtlistener.com/api/rest/v3/clusters/145827/

2007-021

This case arises under the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. When an employee files "a charge alleging unlawful [age] discrimination" with the Equal Employment Opportunity Commission (EEOC), the charge sets the Act's enforcement mechanisms in motion, commencing a waiting period during which the employee cannot file suit. The phrase, "a charge alleging unlawful discrimination," is used in the statute, § 626(d), and "charge" appears in the agency's implementing regulations; but it has no statutory definition. In deciding what constitutes a charge under the Act the Courts of Appeals have adopted different definitions. As a result, difficulties have arisen in determining when employees *1153 may seek relief under the ADEA in courts of competent jurisdiction. As a cautionary preface, we note that the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990, 104 Stat. 327, as amended, 42 U.S.C. § 12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 586-587, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case. I Petitioner, Federal Express Corporation (FedEx), provides mail pickup and delivery services to customers worldwide. In 1994 and 1995, FedEx initiated two programs, designed, it says, to make its 45,000-strong courier network more productive. The programs, "Best Practice Pays" (BPP) and "Minimum Acceptable Performance Standards" (MAPS), tied the couriers' compensation and continued employment to certain performance benchmarks, for instance the number of stops a courier makes per day. Respondents are 14 current and former FedEx couriers over the age of 40. They filed suit in the United States District Court for the Southern District of New York on April 30, 2002, claiming, inter alia, that BPP and MAPS violate the ADEA. Asserting that their claims were typical of many couriers nationwide, respondents sought to represent a plaintiffs' class of all couriers over the age of 40 who were subject to alleged acts of age discrimination by FedEx. The suit maintains that BPP and MAPS were veiled attempts to force older workers out of the company before they would be entitled to receive retirement benefits. FedEx, it is alleged, used the initiatives as a pretext for harassing and discriminating against older couriers in favor of younger ones. The immediate question before us is the timeliness of the suit filed by one of the plaintiffs below, Patricia Kennedy, referred to here as "respondent." Petitioner moved to dismiss respondent's action, contending respondent had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U.S.C. § 626(d). Respondent countered that she filed a valid charge on December 11, 2001, by submitting EEOC Form 283. The agency labels Form 283 an "Intake Questionnaire." Respondent attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The District Court determined these documents were not a charge and granted the motion to dismiss. No. 02 Civ. 3355(LMM) (SDNY, Oct. 9, 2002), App. to Pet. for Cert. 39a. An appeal followed, and the Court of Appeals for the Second Circuit reversed. See 440 F.3d 558, 570 (2006). We granted certiorari to consider whether respondent's filing was a charge, 551 U.S. ____, 127 S. Ct. 2914, 168 L. Ed. 2d 242 (2007), and we now affirm. II This case presents two distinct questions: What is a charge as the ADEA uses that term? And were the documents respondent filed in December 2001 a charge? *1154 A The relevant statutory provision states: "No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. . . . . . . . . "Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d). The Act does not define charge. While EEOC regulations give some content to the term, they fall short of a comprehensive definition. The agency has statutory authority to issue regulations, see § 628; and when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). The regulations the agency has adopted—so far as they go—are reasonable constructions of the term charge. There is little dispute about this. The issue is the guidance the regulations give. One of the regulations, 29 CFR § 1626.3 (2007), is entitled "Other definitions." It says: "charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act." Section 1626.8(a) identifies five pieces of information a "charge should contain": (1)-(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. The next subsection, § 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of § 1626.6—i.e., if it is "in writing and . . . name[s] the prospective respondent and . . . generally allege[s] the discriminatory act(s)." Even with the aid of the regulations the meaning of charge remains unclear, as is evident from the differing positions of the parties now before us and in the Courts of Appeals. Petitioner contends an Intake Questionnaire cannot be a charge unless the EEOC acts upon it. On the other hand some Courts of Appeals, including the Court of Appeals for the Second Circuit, take a position similar to the Government's in this case, that an Intake Questionnaire can constitute a charge if it expresses the filer's intent to activate the EEOC's enforcement processes. See, e.g., Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (C.A.7 1988). A third view, which seems to accord with respondent's position, is that all completed Intake Questionnaires are charges. See, e.g., Casavantes v. California State Univ., Sacramento, 732 F.2d 1441, 1443 (C.A.9 1984). B In support of her position that the Intake Questionnaire she filed, taken together with the attached six-page affidavit, meets the regulatory definition of a charge, respondent places considerable emphasis on what might be described as the regulations' catchall or savings provision, 29 CFR § 1626.8(b). This seems to *1155 require only a written document with a general allegation of discriminatory conduct by a named employer. Respondent points out that, when read together, §§ 1626.8(b) and 1626.6 say that a "charge is sufficient when the Commission receives. . . a written statement" that "name[s] the [employer] and . . . generally allege[s] the discriminatory act(s)." Respondent views this language as unequivocal and sees no basis for requiring that a charge contain any additional information. The EEOC's view, as expressed in the Government's amicus brief, however, is that the regulations identify certain requirements for a charge but do not provide an exhaustive definition. As such, not all documents that meet the minimal requirements of § 1626.6 are charges. The question, then, becomes how to interpret the scope of the regulations. Just as we defer to an agency's reasonable interpretations of the statute when it issues regulations in the first instance, see Chevron, supra, the agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force. See Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997). Under Auer, we accept the agency's position unless it is "`"plainly erroneous or inconsistent with the regulation."'" Id., at 461, 117 S. Ct. 905 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989)). In accord with this standard we accept the agency's position that the regulations do not identify all necessary components of a charge; and it follows that a document meeting the requirements of § 1626.6 is not a charge in every instance. The language in §§ 1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. True, the structure of the regulations is less than clear. But the relevant provisions are grouped under the title, "Procedures—Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents a charge document must contain. This is the agency's position, and we defer to it under Auer. C This does not resolve the case. While we agree with the Government that the regulations do not state all the elements a charge must contain, the question of what additional elements are required remains. On this point the regulations are silent. The EEOC submits that the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights. Brief for United States as Amicus Curiae 15. The EEOC has adopted this position in the Government's amicus brief and in various internal directives it has issued to its field offices over the years. See 1 EEOC Compliance Manual § 2.2(b), p. 2:0001 (Aug.2002); Memorandum from Elizabeth M. Thornton, Director, Office of Field Programs, EEOC, to All District, Area, and Local Office Directors et al. (Feb. 21, 2002), on line at http://www.eeoc. gov/charge/memo-2-21-02.html (hereinafter Thornton Memo) (all Internet materials as visited Feb. 21, 2008, and available in Clerk of Court's case file); Memorandum from Nicholas M. Inzeo, Director, Office of Field Programs, EEOC, to All District, Field, Area, and Local Office Directors et al. (Aug. 13, 2007), on line at http://www.eeoc.gov/charge/memo-8-13-07.html. The Government asserts that this request-to-act requirement is a reasonable extrapolation of the agency's regulations *1156 and that, as a result, the agency's position is dispositive under Auer. The Government acknowledges the regulations do not, on their face, speak to the filer's intent. To the extent the request-to-act requirement can be derived from the text of the regulations, it must spring from the term charge. But, in this context, the term charge is not a construct of the agency's regulations. It is a term Congress used in the underlying statute that has been incorporated in the regulations by the agency. Thus, insofar as they speak to the filer's intent, the regulations do so by repeating language from the underlying statute. It could be argued, then, that this case can be distinguished from Auer. See Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006) (the "near equivalence of the statute and regulation belies [the case for] Auer deference"); Christensen v. Harris County, 529 U.S. 576, 588, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000) (an agency cannot "under the guise of interpreting a regulation . . . create de facto a new regulation"). It is not necessary to hold that Auer deference applies to the agency's construction of the term charge as it is used in the regulations, however. For even if Auer deference is inapplicable, we would accept the agency's proposed construction of the statutory term, and we turn next to the reasons for this conclusion. D In our view the agency's policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect "`a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" Bragdon v. Abbott, 524 U.S. 624, 642, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944)). As such, they are entitled to a "measure of respect" under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 487, 488, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004); United States v. Mead Corp., 533 U.S. 218, 227-239, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228, 121 S. Ct. 2164; Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417, 113 S. Ct. 2151, 124 L. Ed. 2d 368 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency's implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC's Tampa field office did not treat respondent's filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer. These undoubted deficiencies in the agency's administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC's previous directives. We see no reason to assume the agency's position—that a charge *1157 is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212-213, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). The EEOC, moreover, has drawn our attention to the need to define charge in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws and disseminating information about those laws to the public. Cf. Barnhart v. Walton, 535 U.S. 212, 225, 122 S. Ct. 1265, 152 L. Ed. 2d 330 (2002) (noting that deference is appropriate in "matters of detail related to [an agency's] administration" of a statute). The agency's duty to initiate informal dispute resolution processes upon receipt of a charge is mandatory in the ADEA context. See 29 U.S.C. § 626(d) ("[T]he Commission . . . shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion"); Cf. Lopez v. Davis, 531 U.S. 230, 241, 121 S. Ct. 714, 148 L. Ed. 2d 635 (2001) (noting that Congress' use of the term "`shall'" indicates an intent to "impose discretionless obligations"). Yet, at the same time, Congress intended the agency to serve an "educational" function. See Civil Rights Act of 1964, § 705(i), 78 Stat. 259; id., § 705(g)(3) (noting that the Commission shall have the power to "furnish to persons subject to this title such technical assistance as they may request"). Providing answers to the public's questions is a critical part of the EEOC's mission; and it accounts for a substantial part of the agency's work. Of about 175,000 inquiries the agency receives each year, it dockets around 76,000 of these as charges. Brief for United States as Amicus Curiae 19, n. 10. Even allowing for errors in the classification of charges and noncharges, it is evident that many filings come from individuals who have questions about their rights and simply want information. For efficient operations, and to effect congressional intent, the agency requires some mechanism to separate information requests from enforcement requests. Respondent's proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short in this regard. Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire—which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, "What action was taken against you that you believe to be discrimination?" App. to Pet. for Cert. 43a. If an individual knows that reporting this minimal information to the agency will mandate the agency to notify her employer, she may be discouraged from consulting the agency or wait until her employment situation has become so untenable that conciliation efforts would be futile. The result would be contrary to Congress' expressed desire that the EEOC act as an information provider and try to settle employment disputes through informal means. For these reasons, the definition of charge respondent advocates—i.e., that it need conform only to 29 CFR § 1626.6—is in considerable tension with the structure and purposes of the ADEA. The agency's interpretive position—the request-to-act requirement—provides a reasonable alternative that is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate under Skidmore. We conclude as follows: In addition to the information required *1158 by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. Some Courts of Appeals have referred to a "`manifest intent'" test, under which, in order to be deemed a charge, the filing must demonstrate "an individual's intent to have the agency initiate its investigatory and conciliatory processes." 440 F.3d, at 566 (case below); see also Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1319 (C.A.11 2001); Steffen, 859 F.2d, at 543; Bihler v. Singer Co., 710 F.2d 96, 99 (C.A.3 1983). If this formulation suggests the filer's state of mind is somehow determinative, it misses the point. If, however, it means the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes, that would be in accord with our conclusion. It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (Pro se pleadings are to be "liberally construed"). In the administrative context now before us it appears pro se filings may be the rule, not the exception. The ADEA, like Title VII, sets up a "remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process." EEOC v. Commercial Office Products Co., 486 U.S. 107, 124, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979) (noting the "common purpose" of Title VII and the ADEA). The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft. The agency's proposed test implements these purposes. Reasonable arguments can be made that the agency should adopt a standard giving more guidance to filers, making it clear that the request to act must be stated in quite explicit terms. A rule of that sort might yield more consistent results. This, however, is a matter for the agency to decide in light of its experience and expertise in protecting the rights of those who are covered by the Act. For its decisions in this regard the agency is subject to the oversight of the political branches. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 980, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005) ("Filling these gaps [in ambiguous statutes] involves difficult policy choices that agencies are better equipped to make than courts"). We find no reason in this case to depart from our usual rule: Where ambiguities in statutory analysis and application are presented, the agency may choose among reasonable alternatives. E Asserting its interest as an employer, petitioner urges us to condition the definition of charge, and hence an employee's ability to sue, upon the EEOC's fulfilling its mandatory duty to notify the charged party and initiate a conciliation process. In petitioner's view, because the *1159 Commission must act "[u]pon receiving such a charge," 29 U.S.C. § 626(d), its failure to do so means the filing is not a charge. The agency rejects this view, as do we. As a textual matter, the proposal is too artificial a reading of the statute to accept. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Ibid. ("No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission"); Cf. Edelman v. Lynchburg College, 535 U.S. 106, 112-113, 122 S. Ct. 1145, 152 L. Ed. 2d 188 (2002) (rejecting the argument that a charge is not a charge until the filer satisfies Title VII's oath or affirmation requirement). The filing of a charge, moreover, determines when the Act's time limits and procedural mechanisms commence. It would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 444, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) (Powell, J., concurring in judgment). III Having determined that the agency acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf, the question is whether the filing here meets this test. The agency says it does, and we agree. The agency's determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Respondent's completed intake form contained all of the information outlined in 29 CFR § 1626.8, including: the employee's name, address, and telephone number, as well as those of her employer; an allegation that she and other employees had been the victims of "age discrimination"; the number of employees who worked at the Dunedin, Florida, facility where she was stationed; and a statement indicating she had not sought the assistance of any government agency regarding this matter. See App. 265. Petitioner maintains the filing was still deficient because it contained no request for the agency to act. Were the Intake Questionnaire the only document before us we might agree its handwritten statements do not request action. The design of the form in use in 2001, moreover, does not give rise to the inference that the employee requests action against the employer. Unlike EEOC Form 5, the Intake Questionnaire is not labeled a "Charge of Discrimination," see id., at 275. In fact the wording of the questionnaire suggests the opposite: that the form's purpose is to facilitate "pre-charge filing counseling" and to enable the agency to determine whether it has jurisdiction over "potential charges." Id., at 265. There might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required, but the agency is not required to treat every completed Intake Questionnaire as a charge. In this case, however, the completed questionnaire filed in December 2001 was supplemented with a detailed six-page affidavit. At the end of the last page, respondent asked the agency to "[p]lease force Federal Express to end their age discrimination *1160 plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change." Id., at 273. This is properly construed as a request for the agency to act. Petitioner says that, in context, the statement is ambiguous. It points to respondent's accompanying statement that "I have been given assurances by an Agent of the U.S. Equal Employment Opportunity Commission that this Affidavit will be considered confidential by the United States Government and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding." Id., at 266. Petitioner argues that if respondent intended the affidavit to be kept confidential, she could not have expected the agency to treat it as a charge. This reads too much into the assurance of nondisclosure. Respondent did not request the agency to avoid contacting her employer. She stated only her understanding that the affidavit itself would be kept confidential. Even then, she gave consent for the agency to disclose the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Intake Questionnaire giving consent for the agency to disclose her identity to the employer. Id., at 265. Here the combination of the waiver and respondent's request in the affidavit that the agency "force" the employer to stop discriminating against her were enough to bring the entire filing within the definition of charge we adopt here. Petitioner notes that respondent did file a Form 5 (a formal charge) with the EEOC but only after she filed her complaint in the District Court. This shows, petitioner argues, that respondent did not intend the earlier December 2001 filing to be a charge; otherwise, there would have been no reason for the later filing. What matters, however, is whether the documents filed in December 2001 should be interpreted as a request for the agency to act. Postfiling conduct does not nullify an earlier, proper charge. Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation. IV The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency's determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The employer's interests, in particular, were given short shrift, for it was not notified of respondent's complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy *1161 this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset. This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. See Brief for United States as Amicus Curiae 3, n. 2 (noting that the Intake Questionnaire form respondent filed has been replaced with a reworded form). To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate. The judgment of the Court of Appeals is affirmed. It is so ordered.

This case arises under the Age Discrimination in Employment Act of 1967 (ADEA or Act), as amended, et seq. When an employee files "a charge alleging unlawful [age] discrimination" with the Equal Employment Opportunity Commission (EEOC), the charge sets the Act's enforcement mechanisms in motion, commencing a waiting period during which the employee cannot file suit. The phrase, "a charge alleging unlawful discrimination," is used in the statute, 626(d), and "charge" appears in the agency's implementing regulations; but it has no statutory definition. In deciding what constitutes a charge under the Act the Courts of Appeals have adopted different definitions. As a result, difficulties have arisen in determining when employees *1153 may seek relief under the ADEA in courts of competent jurisdiction. As a cautionary preface, we note that the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. e et seq., and the Americans with Disabilities Act of 10, as amended, 42 U.S.C. 12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case. I Petitioner, Federal Express Corporation (FedEx), provides mail pickup and delivery services to customers worldwide. In 14 and 15, FedEx initiated two programs, designed, it says, to make its 45,000-strong courier network more productive. The programs, "Best Practice Pays" (BPP) and "Minimum Acceptable Performance Standards" (MAPS), tied the couriers' compensation and continued employment to certain performance benchmarks, for instance the number of stops a courier makes per day. Respondents are 14 current and former FedEx couriers over the age of 40. They filed suit in the United States District Court for the Southern District of New York on April 30, claiming, inter alia, that BPP and MAPS violate the ADEA. Asserting that their claims were typical of many couriers nationwide, respondents sought to represent a plaintiffs' class of all couriers over the age of 40 who were subject to alleged acts of age discrimination by FedEx. The suit maintains that BPP and MAPS were veiled attempts to force older workers out of the company before they would be entitled to receive retirement benefits. FedEx, it is alleged, used the initiatives as a pretext for harassing and discriminating against older couriers in favor of younger ones. The immediate question before us is the timeliness of the suit filed by one of the plaintiffs below, Patricia Kennedy, referred to here as "respondent." Petitioner moved to dismiss respondent's action, contending respondent had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U.S.C. 626(d). Respondent countered that she filed a valid charge on December 11, by submitting EEOC Form 283. The agency labels Form 283 an "Intake Questionnaire." Respondent attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The District Court determined these documents were not a charge and granted the motion to dismiss. No. 02 Civ. 3355(LMM) App. to Pet. for Cert. 39a. An appeal followed, and the Court of Appeals for the Second Circuit reversed. See We granted certiorari to consider whether respondent's filing was a charge, 551 U.S. and we now affirm. II This case presents two distinct questions: What is a charge as the ADEA uses that term? And were the documents respondent filed in December a charge? *1154 A The relevant statutory provision states: "No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. "Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. 626(d). The Act does not define charge. While EEOC regulations give some content to the term, they fall short of a comprehensive definition. The agency has statutory authority to issue regulations, see 628; and when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations. See U.S.A. The regulations the agency has adopted—so far as they go—are reasonable constructions of the term charge. There is little dispute about this. The issue is the guidance the regulations give. One of the regulations, 29 CFR 1626.3 is entitled "Other definitions." It says: "charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act." Section 1626.8(a) identifies five pieces of information a "charge should contain": (1)-(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. The next subsection, 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of 1626.6—i.e., if it is "in writing and name[s] the prospective respondent and generally allege[s] the discriminatory act(s)." Even with the aid of the regulations the meaning of charge remains unclear, as is evident from the differing positions of the parties now before us and in the Courts of Appeals. Petitioner contends an Intake Questionnaire cannot be a charge unless the EEOC acts upon it. On the other hand some Courts of Appeals, including the Court of Appeals for the Second Circuit, take a position similar to the Government's in this case, that an Intake Questionnaire can constitute a charge if it expresses the filer's intent to activate the EEOC's enforcement processes. See, e.g., A third view, which seems to accord with respondent's position, is that all completed Intake Questionnaires are charges. See, e.g., B In support of her position that the Intake Questionnaire she filed, taken together with the attached six-page affidavit, meets the regulatory definition of a charge, respondent places considerable emphasis on what might be described as the regulations' catchall or savings provision, 29 CFR 1626.8(b). This seems to *1155 require only a written document with a general allegation of discriminatory conduct by a named employer. Respondent points out that, when read together, 1626.8(b) and 1626.6 say that a "charge is sufficient when the Commission receives. a written statement" that "name[s] the [employer] and generally allege[s] the discriminatory act(s)." Respondent views this language as unequivocal and sees no basis for requiring that a charge contain any additional information. The EEOC's view, as expressed in the Government's amicus brief, however, is that the regulations identify certain requirements for a charge but do not provide an exhaustive definition. As such, not all documents that meet the minimal requirements of 1626.6 are charges. The question, then, becomes how to interpret the scope of the regulations. Just as we defer to an agency's reasonable interpretations of the statute when it issues regulations in the first instance, see the agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force. See Under Auer, we accept the agency's position unless it is "`"plainly erroneous or inconsistent with the regulation."'" ). In accord with this standard we accept the agency's position that the regulations do not identify all necessary components of a charge; and it follows that a document meeting the requirements of 1626.6 is not a charge in every instance. The language in 1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. True, the structure of the regulations is less than clear. But the relevant provisions are grouped under the title, "Procedures—Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents a charge document must contain. This is the agency's position, and we defer to it under Auer. C This does not resolve the case. While we agree with the Government that the regulations do not state all the elements a charge must contain, the question of what additional elements are required remains. On this point the regulations are silent. The EEOC submits that the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights. Brief for United States as Amicus Curiae 15. The EEOC has adopted this position in the Government's amicus brief and in various internal directives it has issued to its field offices over the years. See 1 EEOC Compliance Manual 2.2(b), p. 2:0001 ; randum from Elizabeth M. Thornton, Director, Office of Field Programs, EEOC, to All District, Area, and Local Office Directors et al. on line at http://www.eeoc. gov/charge/memo-2-21-02.html (hereinafter Thornton ) (all Internet materials as visited Feb. 21, 2008, and available in Clerk of Court's case file); randum from Nicholas M. Inzeo, Director, Office of Field Programs, EEOC, to All District, Field, Area, and Local Office Directors et al. on line at http://www.eeoc.gov/charge/memo-8-13-07.html. The Government asserts that this request-to-act requirement is a reasonable extrapolation of the agency's regulations *1156 and that, as a result, the agency's position is dispositive under Auer. The Government acknowledges the regulations do not, on their face, speak to the filer's intent. To the extent the request-to-act requirement can be derived from the text of the regulations, it must spring from the term charge. But, in this context, the term charge is not a construct of the agency's regulations. It is a term Congress used in the underlying statute that has been incorporated in the regulations by the agency. Thus, insofar as they speak to the filer's intent, the regulations do so by repeating language from the underlying statute. It could be argued, then, that this case can be distinguished from Auer. See ; It is not necessary to hold that Auer deference applies to the agency's construction of the term charge as it is used in the regulations, however. For even if Auer deference is inapplicable, we would accept the agency's proposed construction of the statutory term, and we turn next to the reasons for this conclusion. D In our view the agency's policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full deference, they do reflect "`a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" As such, they are entitled to a "measure of respect" under the less deferential Skidmore standard. Alaska Dept. of Environmental ; United Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton True, as the Government concedes, the agency's implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC's Tampa field office did not treat respondent's filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer. These undoubted deficiencies in the agency's administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC's previous directives. We see no reason to assume the agency's position—that a charge *1157 is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. The EEOC, moreover, has drawn our attention to the need to define charge in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws and disseminating information about those laws to the public. Cf. The agency's duty to initiate informal dispute resolution processes upon receipt of a charge is mandatory in the ADEA context. See 29 U.S.C. 626(d) ; Cf. Yet, at the same time, Congress intended the agency to serve an "educational" function. See Civil Rights Act of 1964, 705(i), ; 705(g)(3) (noting that the Commission shall have the power to "furnish to persons subject to this title such technical assistance as they may request"). Providing answers to the public's questions is a critical part of the EEOC's mission; and it accounts for a substantial part of the agency's work. Of about 175,000 inquiries the agency receives each year, it dockets around 76,000 of these as charges. Brief for United States as Amicus Curiae 19, n. 10. Even allowing for errors in the classification of charges and noncharges, it is evident that many filings come from individuals who have questions about their rights and simply want information. For efficient operations, and to effect congressional intent, the agency requires some mechanism to separate information requests from enforcement requests. Respondent's proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short in this regard. Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire—which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, "What action was taken against you that you believe to be discrimination?" App. to Pet. for Cert. 43a. If an individual knows that reporting this minimal information to the agency will mandate the agency to notify her employer, she may be discouraged from consulting the agency or wait until her employment situation has become so untenable that conciliation efforts would be futile. The result would be contrary to Congress' expressed desire that the EEOC act as an information provider and try to settle employment disputes through informal means. For these reasons, the definition of charge respondent advocates—i.e., that it need conform only to 29 CFR 1626.6—is in considerable tension with the structure and purposes of the ADEA. The agency's interpretive position—the request-to-act requirement—provides a reasonable alternative that is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate under Skidmore. We conclude as follows: In addition to the information required *1158 by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. Some Courts of Appeals have referred to a "`manifest intent'" test, under which, in order to be deemed a charge, the filing must demonstrate "an individual's intent to have the agency initiate its investigatory and conciliatory processes." ; see also Wilkerson v. Grinnell ; ; If this formulation suggests the filer's state of mind is somehow determinative, it misses the point. If, however, it means the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes, that would be in accord with our conclusion. It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties. See In the administrative context now before us it appears pro se filings may be the rule, not the exception. The ADEA, like Title VII, sets up a "remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process." ; see also Oscar Mayer & S. Ct. 2066, The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft. The agency's proposed test implements these purposes. Reasonable arguments can be made that the agency should adopt a standard giving more guidance to filers, making it clear that the request to act must be stated in quite explicit terms. A rule of that sort might yield more consistent results. This, however, is a matter for the agency to decide in light of its experience and expertise in protecting the rights of those who are covered by the Act. For its decisions in this regard the agency is subject to the oversight of the political branches. Cf. National Cable & Telecommunications We find no reason in this case to depart from our usual rule: Where ambiguities in statutory analysis and application are presented, the agency may choose among reasonable alternatives. E Asserting its interest as an employer, petitioner urges us to condition the definition of charge, and hence an employee's ability to sue, upon the EEOC's fulfilling its mandatory duty to notify the charged party and initiate a conciliation process. In petitioner's view, because the *1159 Commission must act "[u]pon receiving such a charge," 29 U.S.C. 626(d), its failure to do so means the filing is not a charge. The agency rejects this view, as do we. As a textual matter, the proposal is too artificial a reading of the statute to accept. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. ; Cf. 535 U.S. The filing of a charge, moreover, determines when the Act's time limits and procedural mechanisms commence. It would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. III Having determined that the agency acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf, the question is whether the filing here meets this test. The agency says it does, and we agree. The agency's determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Respondent's completed intake form contained all of the information outlined in 29 CFR 1626.8, including: the employee's name, address, and telephone number, as well as those of her employer; an allegation that she and other employees had been the victims of "age discrimination"; the number of employees who worked at the Dunedin, Florida, facility where she was stationed; and a statement indicating she had not sought the assistance of any government agency regarding this matter. See App. 265. Petitioner maintains the filing was still deficient because it contained no request for the agency to act. Were the Intake Questionnaire the only document before us we might agree its handwritten statements do not request action. The design of the form in use in moreover, does not give rise to the inference that the employee requests action against the employer. Unlike EEOC Form 5, the Intake Questionnaire is not labeled a "Charge of Discrimination," see In fact the wording of the questionnaire suggests the opposite: that the form's purpose is to facilitate "pre-charge filing counseling" and to enable the agency to determine whether it has jurisdiction over "potential charges." There might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required, but the agency is not required to treat every completed Intake Questionnaire as a charge. In this case, however, the completed questionnaire filed in December was supplemented with a detailed six-page affidavit. At the end of the last page, respondent asked the agency to "[p]lease force Federal Express to end their age discrimination *1160 plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change." This is properly construed as a request for the agency to act. Petitioner says that, in context, the statement is ambiguous. It points to respondent's accompanying statement that "I have been given assurances by an Agent of the U.S. Equal Employment Opportunity Commission that this Affidavit will be considered confidential by the United States Government and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding." Petitioner argues that if respondent intended the affidavit to be kept confidential, she could not have expected the agency to treat it as a charge. This reads too much into the assurance of nondisclosure. Respondent did not request the agency to avoid contacting her employer. She stated only her understanding that the affidavit itself would be kept confidential. Even then, she gave consent for the agency to disclose the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Intake Questionnaire giving consent for the agency to disclose her identity to the employer. Here the combination of the waiver and respondent's request in the affidavit that the agency "force" the employer to stop discriminating against her were enough to bring the entire filing within the definition of charge we adopt here. Petitioner notes that respondent did file a Form 5 (a formal charge) with the EEOC but only after she filed her complaint in the District Court. This shows, petitioner argues, that respondent did not intend the earlier December filing to be a charge; otherwise, there would have been no reason for the later filing. What matters, however, is whether the documents filed in December should be interpreted as a request for the agency to act. Postfiling conduct does not nullify an earlier, proper charge. Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation. IV The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency's determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The employer's interests, in particular, were given short shrift, for it was not notified of respondent's complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy *1161 this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset. This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. See Brief for United States as Amicus Curiae 3, n. 2 (noting that the Intake Questionnaire form respondent filed has been replaced with a reworded form). To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Breyer

majority

Reynoldsville Casket Co. v. Hyde

https://www.courtlistener.com/opinion/117933/reynoldsville-casket-co-v-hyde/

https://www.courtlistener.com/api/rest/v3/clusters/117933/

1994-057

In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988), this Court held unconstitutional (as impermissibly burdening interstate commerce) an Ohio "tolling" provision that, in effect, gave Ohio tort plaintiffs unlimited time to sue out-of-state (but not in-state) defendants. Subsequently, in the case before us, the Supreme Court of *751 Ohio held that, despite Bendix, Ohio's tolling law continues to apply to tort claims that accrued before that decision. This holding, in our view, violates the Constitution's Supremacy Clause. We therefore reverse the Ohio Supreme Court's judgment. The accident that led to this case, a collision between a car and a truck, occurred in Ashtabula County, Ohio, on March 5, 1984. More than three years later, on August 11, 1987, Carol Hyde (respondent here) sued the truck's driver, John Blosh, and its owner, Reynoldsville Casket Company (petitioners). All parties concede that, had Blosh and Reynoldsville made their home in Ohio, Ohio law would have given Hyde only two years to bring her lawsuit. See Ohio Rev. Code Ann. § 2305.10 (1991). But, because petitioners were from Pennsylvania, a special provision of Ohio law tolled the running of the statute of limitations, making the lawsuit timely. See § 2305.15(A) (tolling the statute of limitations while a person against whom "a cause of action accrues" is "out of" or "departs from" the State). Ten months after Hyde brought her suit, this Court, in Bendix, supra, held that the tolling provision on which she relied, § 2305.15(A), places an unconstitutional burden upon interstate commerce. Soon thereafter, the Ashtabula County Court of Common Pleas, finding this case indistinguishable from Bendix, held that the tolling provision could not constitutionally be applied to the case, and dismissed the lawsuit as untimely. The intermediate appellate state court affirmed the dismissal. However, the Ohio Supreme Court reinstated the suit. Its syllabus, which under Ohio law sets forth the authoritative basis for its decision, see Ohio Supreme Court Rules for the Reporting of Opinions Rule 1(B) (1994-1995); Akers v. Serv-A-Portion, Inc., 31 Ohio St. 3d 78, 79, n. 1, 508 N.E.2d 964, 965, n. 1 (1987), simply says, "Bendix Autolite Corp. v. Midwesco Enterprises, Inc. . . . may not be retroactively applied to bar claims in state courts which had accrued prior to the announcement of that decision. *752 (Section 16, Article I, Ohio Constitution, applied.)" 68 Ohio St. 3d 240, 240-241, 626 N.E.2d 75 (1994). We granted certiorari to decide whether the Federal Constitution permits Ohio to continue to apply its tolling statute to pre-Bendix torts. And, as we have said, we conclude that it does not. Hyde acknowledges that this Court, in Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993), held that, when (1) the Court decides a case and applies the (new) legal rule of that case to the parties before it, then (2) it and other courts must treat that same (new) legal rule as "retroactive," applying it, for example, to all pending cases, whether or not those cases involve pre decision events. She thereby concedes that, the Ohio Supreme Court's syllabus to the contrary notwithstanding, Bendix applies to her case. And, she says, as "a result of Harper, there is no question that Bendix retroactively invalidated" the tolling provision that makes her suit timely. Brief for Respondent 8. Although one might think that is the end of the matter, Hyde ingeniously argues that it is not. She asks us to look at what the Ohio Supreme Court has done, not through the lens of "retroactivity," but through that of "remedy." States, she says, have a degree of legal leeway in fashioning remedies for constitutional ills. She points to Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), in which this Court applied prospectively only its ruling that a 1-year statute of limitations governed certain tort cases—primarily because that ruling had "effectively overruled a long line of decisions" applying a more generous limitations principle (that of laches), upon which plaintiffs had reasonably relied. Id. , at 107. She concedes that Harper overruled Chevron Oil insofar as the case (selectively) permitted the prospective-only application of a new rule of law. But, she notes the possibility of recharacterizing Chevron Oil as a case in which the Court simply took reliance interests into account in tailoring an appropriate remedy for a violation of federal law. See *753 Harper, supra, at 133-134 (O'Connor, J., dissenting); American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 218-225 (1990) (Stevens, J., dissenting). And she quotes Justice Harlan, who, before Chevron Oil, pointed out that "equitable considerations" such as "`reliance' " might prove relevant to "relief." United States v. Estate of Donnelly, 397 U.S. 286, 296-297 (1970) (concurring opinion). Thus, Hyde asks, why not look at what the Ohio Supreme Court has done in this case as if it were simply an effort to fashion a remedy that takes into consideration her reliance on pre-Bendix law? Here, the remedy would actually consist of providing no remedy for the constitutional violation or, to put the matter more precisely, of continuing to toll the 2-year statute of limitations in pre-Bendix cases, such as hers, as a state law "equitable" device for reasons of reliance and fairness. She claims that use of this device violates no federal constitutional provision (such as the Due Process Clause) and is therefore permissible. One serious problem with Hyde's argument lies in the Ohio Supreme Court's legal description of why, in fact, it refused to dismiss Hyde's case. As we have pointed out, the Ohio Supreme Court's syllabus (the legally authoritative statement of its holding) speaks, not about remedy, but about retroactivity. Regardless, we do not see how, in the circumstances before us, the Ohio Supreme Court could change a legal outcome that federal law, applicable under the Supremacy Clause, would otherwise dictate simply by calling its refusal to apply that federal law an effort to create a remedy. The Ohio Supreme Court's justification for refusing to dismiss Hyde's suit is that she, and others like her, may have reasonably relied upon pre-Bendix law—a reliance of the same kind and degree as that involved in Chevron Oil. But, this type of justification—often present when prior law is overruled—is the very sort that this Court, in Harper, found insufficient to deny retroactive application of a new legal rule (that had been applied in the case that first announced *754 it). If Harper has anything more than symbolic significance, how could virtually identical reliance, without more, prove sufficient to permit a virtually identical denial simply because it is characterized as a denial based on "remedy" rather than "nonretroactivity"? Hyde tries to answer this question by pointing to other cases in which, she claims, this Court has allowed state courts effectively to avoid retroactive application of federal law by denying a particular remedy for violation of that law or by refusing to provide any remedy at all. She argues that these cases are similar enough to her own to permit a "remedial" exception to the retroactive application of Bendix . We have examined the cases to which Hyde looks for support, and conclude that they all involve very different circumstances. First, Hyde points to a statement in the opinion announcing the Court's judgment in James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), that once "a rule is found to apply `backward,' there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one." Id. , at 535 (opinion of Souter, J.); ibid. ("Subject to possible constitutional thresholds,. . . the remedial inquiry is one governed by state law, at least where the case originates in state court"); American Trucking Assns., Inc. v. Smith, 496 U. S., at 178 (opinion of O'Connor, J.) (speaking of the need to "distinguish the question of retroactivity . . . from the distinct remedial question"); id. , at 210 (Stevens, J., dissenting) (distinguishing "between retroactivity as a choice-of-law rule and retroactivity as a remedial principle"). This language, however, read both literally and in context, makes clear that the ordinary application of a new rule of law "backwards," say, to pending cases, may or may not, involve a further matter of remedies. Whether it does so, and, if so, what kind of remedy the state court may fashion, depend—like almost all legal issues— *755 upon the kind of case, matter, and circumstances involved. Not all cases concerning retroactivity and remedies are of the same sort. Second, Hyde points to tax cases in which the Court applied retroactively new rules holding certain state tax laws unconstitutional, but nonetheless permitted the state courts a degree of leeway in designing a remedy, including a remedy that would deny state taxpayers, with pending refund cases, the refund that they sought. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993); Beam, supra. If state courts may at the same time apply new law (invalidating tax statutes) and withhold relief (tax refunds) from tax plaintiffs, asks Hyde, why can they not at the same time apply new law (invalidating tolling statutes) and withhold relief (dismissal) from tort defendants? The answer to this question lies in the special circumstances of the tax cases. The Court has suggested that some of them involve a particular kind of constitutional violation—a kind that the State could cure without repaying back taxes. See McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 40-41 (1990). Where the violation depends, in critical part, upon differential treatment of two similar classes of individuals, then one might cure the problem either by similarly burdening, or by similarly unburdening, both groups. Where the violation stemmed from, say, taxing the retirement funds of one group (retired Federal Government employees) but not those of another (retired state government employees), see Davis v. Michigan Dept. of Treasury, 489 U.S. 803 (1989), then the State might cure the problem either (1) by taxing both (imposing, say, back taxes on the previously advantaged group, to the extent constitutionally permissible), or (2) by taxing neither (and refunding back taxes). Cf. McKesson Corp., supra, at 40-41, and n. 23. And, if the State chooses the first, then the taxpayers need receive no refund. But, that result flows not from some general "remedial" *756 exception to "retroactivity" law, but simply from the fact that the state law that the taxpayer had attacked now satisfies the Constitution. One can imagine a roughly comparable situation in the statute of limitations context. Suppose that Ohio violated the Constitution by treating two similar classes of tort defendants differently, say, by applying a 2-year statute of limitations to the first (in-state defendants) but a 4-year statute to the second (out-of-state defendants). Ohio might have cured this (imaginary) constitutional problem either (1) by applying a 4-year statute to both groups, or (2) by applying a 2-year statute to both groups. Had it chosen the first of these remedies, then Hyde's case could continue because the 4-year statute would no longer violate the Federal Constitution. This imaginary case, however, is not the case at hand, for the Ohio Supreme Court's "remedy" here (allowing Hyde to proceed) does not cure the tolling statute's problem of unconstitutionality. And, her tort claim critically depends upon Ohio tolling law that continues to violate the Commerce Clause. Other tax examples present different, remedial problems. Suppose a State collects taxes under a taxing statute that this Court later holds unconstitutional. Taxpayers then sue for a refund of the unconstitutionally collected taxes. Retroactive application of the Court's holding would seem to entitle the taxpayers to a refund of taxes. But what if a preexisting, separate, independent rule of state law, having nothing to do with retroactivity—a rule containing certain procedural requirements for any refund suit—nonetheless barred the taxpayers' refund suit? See McKesson Corp., supra, at 45; Reich v. Collins, 513 U.S. 106, 111 (1994). Depending upon whether or not this independent rule satisfied other provisions of the Constitution, it could independently bar the taxpayers' refund claim. See McKesson Corp., supra, at 45. *757 This tax scenario simply reflects the legal commonplace that, when two different rules of law each independently bar recovery, then a decision, the retroactive application of which invalidates one rule, will make no difference to the result. The other, constitutionally adequate rule remains in place. Hyde cannot bring her case within the protection of this principle, for the Ohio Supreme Court did not rest its holding upon a pre-existing, separate rule of state law (having nothing to do with retroactivity) that independently permitted her to proceed. Rather, the maintenance of her action critically depends upon the continued application of the Ohio statute's "tolling" principle—a principle that this Court has held unconstitutional. Third, Hyde points to the law of qualified immunity, which, she says, imposes a "remedial" limitation upon the "retroactive" application of a new rule to pending cases. To understand her argument, consider the following scenario: (1) Smith sues a police officer claiming injury because of an unconstitutional arrest; (2) the police officer asserts that the arrest was constitutional; (3) this Court then holds, in a different case, that an identical arrest is not constitutional; (4) the holding of this different case applies retroactively to Smith's case; but (5) the police officer still wins on grounds of qualified immunity because the new rule of law was not "clearly established" at the time of the arrest. See generally Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In one sense, Smith lost for a reason similar to the tax plaintiffs mentioned above, namely, that a previously existing, separate, constitutional legal ground (that of the law not being "clearly established") bars her claim. We acknowledge, however, that this separate legal ground does reflect certain remedial considerations. In particular, it permits government officials to rely upon old law. But, it does so lest threat of liability "`dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching *758 discharge of their duties.' " Id. , at 814 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949)). And, it reflects the concern that "society as a whole," without that immunity, would have to bear "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." 457 U.S., at 814. These very facts—that a set of special federal policy considerations have led to the creation of a well-established, independent rule of law—distinguish the qualified immunity cases from the case before us, where a concern about reliance alone has led the Ohio court to create what amounts to an ad hoc exemption from retroactivity. Finally, Hyde points to the line of cases starting with Teague v. Lane, 489 U.S. 288 (1989), in which, she says, this Court has held that a habeas corpus petitioner cannot obtain a habeas corpus remedy where doing so would require the habeas court to apply retroactively a new rule of criminal law. The Teague doctrine, however, does not involve a special "remedial" limitation on the principle of "retroactivity" as much as it reflects a limitation inherent in the principle itself. New legal principles, even when applied retroactively, do not apply to cases already closed. Cf. United States v. Estate of Donnelly, 397 U. S., at 296 (Harlan, J., concurring) (at some point, "the rights of the parties should be considered frozen" and a "conviction . . . final"). And, much as the qualified immunity doctrine embodies special federal policy concerns related to the imposition of damages liability upon persons holding public office, the Teague doctrine embodies certain special concerns—related to collateral review of state criminal convictions—that affect which cases are closed, for which retroactivity-related purposes, and under what circumstances. No such special finality-related concerns are present here. The upshot is that Hyde shows, through her examples, the unsurprising fact that, as courts apply "retroactively" a new rule of law to pending cases, they will find instances where *759 that new rule, for well-established legal reasons, does not determine the outcome of the case. Thus, a court may find (1) an alternative way of curing the constitutional violation, or (2) a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justifications, or (4) a principle of law, such as that of "finality" present in the Teague context, that limits the principle of retroactivity itself. But, this case involves no such instance; nor does it involve any other special circumstance that might somehow justify the result Hyde seeks. Rather, Hyde offers no more than simple reliance (of the sort at issue in Chevron Oil ) as a basis for creating an exception to Harper `s rule of retroactivity—in other words, she claims that, for no special reason, Harper does not apply. We are back where we started. Hyde's necessary concession, that Harper governs this case, means that she cannot prevail. The judgment of the Supreme Court of Ohio is Reversed.

In Autolite this Court held unconstitutional (as impermissibly burdening interstate commerce) an Ohio "tolling" provision that, in effect, gave Ohio tort plaintiffs unlimited time to sue out-of-state (but not in-state) defendants. Subsequently, in the case before us, the Supreme Court of *751 Ohio held that, despite Ohio's tolling law continues to apply to tort claims that accrued before that decision. This holding, in our view, violates the Constitution's Supremacy Clause. We therefore reverse the Ohio Supreme Court's judgment. The accident that led to this case, a collision between a car and a truck, occurred in Ashtabula County, Ohio, on March 5, 1984. More than three years later, on August 11, Carol Hyde (respondent here) sued the truck's driver, John Blosh, and its owner, Reynoldsville Casket Company (petitioners). All parties concede that, had Blosh and Reynoldsville made their home in Ohio, Ohio law would have given Hyde only two years to bring her lawsuit. See But, because petitioners were from Pennsylvania, a special provision of Ohio law tolled the running of the statute of limitations, making the lawsuit timely. See 2305.15(A) (tolling the statute of limitations while a person against whom "a cause of action accrues" is "out of" or "departs from" the State). Ten months after Hyde brought her suit, this Court, in held that the tolling provision on which she relied, 2305.15(A), places an unconstitutional burden upon interstate commerce. Soon thereafter, the Ashtabula County Court of Common Pleas, finding this case indistinguishable from held that the tolling provision could not constitutionally be applied to the case, and dismissed the lawsuit as untimely. The intermediate appellate state court affirmed the dismissal. However, the Ohio Supreme Court reinstated the suit. Its syllabus, which under Ohio law sets forth the authoritative basis for its decision, see Ohio Supreme Court Rules for the Reporting of Opinions Rule 1(B) (-1995); simply says, " Autolite may not be retroactively applied to bar claims in state courts which had accrued prior to the announcement of that decision. *752 (Section 16, Article I, Ohio Constitution, applied.)" We granted certiorari to decide whether the Federal Constitution permits Ohio to continue to apply its tolling statute to pre- torts. And, as we have said, we conclude that it does not. Hyde acknowledges that this Court, in held that, when (1) the Court decides a case and applies the (new) legal rule of that case to the parties before it, then (2) it and other courts must treat that same (new) legal rule as "retroactive," applying it, for example, to all pending cases, whether or not those cases involve pre decision events. She thereby concedes that, the Ohio Supreme Court's syllabus to the contrary notwithstanding, applies to her case. And, she says, as "a result of there is no question that retroactively invalidated" the tolling provision that makes her suit timely. Brief for Respondent 8. Although one might think that is the end of the matter, Hyde ingeniously argues that it is not. She asks us to look at what the Ohio Supreme Court has done, not through the lens of "retroactivity," but through that of "remedy." States, she says, have a degree of legal leeway in fashioning remedies for constitutional ills. She points to Chevron Oil 404 U.S. (11), in which this Court applied prospectively only its ruling that a 1-year statute of limitations governed certain tort cases—primarily because that ruling had "effectively overruled a long line of decisions" applying a more generous limitations principle (that of laches), upon which plaintiffs had reasonably relied. at 107. She concedes that overruled Chevron Oil insofar as the case (selectively) permitted the prospective-only application of a new rule of law. But, she notes the possibility of recharacterizing Chevron Oil as a case in which the Court simply took reliance interests into account in tailoring an appropriate remedy for a violation of federal law. See *753 ; American Trucking Assns., And she quotes Justice Harlan, who, before Chevron Oil, pointed out that "equitable considerations" such as "`reliance' " might prove relevant to "relief." United 3 U.S. 286, 296-2 (10) Thus, Hyde asks, why not look at what the Ohio Supreme Court has done in this case as if it were simply an effort to fashion a remedy that takes into consideration her reliance on pre- law? Here, the remedy would actually consist of providing no remedy for the constitutional violation or, to put the matter more precisely, of continuing to toll the 2-year statute of limitations in pre- cases, such as hers, as a state law "equitable" device for reasons of reliance and fairness. She claims that use of this device violates no federal constitutional provision (such as the Due Process Clause) and is therefore permissible. One serious problem with Hyde's argument lies in the Ohio Supreme Court's legal description of why, in fact, it refused to dismiss Hyde's case. As we have pointed out, the Ohio Supreme Court's syllabus (the legally authoritative statement of its holding) speaks, not about remedy, but about retroactivity. Regardless, we do not see how, in the circumstances before us, the Ohio Supreme Court could change a legal outcome that federal law, applicable under the Supremacy Clause, would otherwise dictate simply by calling its refusal to apply that federal law an effort to create a remedy. The Ohio Supreme Court's justification for refusing to dismiss Hyde's suit is that she, and others like her, may have reasonably relied upon pre- law—a reliance of the same kind and degree as that involved in Chevron Oil. But, this type of justification—often present when prior law is overruled—is the very sort that this Court, in found insufficient to deny retroactive application of a new legal rule (that had been applied in the case that first announced *754 it). If has anything more than symbolic significance, how could virtually identical reliance, without more, prove sufficient to permit a virtually identical denial simply because it is characterized as a denial based on "remedy" rather than "nonretroactivity"? Hyde tries to answer this question by pointing to other cases in which, she claims, this Court has allowed state courts effectively to avoid retroactive application of federal law by denying a particular remedy for violation of that law or by refusing to provide any remedy at all. She argues that these cases are similar enough to her own to permit a "remedial" exception to the retroactive application of We have examined the cases to which Hyde looks for support, and conclude that they all involve very different circumstances. First, Hyde points to a statement in the opinion announcing the Court's judgment in James B. Distilling that once "a rule is found to apply `backward,' there may then be a further issue of remedies, i. e., whether the party prevailing under a new rule should obtain the same relief that would have been awarded if the rule had been an old one." at 535 (opinion of Souter, J.); ; American Trucking Assns., (speaking of the need to "distinguish the question of retroactivity from the distinct remedial question"); at 210 (distinguishing "between retroactivity as a choice-of-law rule and retroactivity as a remedial principle"). This language, however, read both literally and in context, makes clear that the ordinary application of a new rule of law "backwards," say, to pending cases, may or may not, involve a further matter of remedies. Whether it does so, and, if so, what kind of remedy the state court may fashion, depend—like almost all legal issues— *755 upon the kind of case, matter, and circumstances involved. Not all cases concerning retroactivity and remedies are of the same sort. Second, Hyde points to tax cases in which the Court applied retroactively new rules holding certain state tax laws unconstitutional, but nonetheless permitted the state courts a degree of leeway in designing a remedy, including a remedy that would deny state taxpayers, with pending refund cases, the refund that they sought. See ; If state courts may at the same time apply new law (invalidating tax statutes) and withhold relief (tax refunds) from tax plaintiffs, asks Hyde, why can they not at the same time apply new law (invalidating tolling statutes) and withhold relief (dismissal) from tort defendants? The answer to this question lies in the special circumstances of the tax cases. The Court has suggested that some of them involve a particular kind of constitutional violation—a kind that the State could cure without repaying back taxes. See McKesson Where the violation depends, in critical part, upon differential treatment of two similar classes of individuals, then one might cure the problem either by similarly burdening, or by similarly unburdening, both groups. Where the violation stemmed from, say, taxing the retirement funds of one group (retired Federal Government employees) but not those of another (retired state government employees), see then the State might cure the problem either (1) by taxing both (imposing, say, back taxes on the previously advantaged group, to the extent constitutionally permissible), or (2) by taxing neither (and refunding back taxes). Cf. McKesson at and n. 23. And, if the State chooses the first, then the taxpayers need receive no refund. But, that result flows not from some general "remedial" *756 exception to "retroactivity" law, but simply from the fact that the state law that the taxpayer had attacked now satisfies the Constitution. One can imagine a roughly comparable situation in the statute of limitations context. Suppose that Ohio violated the Constitution by treating two similar classes of tort defendants differently, say, by applying a 2-year statute of limitations to the first (in-state defendants) but a 4-year statute to the second (out-of-state defendants). Ohio might have cured this (imaginary) constitutional problem either (1) by applying a 4-year statute to both groups, or (2) by applying a 2-year statute to both groups. Had it chosen the first of these remedies, then Hyde's case could continue because the 4-year statute would no longer violate the Federal Constitution. This imaginary case, however, is not the case at hand, for the Ohio Supreme Court's "remedy" here (allowing Hyde to proceed) does not cure the tolling statute's problem of unconstitutionality. And, her tort claim critically depends upon Ohio tolling law that continues to violate the Commerce Clause. Other tax examples present different, remedial problems. Suppose a State collects taxes under a taxing statute that this Court later holds unconstitutional. Taxpayers then sue for a refund of the unconstitutionally collected taxes. Retroactive application of the Court's holding would seem to entitle the taxpayers to a refund of taxes. But what if a preexisting, separate, independent rule of state law, having nothing to do with retroactivity—a rule containing certain procedural requirements for any refund suit—nonetheless barred the taxpayers' refund suit? See McKesson ; Depending upon whether or not this independent rule satisfied other provisions of the Constitution, it could independently bar the taxpayers' refund claim. See McKesson *757 This tax scenario simply reflects the legal commonplace that, when two different rules of law each independently bar recovery, then a decision, the retroactive application of which invalidates one rule, will make no difference to the result. The other, constitutionally adequate rule remains in place. Hyde cannot bring her case within the protection of this principle, for the Ohio Supreme Court did not rest its holding upon a pre-existing, separate rule of state law (having nothing to do with retroactivity) that independently permitted her to proceed. Rather, the maintenance of her action critically depends upon the continued application of the Ohio statute's "tolling" principle—a principle that this Court has held unconstitutional. Third, Hyde points to the law of qualified immunity, which, she says, imposes a "remedial" limitation upon the "retroactive" application of a new rule to pending cases. To understand her argument, consider the following scenario: (1) sues a police officer claiming injury because of an unconstitutional arrest; (2) the police officer asserts that the arrest was constitutional; (3) this Court then holds, in a different case, that an identical arrest is not constitutional; (4) the holding of this different case applies retroactively to 's case; but (5) the police officer still wins on grounds of qualified immunity because the new rule of law was not "clearly established" at the time of the arrest. See generally In one sense, lost for a reason similar to the tax plaintiffs mentioned above, namely, that a previously existing, separate, constitutional legal ground (that of the law not being "clearly established") bars her claim. We acknowledge, however, that this separate legal ground does reflect certain remedial considerations. In particular, it permits government officials to rely upon old law. But, it does so lest threat of liability "`dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching *758 discharge of their duties.' " at 814 ). And, it reflects the concern that "society as a whole," without that immunity, would have to bear "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." These very facts—that a set of special federal policy considerations have led to the creation of a well-established, independent rule of law—distinguish the qualified immunity cases from the case before us, where a concern about reliance alone has led the Ohio court to create what amounts to an ad hoc exemption from retroactivity. Finally, Hyde points to the line of cases starting with in which, she says, this Court has held that a habeas corpus petitioner cannot obtain a habeas corpus remedy where doing so would require the habeas court to apply retroactively a new rule of criminal law. The Teague doctrine, however, does not involve a special "remedial" limitation on the principle of "retroactivity" as much as it reflects a limitation inherent in the principle itself. New legal principles, even when applied retroactively, do not apply to cases already closed. Cf. United 3 U. S., at 296 (at some point, "the rights of the parties should be considered frozen" and a "conviction final"). And, much as the qualified immunity doctrine embodies special federal policy concerns related to the imposition of damages liability upon persons holding public office, the Teague doctrine embodies certain special concerns—related to collateral review of state criminal convictions—that affect which cases are closed, for which retroactivity-related purposes, and under what circumstances. No such special finality-related concerns are present here. The upshot is that Hyde shows, through her examples, the unsurprising fact that, as courts apply "retroactively" a new rule of law to pending cases, they will find instances where *759 that new rule, for well-established legal reasons, does not determine the outcome of the case. Thus, a court may find (1) an alternative way of curing the constitutional violation, or (2) a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justifications, or (4) a principle of law, such as that of "finality" present in the Teague context, that limits the principle of retroactivity itself. But, this case involves no such instance; nor does it involve any other special circumstance that might somehow justify the result Hyde seeks. Rather, Hyde offers no more than simple reliance (of the sort at issue in Chevron Oil ) as a basis for creating an exception to `s rule of retroactivity—in other words, she claims that, for no special reason, does not apply. We are back where we started. Hyde's necessary concession, that governs this case, means that she cannot prevail. The judgment of the Supreme Court of Ohio is Reversed.

Justice Thomas

dissenting

Dawson v. Delaware

https://www.courtlistener.com/opinion/112702/dawson-v-delaware/

https://www.courtlistener.com/api/rest/v3/clusters/112702/

1991-041

To rebut mitigating character evidence introduced by petitioner Dawson at his capital sentencing hearing, the State of Delaware proved that Dawson belonged to the Aryan Brotherhood *170 prison gang. The Court holds that the gang membership evidence "ha[d] no relevance to the issues being decided in the proceeding" and that admission of the evidence violated the First Amendment. Ante, at 160. I respectfully dissent. I Dawson's membership in the Aryan Brotherhood prison gang had relevance at sentencing. Under Delaware law, after a jury finds a statutory aggravating factor, it may consider "all relevant evidence in aggravation or mitigation" relating to either the crime or the "character and propensities" of the defendant. Del. Code Ann., Tit. 11, § 4209(d)(1) (1987). Under this provision, Dawson's character became an issue in determining whether he should receive the death penalty. To prove his good character, as the Court observes, Dawson introduced evidence that he had acted kindly toward his family and that he had earned good time credits while in prison. Ante, at 162. Dawson also introduced evidence of his membership and participation in various respectable organizations, including the Green Tree Program (described only as a "drug and alcohol program"), Alcoholics Anonymous (not described at all), and certain therapy and counseling groups (also not described at all). App. 79. Dawson did not call any expert witnesses to clarify the nature of these organizations or their activities. The State attempted to rebut Dawson's mitigating character evidence in part by showing that Dawson also belonged to a prison gang called the Aryan Brotherhood. A stipulation read to the jury explained: "The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." Id., at 132. *171 I do not consider the evidence of Dawson's gang membership irrelevant to his character. A The Court asserts that the gang membership evidence had no relevance because it did nothing more than indicate Dawson's "abstract" racist "beliefs." Ante, at 167. The Court suggests that Dawson's membership in a prison gang would be relevant if the gang had endorsed or committed "unlawful or violent acts" such as drug use, escape, or the murder of other inmates. Ante, at 165, 166. Yet, because the State failed to prove the Aryan Brotherhood's activities, the Court reasons, the jury could do no more than infer that Dawson shared the gang's racist beliefs. Ibid. I disagree. In my judgment, a jury reasonably could conclude from Dawson's membership in a prison gang that he had engaged in some sort of forbidden activities while in prison. The evidence also tended to establish future dangerousness and to rebut Dawson's attempt to show that he was kind to others. Jurors do not leave their knowledge of the world behind when they enter a courtroom and they do not need to have the obvious spelled out in painstaking detail. Just as defense counsel may assume when introducing mitigating evidence that a jury understands the nature of a church choir, a softball team, or the Boy Scouts, so too may a prosecutor assume when rebutting this evidence that a jury knows the nature of a prison gang. The concept of a prison gang is not so mysterious that it requires an encyclopedic definition or a greater explanation than any of the other organizations to which Dawson belonged, such as Alcoholics Anonymous or the Green Tree Program. Cf. Jones v. Hamelman, 869 F.2d 1023, 1028 (CA7 1989) (testimony of a purported expert unnecessary to explain a prison gang once the record established its existence); United States Dept. of Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 10 (1985) (discussing the "extensive" media coverage of prison gangs). *172 In stating that Dawson belonged to a prison gang, the stipulation implied much more than that he shared the gang's abstract racist creed; it indicated that Dawson had engaged in prison gang activities, and that he had the character of a person who engages in these activities. "One of the distinguishing characteristics of the prison gang is the virtual absence of any non-criminal, nondeviant activities. Gang members engage in some institutional pastimes, weight lifting being one of the more notable, but in general their activities are criminal or deviant in nature. The gang member is completely immersed in being a career prison gangster, leaving little time and less inclination for other than asocial behavior." U. S. Dept. of Justice, supra, at x-xi. Denying that Dawson's gang membership told the jury anything about his activities, tendencies, and traits—his "character"—ignores reality. What Judge Easterbrook remarked when others attempted to distinguish gang membership from gang activities, someone reading the Court's opinion might say today: "Who do they think they are fooling? What elements of `membership'—as opposed to `activity'—take place [in the prison]? What are prison gangs for, except to engage in forbidden `activity'? Surely [they] do not believe that prison gangs meet every month to discuss The Critique of Pure Reason and debate how Stanley Tigerman's buildings differ from those of the Bauhaus school. Gangs affiliate for mutual support, but not the kind contemplated by the National Labor Relations Act." David K. v. Lane, 839 F.2d 1265, 1278 (CA7 1988) (concurring opinion). In my view, the stipulation was relevant to Dawson's character because it explained that the Aryan Brotherhood was a prison gang and that Dawson was a member. That evidence, I submit, supports an inference that while in prison, *173 Dawson engaged in the kind of unlawful activity mentioned by the Court.[1] The description of the Aryan Brotherhood as a "racist" prison gang conveyed additional information about Dawson's character. In Barclay v. Florida, 463 U.S. 939 (1983), the plurality found it relevant that a black gang conspired not merely to commit crimes, but to commit them against white persons out of racial hatred. See id., at 949. Even if Dawson's white racist prison gang does not advocate "the murder of fellow inmates," ante, at 165, a jury reasonably could infer that its members in one way or another act upon their racial prejudice. The stipulation itself makes clear that the Aryan Brotherhood does not exist merely to facilitate formulation of abstract racist thoughts, but to "respon[d]" to gangs of racial minorities. The evidence thus tends to establish that Dawson has not been "a well-behaved and well-adjusted prisoner," Skipper v. South Carolina, 476 U.S. 1, 4 (1986), which *174 itself is an indication of future dangerousness, see Franklin v. Lynaugh, 487 U.S. 164, 178 (1988) (plurality opinion); id., at 186 (O'Connor, J., concurring in judgment). The stipulation also tends to rebut Dawson's evidence of good character. In capital cases, we have held that the sentence imposed should reflect a "`reasoned moral response' " not only to the crime, but also to the "`background' " and "`character' " of the defendant himself. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring). In determining Dawson's "personal culpability," Penry, supra, at 327, the jury surely would want to know about the various activities, traits, and tendencies that distinguish him as a "uniquely individual human bein[g]," Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Dawson introduced mitigating character evidence that he had acted kindly towards his family. The stipulation tended to undercut this showing by suggesting that Dawson's kindness did not extend to members of other racial groups. Although we do not sit in judgment of the morality of particular creeds, we cannot bend traditional concepts of relevance to exempt the antisocial. B The Court's opinion suggests that the Constitution now imposes a double standard for determining relevance: a standard easy for defendants to satisfy, but difficult for prosecutors. Under Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), a capital defendant has a right to introduce all relevant mitigating evidence. Capital defendants, as a result, regularly introduce character evidence that allows juries to consider their abstract beliefs and associational rights. Dawson, for example, introduced evidence that he associated with Alcoholics Anonymous and other groups. Other defendants have introduced comparable evidence regarding their religious practice and fraternal organizations. See, e. g., Jordan *175 v. State, 518 So. 2d 1186, 1188 (Miss. 1987) (membership in a church); Sivak v. State, 112 Idaho 197, 236, 731 P.2d 192, 231 (1986) (same); Deputy v. State, 500 A.2d 581, 598 (Del. 1985) (religious rebirth); People v. Belmontes, 45 Cal. 3d 744, 797, 755 P.2d 310, 340 (1988) (same); Evans v. McCotter, 790 F.2d 1232, 1242, and n. 10 (CA5 1986) (conversion to Christianity); State v.Beuke, 38 Ohio St. 3d 29, 43, 526 N.E.2d 274, 289 (1988) (former membership in the Cub Scouts). I see no way to hold that this evidence has relevance, but that Dawson's gang membership does not. A double standard for determining relevance may distort the picture presented to the jury. In this case, Dawson himself chose to introduce evidence of certain good character traits. Unless the State had responded with evidence of other, bad traits, the jury could not possibly have made a fair and balanced determination. Membership in Alcoholics Anonymous might suggest a good character, but membership in the Aryan Brotherhood just as surely suggests a bad one. The jury could not have assessed Dawson's overall character without both. Just last Term, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court condemned a similar distortion. Overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), we held that the Eighth Amendment does not generally prohibit the introduction of victim impact evidence. See Payne, supra, at 827. We reasoned that allowing the jury to consider the defendant, but not the victim, would create an unbalanced picture. Quoting a dissenting opinion in Booth, we stated: "`[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' " Payne, supra, at 825 (quoting Booth, 482 U. S., at 517 (White, J., dissenting)); see also 482 U.S., at 520 *176 (Scalia, J., dissenting) ("Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime .. . . Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court"). Whatever distortion was produced in requiring an exclusive focus on the defendant's character, at least nothing in Booth prevented the jury—as does today's decision—from fairly and fully assessing that character. II The Court acknowledges that Delaware could have avoided any First Amendment problem simply by presenting evidence that proved something more than Dawson's abstract beliefs. Ante, at 167. For the reasons that I have stated, I believe that Delaware has made such a showing. I therefore see no First Amendment violation under the Court's analysis. The Court, however, goes on to make several further assertions about the First Amendment that I find troubling and unnecessary in this case. A Both Dawson and the State, as noted above, had a right to develop the issue of "character" at the sentencing proceeding. See Del. Code Ann., Tit. 11, § 4209(d)(1) (1987); Eddings, supra, at 113-114. In applying the First Amendment, however, the Court declines to decide whether abstract beliefs may constitute a portion of character. "Whatever label is given to the evidence," the Court asserts, "we conclude that Dawson's First Amendment rights were violated . . . in this case . . . ." Ante, at 167. As a consequence, to the extent that abstract beliefs make up part of a person's character, the decision today limits the aspects of character that sentencing authorities may consider. *177 We long have held that the Constitution permits courts and juries to consider character evidence in sentencing proceedings. See Williams v. New York, 337 U.S. 241, 247 (1949). Until today, we have never hinted that the First Amendment limits the aspects of a defendant's character that they may consider. To the contrary, we have emphasized that the sentencing authority "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). In Williams, for example, we upheld a New York law that encouraged the sentencing judge to consider evidence about the defendant's "past life, health, habits, conduct, and mental and moral propensities," 337 U.S., at 245, a phrase easily broad enough to encompass a substantial amount of First Amendment activity. Writing for the Court, Justice Black specifically identified religion and interests as sentencing considerations that may "give the sentencing judge a composite picture of the defendant." Id., at 250, n. 15. More recently, in Franklin v. Lynaugh, all five Members of the Court who addressed the issue agreed that religious activity may bear upon a defendant's character. See 487 U.S., at 186 (O'Connor, J., concurring in judgment) ("Evidence of . . . religious devotion might demonstrate positive character traits"); id., at 190 (Stevens, J., dissenting) ("Evidence of . . . regular church attendance" is relevant to character).[2] Although the opinions in Franklin endorsed *178 consideration of religious activity as a mitigating factor, the endorsement necessarily disfavors abstention from religious activity, which the First Amendment also protects. The Court nowhere explains why courts and juries may consider some First Amendment protected activities when assessing character, but they cannot consider others. Today's decision, moreover, does not define the boundaries of permissible inquiry into character. If the Court means that no First Amendment protected activity "ca[n] be viewed as relevant `bad' character evidence in its own right," ante, at 168, then today's decision represents a dramatic shift in our sentencing jurisprudence. B Once the Court concludes that the gang membership evidence "has no relevance to the issues being decided in the [sentencing] proceeding," ante, at 160, I also have difficulty seeing what the First Amendment adds to the analysis. If the Court considers the evidence irrelevant, the problem is not that Delaware law bases the sentencing decision on impermissible issues, but rather that Dawson may not have received a fair trial on the permissible issues in the proceeding. The Due Process Clause, not the First Amendment, traditionally has regulated questions about the improper admission of evidence. As we stated in Chambers v. Florida, 309 U.S. 227 (1940), the requirement of due process always has protected "the weak, or . . . helpless political, religious, or racial minorities and those who differed" by ensuring that "no man's life, liberty or property be forfeited as criminal punishment for violation of [the] law until there ha[s] been a charge fairly made *179 and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power." Id., at 236-237. We have made clear, in particular, that when a state court admits evidence that is "so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne v. Tennessee, 501 U. S., at 825; see Darden v. Wainwright, 477 U.S. 168, 179-183 (1986). Our decision in Schware v. Board of Bar Examiners of N. M., 353 U.S. 232 (1957), which the Court incorrectly cites, illustrates the point. In Schware, the New Mexico Supreme Court denied an applicant admission to the bar on grounds that he lacked good moral character. Evidence showed that the applicant had belonged to the Communist Party 15 years earlier. The Court erroneously states that Schware held that admitting proof of the applicant's membership in the Communist Party violated the First Amendment. Ante, at 168. Schware, in fact, did not decide that admitting the Communist Party evidence abridged any right of free political association. See 353 U.S., at 243, n. 13. It held, instead, that the state court erred in admitting the Communist Party evidence because it had no relevance to the applicant's moral character after so many years. See id. , at 246. Due process, the Court concluded, prohibited the state court to find the applicant morally unfit to practice law without any relevant evidence. See id. , at 247. Applying familiar evidentiary standards in Dawson's case, the trial judge recognized that the "real issue" in admitting the gang membership evidence was whether its "probative value is outweighed by the danger of unfair prejudice." App. 52. The Delaware Supreme Court, likewise, examined the record to determine whether the gang membership evidence "improperly appeal[ed] to the juror's passions and prejudices concerning race, religion, or political affiliation." 581 A.2d 1078, 1103 (1990). The standards employed by these courts went further than the fundamental unfairness *180 standard stated in Payne and therefore satisfied the requirements of due process. Dawson has presented no convincing argument, based on the record as a whole, that the courts misapplied these standards to the facts of his case. For these reasons, I would affirm.

To rebut mitigating character evidence introduced by petitioner Dawson at his capital sentencing hearing, the State of Delaware proved that Dawson belonged to the Aryan Brotherhood *170 prison gang. The Court holds that the gang membership evidence "ha[d] no relevance to the issues being decided in the proceeding" and that admission of the evidence violated the First Amendment. Ante, at 160. I respectfully dissent. I Dawson's membership in the Aryan Brotherhood prison gang had relevance at sentencing. Under Delaware law, after a jury finds a statutory aggravating factor, it may consider "all relevant evidence in aggravation or mitigation" relating to either the crime or the "character and propensities" of the defendant. Del. Code Ann., Tit. 11, 209(d)(1) Under this provision, Dawson's character became an issue in determining whether he should receive the death penalty. To prove his good character, as the Court observes, Dawson introduced evidence that he had acted kindly toward his family and that he had earned good time credits while in prison. Ante, at 162. Dawson introduced evidence of his membership and participation in various respectable organizations, including the Green Tree Program (described only as a "drug and alcohol program"), Alcoholics Anonymous (not described at all), and certain therapy and counseling groups ( not described at all). App. 79. Dawson did not call any expert witnesses to clarify the nature of these organizations or their activities. The State attempted to rebut Dawson's mitigating character evidence in part by showing that Dawson belonged to a prison gang called the Aryan Brotherhood. A stipulation read to the jury explained: "The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." *171 I do not consider the evidence of Dawson's gang membership irrelevant to his character. A The Court asserts that the gang membership evidence had no relevance because it did nothing more than indicate Dawson's "abstract" racist "beliefs." Ante, at 167. The Court suggests that Dawson's membership in a prison gang would be relevant if the gang had endorsed or committed "unlawful or violent acts" such as drug use, escape, or the murder of other inmates. Ante, at 165, 166. Yet, because the State failed to prove the Aryan Brotherhood's activities, the Court reasons, the jury could do no more than infer that Dawson shared the gang's racist beliefs. I disagree. In my judgment, a jury reasonably could conclude from Dawson's membership in a prison gang that he had engaged in some sort of forbidden activities while in prison. The evidence tended to establish future dangerousness and to rebut Dawson's attempt to show that he was kind to others. Jurors do not leave their knowledge of the world behind when they enter a courtroom and they do not need to have the obvious spelled out in painstaking detail. Just as defense counsel may assume when introducing mitigating evidence that a jury understands the nature of a church choir, a softball team, or the Boy Scouts, so too may a prosecutor assume when rebutting this evidence that a jury knows the nature of a prison gang. The concept of a prison gang is not so mysterious that it requires an encyclopedic definition or a greater explanation than any of the other organizations to which Dawson belonged, such as Alcoholics Anonymous or the Green Tree Program. Cf. ; United States Dept. of Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 10 (discussing the "extensive" media coverage of prison gangs). *172 In stating that Dawson belonged to a prison gang, the stipulation implied much more than that he shared the gang's abstract racist creed; it indicated that Dawson had engaged in prison gang activities, and that he had the character of a person who engages in these activities. "One of the distinguishing characteristics of the prison gang is the virtual absence of any non-criminal, nondeviant activities. Gang members engage in some institutional pastimes, weight lifting being one of the more notable, but in general their activities are criminal or deviant in nature. The gang member is completely immersed in being a career prison gangster, leaving little time and less inclination for other than asocial behavior." U. S. Dept. of Justice, at x-xi. Denying that Dawson's gang membership told the jury anything about his activities, tendencies, and traits—his "character"—ignores reality. What Judge Easterbrook remarked when others attempted to distinguish gang membership from gang activities, someone reading the Court's opinion might say today: "Who do they think they are fooling? What elements of `membership'—as opposed to `activity'—take place [in the prison]? What are prison gangs for, except to engage in forbidden `activity'? Surely [they] do not believe that prison gangs meet every month to discuss The Critique of Pure Reason and debate how Stanley Tigerman's buildings differ from those of the Bauhaus school. Gangs affiliate for mutual support, but not the kind contemplated by the National Labor Relations Act." David In my view, the stipulation was relevant to Dawson's character because it explained that the Aryan Brotherhood was a prison gang and that Dawson was a member. That evidence, I submit, supports an inference that while in prison, *173 Dawson engaged in the kind of unlawful activity mentioned by the Court.[1] The description of the Aryan Brotherhood as a "racist" prison gang conveyed additional information about Dawson's character. In the plurality found it relevant that a black gang conspired not merely to commit crimes, but to commit them against white persons out of racial hatred. See Even if Dawson's white racist prison gang does not advocate "the murder of fellow inmates," ante, at 165, a jury reasonably could infer that its members in one way or another act upon their racial prejudice. The stipulation itself makes clear that the Aryan Brotherhood does not exist merely to facilitate formulation of abstract racist thoughts, but to "respon[d]" to gangs of racial minorities. The evidence thus tends to establish that Dawson has not been "a well-behaved and well-adjusted prisoner," which *17 itself is an indication of future dangerousness, see 87 U.S. 16, ; The stipulation tends to rebut Dawson's evidence of good character. In capital cases, we have held that the sentence imposed should reflect a "`reasoned moral response' " not only to the crime, but to the "`background' " and "`character' " of the defendant himself. See 92 U.S. 302, In determining Dawson's "personal culpability," the jury surely would want to know about the various activities, traits, and tendencies that distinguish him as a "uniquely individual human bein[g]," 28 U.S. 280, 30 Dawson introduced mitigating character evidence that he had acted kindly towards his family. The stipulation tended to undercut this showing by suggesting that Dawson's kindness did not extend to members of other racial groups. Although we do not sit in judgment of the morality of particular creeds, we cannot bend traditional concepts of relevance to exempt the antisocial. B The Court's opinion suggests that the Constitution now imposes a double standard for determining relevance: a standard easy for defendants to satisfy, but difficult for prosecutors. Under 55 U.S. 10 and 38 U.S. 586 a capital defendant has a right to introduce all relevant mitigating evidence. Capital defendants, as a result, regularly introduce character evidence that allows juries to consider their abstract beliefs and associational rights. Dawson, for example, introduced evidence that he associated with Alcoholics Anonymous and other groups. Other defendants have introduced comparable evidence regarding their religious practice and fraternal organizations. See, e. g., Jordan ; ; ; 5 Cal. 3d 7, 30 ; 122, ; State v.Beuke, 3, 526 N.E.2d 27, I see no way to hold that this evidence has relevance, but that Dawson's gang membership does not. A double standard for determining relevance may distort the picture presented to the jury. In this case, Dawson himself chose to introduce evidence of certain good character traits. Unless the State had responded with evidence of other, bad traits, the jury could not possibly have made a fair and balanced determination. Membership in Alcoholics Anonymous might suggest a good character, but membership in the Aryan Brotherhood just as surely suggests a bad one. The jury could not have assessed Dawson's overall character without both. Just last Term, in the Court condemned a similar distortion. Overruling 82 U.S. 96 and South 90 U.S. 805 we held that the Eighth Amendment does not generally prohibit the introduction of victim impact evidence. See We reasoned that allowing the jury to consider the defendant, but not the victim, would create an unbalanced picture. Quoting a dissenting opinion in we stated: "`[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' " (quoting 82 U. S., at 517 ); see 82 U.S., at 520 *176 (Scalia, J., dissenting) ("Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court"). Whatever distortion was produced in requiring an exclusive focus on the defendant's character, at least nothing in prevented the jury—as does today's decision—from fairly and fully assessing that character. II The Court acknowledges that Delaware could have avoided any First Amendment problem simply by presenting evidence that proved something more than Dawson's abstract beliefs. Ante, at 167. For the reasons that I have stated, I believe that Delaware has made such a showing. I therefore see no First Amendment violation under the Court's analysis. The Court, however, goes on to make several further assertions about the First Amendment that I find troubling and unnecessary in this case. A Both Dawson and the State, as noted above, had a right to develop the issue of "character" at the sentencing proceeding. See Del. Code Ann., Tit. 11, 209(d)(1) ; at 113-11. In applying the First Amendment, however, the Court declines to decide whether abstract beliefs may constitute a portion of character. "Whatever label is given to the evidence," the Court asserts, "we conclude that Dawson's First Amendment rights were violated in this case" Ante, at 167. As a consequence, to the extent that abstract beliefs make up part of a person's character, the decision today limits the aspects of character that sentencing authorities may consider. *177 We long have held that the Constitution permits courts and juries to consider character evidence in sentencing proceedings. See 337 U.S. 21, 27 (199). Until today, we have never hinted that the First Amendment limits the aspects of a defendant's character that they may consider. To the contrary, we have emphasized that the sentencing authority "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United 0 U.S. 3, 6 In Williams, for example, we upheld a New York law that encouraged the sentencing judge to consider evidence about the defendant's "past life, health, habits, conduct, and mental and moral propensities," 337 U.S., at 25, a phrase easily broad enough to encompass a substantial amount of First Amendment activity. Writing for the Court, Justice Black specifically identified religion and interests as sentencing considerations that may "give the sentencing judge a composite picture of the defendant." More recently, in all five Members of the Court who addressed the issue agreed that religious activity may bear upon a defendant's character. See 87 U.S., ("Evidence of religious devotion might demonstrate positive character traits"); ("Evidence of regular church attendance" is relevant to character).[2] Although the opinions in Franklin endorsed * consideration of religious activity as a mitigating factor, the endorsement necessarily disfavors abstention from religious activity, which the First Amendment protects. The Court nowhere explains why courts and juries may consider some First Amendment protected activities when assessing character, but they cannot consider others. Today's decision, moreover, does not define the boundaries of permissible inquiry into character. If the Court means that no First Amendment protected activity "ca[n] be viewed as relevant `bad' character evidence in its own right," ante, at 168, then today's decision represents a dramatic shift in our sentencing jurisprudence. B Once the Court concludes that the gang membership evidence "has no relevance to the issues being decided in the [sentencing] proceeding," ante, at 160, I have difficulty seeing what the First Amendment adds to the analysis. If the Court considers the evidence irrelevant, the problem is not that Delaware law bases the sentencing decision on impermissible issues, but rather that Dawson may not have received a fair trial on the permissible issues in the proceeding. The Due Process Clause, not the First Amendment, traditionally has regulated questions about the improper admission of evidence. As we stated in (190), the requirement of due process always has protected "the weak, or helpless political, religious, or racial minorities and those who differed" by ensuring that "no man's life, liberty or property be forfeited as criminal punishment for violation of [the] law until there ha[s] been a charge fairly made *179 and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power." at -237. We have made clear, in particular, that when a state court admits evidence that is "so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." 501 U. S., ; see 77 U.S. 168, Our decision in which the Court incorrectly cites, illustrates the point. In Schware, the New Mexico Supreme Court denied an applicant admission to the bar on grounds that he lacked good moral character. Evidence showed that the applicant had belonged to the Communist Party 15 years earlier. The Court erroneously states that Schware held that admitting proof of the applicant's membership in the Communist Party violated the First Amendment. Ante, at 168. Schware, in fact, did not decide that admitting the Communist Party evidence abridged any right of free political association. See 353 U.S., at 23, n. 13. It held, instead, that the state court erred in admitting the Communist Party evidence because it had no relevance to the applicant's moral character after so many years. See at 26. Due process, the Court concluded, prohibited the state court to find the applicant morally unfit to practice law without any relevant evidence. See at 27. Applying familiar evidentiary standards in Dawson's case, the trial judge recognized that the "real issue" in admitting the gang membership evidence was whether its "probative value is outweighed by the danger of unfair prejudice." App. 52. The Delaware Supreme Court, likewise, examined the record to determine whether the gang membership evidence "improperly appeal[ed] to the juror's passions and prejudices concerning race, religion, or political affiliation." The standards employed by these courts went further than the fundamental unfairness *180 standard stated in and therefore satisfied the requirements of due process. Dawson has presented no convincing argument, based on the record as a whole, that the courts misapplied these standards to the facts of his case. For these reasons, I would affirm.

per_curiam

per_curiam

Harris v. Rosario

https://www.courtlistener.com/opinion/110270/harris-v-rosario/

https://www.courtlistener.com/api/rest/v3/clusters/110270/

1979-097

The Aid to Families with Dependent Children program (AFDC), 49 Stat. 627, as amended, 42 U.S. C. § 601 et seq., provides federal financial assistance to States and Territories to aid families with needy dependent children. Puerto Rico receives less assistance than do the States, 42 U.S. C. §§ 1308 (a) (1), 1396d (b) (1976 ed. and Supp. II). Appellees, AFDC recipients residing in Puerto Rico, filed this class action against the Secretary of Health, Education, and Welfare (now the Secretary of Health and Human Services) in March 1977 in the United States District Court for the District of Puerto Rico; they challenged the constitutionality of 42 U.S. C. §§ 1308 and 1396d (b), claiming successfully that the lower level of AFDC reimbursement provided to Puerto Rico violates the Fifth Amendment's equal protection guarantee. We disagree. Congress, which is empowered under the Territory Clause of the Constitution, U. S. Const., Art. IV, § 3, cl. 2, to "make all needful Rules and Regulations respecting the Territory . . . belonging to the United States," may treat Puerto Rico differently from States so long as there is a *652 rational basis for its actions. In Califano v. Torres, 435 U.S. 1 (1978) (per curiam), we concluded that a similar statutory classification was rationally grounded on three factors: Puerto Rican residents do not contribute to the federal treasury; the cost of treating Puerto Rico as a State under the statute would be high; and greater benefits could disrupt the Puerto Rican economy. These same considerations are forwarded here in support of §§ 1308 and 1396d (b), Juris. Statement 12-14,[*] and we see no reason to depart from our conclusion in Torres that they suffice to form a rational basis for the challenged statutory classification. We reverse. So ordered. MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, not now being persuaded that the Court's summary disposition in Califano v. Torres, 435 U.S. 1 (1978), so clearly controls this case, would note probable jurisdiction and set the case for oral argument. MR.

The Aid to Families with Dependent Children program (AFDC), as amended, 42 U.S. C. 601 et seq., provides federal financial assistance to States and Territories to aid families with needy dependent children. Puerto Rico receives less assistance than do the States, 42 U.S. C. 1308 (a) (1), 1396d (b) (1976 ed. and Supp. II). Appellees, AFDC recipients residing in Puerto Rico, filed this class action against the Secretary of Health, Education, and Welfare (now the Secretary of Health and Human Services) in March 1977 in the United States District Court for the District of Puerto Rico; they challenged the constitutionality of 42 U.S. C. 1308 and 1396d (b), claiming successfully that the lower level of AFDC reimbursement provided to Puerto Rico violates the Fifth Amendment's equal protection guarantee. We disagree. Congress, which is empowered under the Territory Clause of the Constitution, U. S. Const., Art. IV, 3, cl. 2, to "make all needful Rules and Regulations respecting the Territory belonging to the United States," may treat Puerto Rico differently from States so long as there is a *652 rational basis for its actions. In we concluded that a similar statutory classification was rationally grounded on three factors: Puerto Rican residents do not contribute to the federal treasury; the cost of treating Puerto Rico as a State under the statute would be high; and greater benefits could disrupt the Puerto Rican economy. These same considerations are forwarded here in support of 1308 and 1396d (b), Juris. Statement 12-14,[*] and we see no reason to depart from our conclusion in Torres that they suffice to form a rational basis for the challenged statutory classification. We reverse. So ordered. MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, not now being persuaded that the Court's summary disposition in so clearly controls this case, would note probable jurisdiction and set the case for oral argument. MR.

Justice Rehnquist

majority

Davis v. United States

https://www.courtlistener.com/opinion/108761/davis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108761/

1972-093

We are called upon to determine the effect of Rule 12 (b) (2) of the Federal Rules of Criminal Procedure on a post-conviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in violation of 18 U.S. C. §§ 2 and 2113 (a). Represented by appointed counsel,[1] petitioner entered a not-guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment. On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and *235 sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. 409 F.2d 1095 (CA5 1969). Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U.S. C. § 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a "key man" system of selection,[2] an asserted violation of the "mandatory requirement of the statute laws set forth . . . in title 28, U. S. C. A. Section 1861, 1863, 1864, and the 5th amendment of the United States Constitution."[3] His challenge only went to the composition of the grand jury and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion it relied on Shotwell Mfg. Co. v. United States, 371 U.S. 341 (1963), and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12 (b) (2) unless raised by motion prior to trial. Also, since the "key man" method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment; since the same grand jury that indicted petitioner indicted his two white accomplices; and since the *236 case against petitioner was "a strong one," the court determined that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the power to grant relief under Rule 12 (b) (2) for "cause shown." The Court of Appeals affirmed on the basis of Shotwell, supra, and Rule 12 (b) (2). Because its decision is contrary to decisions of the Ninth Circuit in Fernandez v. Meier, 408 F.2d 974 (1969), and Chee v. United States, 449 F.2d 747 (1971), we granted certiorari to resolve the conflict. Petitioner contends that because his § 2255 motion alleged deprivation of a fundamental constitutional right, one which has been recognized since Strauder v. West Virginia, 100 U.S. 303 (1880), his case is controlled by this Court's dispositions of Kaufman v. United States, 394 U.S. 217 (1969), and Sanders v. United States, 373 U.S. 1 (1963), rather than Shotwell Mfg. Co. v. United States, supra, and Rule 12 (b) (2). Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he "deliberately bypassed" or "understandingly and knowingly" waived his claim of unconstitutional grand jury composition. See Fay v. Noia, 372 U.S. 391 (1963), and Johnson v. Zerbst, 304 U.S. 458 (1938). I Rule 12 (b) (2) provides in pertinent part that "[d]efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial," and that failure to present such defenses or objections "constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver." By its terms, it applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the *237 trial court. According to the Notes of the Advisory Committee on Rules, the waiver provision was designed to continue existing law, which as exemplified by this Court's decision in United States v. Gale, 109 U.S. 65 (1883), was, inter alia, that defendants who pleaded to an indictment and went to trial without making any non-jurisdictional objection to the grand jury, even one unconstitutionally composed, waived any right of subsequent complaint on account thereof. Not surprisingly, therefore, the Advisory Committee's Notes expressly indicate that claims such as petitioner's are meant to be within the Rule's purview: "These two paragraphs [12 (b) (1) and (2)] classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12 (a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. . . . ". . . Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury . . . ." Notes of Advisory Committee following Fed. Rule Crim. Proc. 12, 18 U.S. C. App. This Court had occasion to consider the Rule's application in Shotwell Mfg. Co. v. United States, supra, a case involving tax-evasion convictions. In a motion filed more than four years after their trial, but before the conclusion of direct review, petitioners alleged that both the grand and petit jury arrays were illegally constituted because, inter alia, "the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population."[4] 371 U. S., at 361-362. *238 Deeming the case controlled by Rule 12 (b) (2), the District Court held a hearing to determine whether there was "cause" warranting relief from the waiver provision and it found that "the facts concerning the selection of the grand and petit juries were notorious and available to petitioners in the exercise of due diligence before the trial." Id., at 363. It concluded that their failure to exercise due diligence combined with the absence of prejudice from the alleged illegalities precluded the raising of the issue, and the Court of Appeals affirmed. In this Court, petitioners conceded that Rule 12 (b) (2) applied to their objection to the grand jury array, but they denied that it applied to the petit jury. Both objections were held foreclosed by the petitioners' years of inaction, and the lower courts' application of the Rule was affirmed. Shotwell thus confirms that Rule 12 (b) (2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds.[5] Despite the strong analogy between the effect of the Rule as construed in Shotwell and petitioner's § 2255 allegations, he nonetheless contends that Kaufman v. United States, supra, establishes that he is not precluded from raising *239 his constitutional challenge in a § 2255 proceeding.[6] See Fay v. Noia, supra. We disagree. In Kaufman, the defendant in a bank robbery conviction sought collateral relief under § 2255 alleging that illegally seized evidence had been admitted against him at trial, over a timely objection, and that this evidence resulted in the rejection of his only defense to the charge. The application was denied in both the District Court and the Court of Appeals on the ground that it had not been raised on appeal from the judgment of conviction and "that a motion under § 2255 cannot be used in lieu of an appeal." 394 U.S., at 223. This Court reversed, however, holding that when constitutional claims are asserted, post-conviction relief cannot be denied solely on the ground that relief should have been sought by appeal. Ibid. But the Court in Kaufman was not dealing with the sort of express waiver provision contained in Rule 12 (b) (2) which specifically provides for the waiver of a particular *240 kind of constitutional claim if it be not timely asserted. The claim in Kaufman was that the applicable provisions of § 2255 by implication forbade the assertion of a constitutional claim of unlawful search and seizure where the defendant failed to assert the claim on appeal from the judgment of conviction.[7] See, e. g., Sunal v. Large, 332 U.S. 174, 179 (1947). The Court held that the statute did not preclude the granting of relief on such a claim simply because it had not been asserted on appeal, where there was no indication of a knowing and deliberate bypass of the appeal procedure. But here the Government's claim is not that § 2255 itself limits or precludes the assertion of petitioner's claim, but that the separate provisions of Rule 12 (b) (2) do so. Kaufman, therefore, is dispositive only if the absence of a statutory provision for waiver in § 2255 and the federal habeas statute by implication precludes the application to post-conviction proceedings of the express waiver provision found in the Federal Rules of Criminal Procedure. Shotwell held that a claim of unconstitutional grand jury composition raised four years after conviction, but while the appeal proceedings were still alive, was governed by Rule 12 (b) (2). Both the reasons for the Rule and the normal rules of statutory construction clearly indicate that no more lenient standard of waiver should *241 apply to a claim raised three years after conviction simply because the claim is asserted by way of collateral attack rather than in the criminal proceeding itself. The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult. Rule 12 (b) (2) promulgated by this Court and, pursuant to 18 U.S. C. § 3771, "adopted" by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived. See Singer v. United States, 380 U.S. 24, 37 (1965). Were we confronted with an express conflict between the Rule and a prior statute, the force of § 3771, providing that "[a]ll laws in conflict with such rules shall be of no further force or effect," is such that the prior inconsistent statute would be deemed to have been repealed. Cf. Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941). The Federal Rules of Criminal Procedure do not ex proprio vigore govern post-conviction proceedings, and had Congress in enacting the statutes governing federal collateral relief specifically there dealt with the issue of waiver, we would be faced with a difficult question of repeal by implication of such a provision by the later *242 enacted rules of criminal procedure. But Congress did not deal with the question of waiver in the federal collateral relief statutes, and in Kaufman this Court held that, since § 2255 had not spoken on the subject of waiver with respect to claims of unlawful search and seizure, a particular doctrine of waiver would be applied by this Court in interpreting the statute. We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of "cause" for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of "cause" which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review. Our conclusion in this regard is further buttressed by the Court's observation in Parker v. North Carolina, 397 U.S. 790, 798 (1970), decided the year after Kaufman, that "[w]hether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide." The context of the Court's language makes it apparent that the question was framed in terms of waiver and timely assertion of such a claim in state criminal proceedings. But if the question were left open with respect to state proceedings, it must have been at least patently open with respect to *243 federal habeas review of federal convictions, where Congress is the lawgiver both as to the procedural rules governing the criminal trial and the principles governing collateral review. II The principles of Rule 12 (b) (2), as construed in Shotwell, are not difficult to apply to the facts of this case. Petitioner alleged the deprivation of a substantial constitutional right, recognized by this Court as applicable to state criminal proceedings from Bush v. Kentucky, 107 U.S. 110 (1883), through Alexander v. Louisiana, 405 U.S. 625 (1972). But he failed to assert the claim until long after his trial, verdict, sentence, and appeal had run their course. In findings challenged only half-heartedly here, the District Court determined that no motion, oral or otherwise, raised the issue of discrimination in the selection of the grand jurors prior to trial. The Court of Appeals affirmed, and on petition for rehearing conducted its own search of the record in a vain effort to see whether the files or docket entries in the case supported petitioner's contention that he had made such a motion. We will not disturb the coordinate findings of these two courts on a question such as this. The waiver provision of the Rule therefore coming into play, the District Court held that there had been no "cause shown" which would justify relief. It said: "Petitioner offers no plausible explanation of his failure to timely make his objection to the composition of the grand jury. The method of selecting grand jurors then in use was the same system employed by this court for years. No reason has been suggested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial. The same *244 grand jury that indicted petitioner also indicted his two white accomplices. The case had no racial overtones. The government's case against petitioner was, although largely circumstantial, a strong one. There was certainly sufficient evidence against petitioner to justify a grand jury in determining that he should stand trial for the offense with which he was charged. . . . Petitioner has shown no cause why the court should grant him relief from his waiver of the objection to the composition of the grand jury . . . ." In denying the relief, the court took into consideration the question of prejudice to petitioner. This approach was approved in Shotwell where the Court stated: "[W]here, as here, objection to the jury selection has not been timely raised under Rule 12 (b) (2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule." 371 U.S., at 363. Petitioner seeks to avoid this aspect of Shotwell by asserting that there both lower courts had found that petitioners were not prejudiced in any way by the alleged illegalities whereas under Peters v. Kiff, 407 U.S. 493 (1972), prejudice is presumed in cases where there is an allegation of racial discrimination in grand jury composition. But Peters dealt with whether or not a white man had a substantive constitutional right to set aside his conviction upon proof that Negroes had been systematically excluded from the state grand and petit juries which indicted and tried him. Three Justices dissented from the Court's upholding of such a substantive right on the ground that no prejudice had been shown, and three concurred separately in the *245 judgment. But the three opinions delivered in Peters, supra, all indicate a focus on the existence of the constitutional right, rather than its possible loss through delay in asserting it. The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner. We hold that the District Court did not abuse its discretion in denying petitioner relief from the application of the waiver provision of Rule 12 (b) (2), and that having concluded he was not entitled to such relief, it properly dismissed his motion under § 2255. Accordingly, the judgment of the Court of Appeals is Affirmed. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.

We are called upon to determine the effect of Rule 12 (b) (2) of the Federal Rules of Criminal Procedure on a post-conviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in violation of 18 U.S. C. 2 and 2113 (a). Represented by appointed counsel,[1] petitioner entered a not-guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment. On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and *235 sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U.S. C. 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a "key man" system of selection,[2] an asserted violation of the "mandatory requirement of the statute laws set forth in title 28, U. S. C. A. Section 1861, 1863, 1864, and the 5th amendment of the United Constitution."[3] His challenge only went to the composition of the grand jury and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion it relied on Mfg. and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12 (b) (2) unless raised by motion prior to trial. Also, since the "key man" method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment; since the same grand jury that indicted petitioner indicted his two white accomplices; and since the *236 case against petitioner was "a strong one," the court determined that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the power to grant relief under Rule 12 (b) (2) for "cause shown." The Court of Appeals affirmed on the basis of and Rule 12 (b) (2). Because its decision is contrary to decisions of the Ninth Circuit in and we granted certiorari to resolve the conflict. Petitioner contends that because his 2255 motion alleged deprivation of a fundamental constitutional right, one which has been recognized since his case is controlled by this Court's dispositions of and rather than Mfg. and Rule 12 (b) (2). Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he "deliberately bypassed" or "understandingly and knowingly" waived his claim of unconstitutional grand jury composition. See and I Rule 12 (b) (2) provides in pertinent part that "[d]efenses and objections based on defects in the institution of the prosecution or in the indictment may be raised only by motion before trial," and that failure to present such defenses or objections "constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver." By its terms, it applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the *2 trial court. According to the Notes of the Advisory Committee on Rules, the waiver provision was designed to continue existing law, which as exemplified by this Court's decision in United v. Gale, was, inter alia, that defendants who pleaded to an indictment and went to trial without making any non-jurisdictional objection to the grand jury, even one unconstitutionally composed, waived any right of subsequent complaint on account thereof. Not surprisingly, therefore, the Advisory Committee's Notes expressly indicate that claims such as petitioner's are meant to be within the Rule's purview: "These two paragraphs [12 (b) (1) and (2)] classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12 (a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. ". Among the defenses and objections in this group are the following: Illegal selection or organization of the grand jury" Notes of Advisory Committee following Fed. Rule Crim. Proc. 12, 18 U.S. C. App. This Court had occasion to consider the Rule's application in Mfg. a case involving tax-evasion convictions. In a motion filed more than four years after their trial, but before the conclusion of direct review, petitioners alleged that both the grand and petit jury arrays were illegally constituted because, inter alia, "the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population."[4] -362. *238 Deeming the case controlled by Rule 12 (b) (2), the District Court held a hearing to determine whether there was "cause" warranting relief from the waiver provision and it found that "the facts concerning the selection of the grand and petit juries were notorious and available to petitioners in the exercise of due diligence before the trial." It concluded that their failure to exercise due diligence combined with the absence of prejudice from the alleged illegalities precluded the raising of the issue, and the Court of Appeals affirmed. In this Court, petitioners conceded that Rule 12 (b) (2) applied to their objection to the grand jury array, but they denied that it applied to the petit jury. Both objections were held foreclosed by the petitioners' years of inaction, and the lower courts' application of the Rule was affirmed. thus confirms that Rule 12 (b) (2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds.[5] Despite the strong analogy between the effect of the Rule as construed in and petitioner's 2255 allegations, he nonetheless contends that establishes that he is not precluded from raising *239 his constitutional challenge in a 2255 proceeding.[6] See We disagree. In Kaufman, the defendant in a bank robbery conviction sought collateral relief under 2255 alleging that illegally seized evidence had been admitted against him at trial, over a timely objection, and that this evidence resulted in the rejection of his only defense to the charge. The application was denied in both the District Court and the Court of Appeals on the ground that it had not been raised on appeal from the judgment of conviction and "that a motion under 2255 cannot be used in lieu of an appeal." This Court reversed, however, holding that when constitutional claims are asserted, post-conviction relief cannot be denied solely on the ground that relief should have been sought by appeal. But the Court in Kaufman was not dealing with the sort of express waiver provision contained in Rule 12 (b) (2) which specifically provides for the waiver of a particular *240 kind of constitutional claim if it be not timely asserted. The claim in Kaufman was that the applicable provisions of 2255 by implication forbade the assertion of a constitutional claim of unlawful search and seizure where the defendant failed to assert the claim on appeal from the judgment of conviction.[7] See, e. g., The Court held that the statute did not preclude the granting of relief on such a claim simply because it had not been asserted on appeal, where there was no indication of a knowing and deliberate bypass of the appeal procedure. But here the Government's claim is not that 2255 itself limits or precludes the assertion of petitioner's claim, but that the separate provisions of Rule 12 (b) (2) do so. Kaufman, therefore, is dispositive only if the absence of a statutory provision for waiver in 2255 and the federal habeas statute by implication precludes the application to post-conviction proceedings of the express waiver provision found in the Federal Rules of Criminal Procedure. held that a claim of unconstitutional grand jury composition raised four years after conviction, but while the appeal proceedings were still alive, was governed by Rule 12 (b) (2). Both the reasons for the Rule and the normal rules of statutory construction clearly indicate that no more lenient standard of waiver should *241 apply to a claim raised three years after conviction simply because the claim is asserted by way of collateral attack rather than in the criminal proceeding itself. The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult. Rule 12 (b) (2) promulgated by this Court and, pursuant to 18 U.S. C. 71, "adopted" by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived. See Singer v. United Were we confronted with an express conflict between the Rule and a prior statute, the force of 71, providing that "[a]ll laws in conflict with such rules shall be of no further force or effect," is such that the prior inconsistent statute would be deemed to have been repealed. Cf. The Federal Rules of Criminal Procedure do not ex proprio vigore govern post-conviction proceedings, and had Congress in enacting the statutes governing federal collateral relief specifically there dealt with the issue of waiver, we would be faced with a difficult question of repeal by implication of such a provision by the later *242 enacted rules of criminal procedure. But Congress did not deal with the question of waiver in the federal collateral relief statutes, and in Kaufman this Court held that, since 2255 had not spoken on the subject of waiver with respect to claims of unlawful search and seizure, a particular doctrine of waiver would be applied by this Court in interpreting the statute. We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of "cause" for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of "cause" which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review. Our conclusion in this regard is further buttressed by the Court's observation in decided the year after Kaufman, that "[w]hether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide." The context of the Court's language makes it apparent that the question was framed in terms of waiver and timely assertion of such a claim in state criminal proceedings. But if the question were left open with respect to state proceedings, it must have been at least patently open with respect to *243 federal habeas review of federal convictions, where Congress is the lawgiver both as to the procedural rules governing the criminal trial and the principles governing collateral review. II The principles of Rule 12 (b) (2), as construed in are not difficult to apply to the facts of this case. Petitioner alleged the deprivation of a substantial constitutional right, recognized by this Court as applicable to state criminal proceedings from 7 U.S. 1 through But he failed to assert the claim until long after his trial, verdict, sentence, and appeal had run their course. In findings challenged only half-heartedly here, the District Court determined that no motion, oral or otherwise, raised the issue of discrimination in the selection of the grand jurors prior to trial. The Court of Appeals affirmed, and on petition for rehearing conducted its own search of the record in a vain effort to see whether the files or docket entries in the case supported petitioner's contention that he had made such a motion. We will not disturb the coordinate findings of these two courts on a question such as this. The waiver provision of the Rule therefore coming into play, the District Court held that there had been no "cause shown" which would justify relief. It said: "Petitioner offers no plausible explanation of his failure to timely make his objection to the composition of the grand jury. The method of selecting grand jurors then in use was the same system employed by this court for years. No reason has been suggested why petitioner or his attorney could not have ascertained all of the facts necessary to present the objection to the court prior to trial. The same *244 grand jury that indicted petitioner also indicted his two white accomplices. The case had no racial overtones. The government's case against petitioner was, although largely circumstantial, a strong one. There was certainly sufficient evidence against petitioner to justify a grand jury in determining that he should stand trial for the offense with which he was charged. Petitioner has shown no cause why the court should grant him relief from his waiver of the objection to the composition of the grand jury" In denying the relief, the court took into consideration the question of prejudice to petitioner. This approach was approved in where the Court stated: "[W]here, as here, objection to the jury selection has not been timely raised under Rule 12 (b) (2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule." 1 U.S., Petitioner seeks to avoid this aspect of by asserting that there both lower courts had found that petitioners were not prejudiced in any way by the alleged illegalities whereas under prejudice is presumed in cases where there is an allegation of racial discrimination in grand jury composition. But Peters dealt with whether or not a white man had a substantive constitutional right to set aside his conviction upon proof that Negroes had been systematically excluded from the state grand and petit juries which indicted and tried him. Three Justices dissented from the Court's upholding of such a substantive right on the ground that no prejudice had been shown, and three concurred separately in the *245 judgment. But the three opinions delivered in Peters, all indicate a focus on the existence of the constitutional right, rather than its possible loss through delay in asserting it. The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner. We hold that the District Court did not abuse its discretion in denying petitioner relief from the application of the waiver provision of Rule 12 (b) (2), and that having concluded he was not entitled to such relief, it properly dismissed his motion under 2255. Accordingly, the judgment of the Court of Appeals is Affirmed. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.

Justice Rehnquist

majority

United States v. Flores-Montano

https://www.courtlistener.com/opinion/134729/united-states-v-flores-montano/

https://www.courtlistener.com/api/rest/v3/clusters/134729/

2003-045

Customs officials seized 37 kilograms — a little more than 81 pounds — of marijuana from respondent Manuel Flores-Montano's gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, United States v. Molina-Tarazon, 279 F.3d 709 (2002), held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. No. 02-50306, 2003 WL 22410705 (Mar. 14, 2003). We hold that the search in question did not require reasonable suspicion. Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station. *151 At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes. A grand jury for the Southern District of California indicted respondent on one count of unlawfully importing marijuana, in violation of 21 U.S. C. § 952, and one count of possession of marijuana with intent to distribute, in violation of § 841(a)(1). Relying on Molina-Tarazon, respondent filed a motion to suppress the marijuana recovered from the gas tank. In Molina-Tarazon, a divided panel of the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment. 279 F.3d, at 717. The Government advised the District Court that it was not relying on reasonable suspicion as a basis for denying respondent's suppression motion, but that it believed Molina-Tarazon was wrongly decided. The District Court, relying on Molina-Tarazon, held that reasonable suspicion was required to justify the search and, accordingly, granted respondent's motion to suppress. The Court of Appeals, citing Molina-Tarazon, summarily affirmed the District Court's judgment. No. 02-50306, 2003 WL 22410705 (CA9, Mar. 14, 2003). We granted certiorari, 540 U.S. 945 (2003), and now reverse. *152 In Molina-Tarazon, the Court of Appeals decided a case presenting similar facts to the one at bar. It asked "whether [the removal and dismantling of the defendant's fuel tank] is a `routine' border search for which no suspicion whatsoever is required." 279 F.3d, at 711. The Court of Appeals stated that "[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion," and the "critical factor" in determining whether a search is "routine" is the "degree of intrusiveness." Id., at 712-713. The Court of Appeals seized on language from our opinion in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), in which we used the word "routine" as a descriptive term in discussing border searches. Id., at 538 ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant"); id., at 541, n. 4 ("Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches"). The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person — dignity and privacy interests of the person being searched — simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles. The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the *153 border." United States v. Ramsey, 431 U.S. 606, 616 (1977). Congress, since the beginning of our Government, "has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." Montoya de Hernandez, supra, at 537 (citing Ramsey, supra, at 616-617 (citing Act of July 31, 1789, ch. 5, 1 Stat. 29)). The modern statute that authorized the search in this case, 46 Stat. 747, 19 U.S. C. § 1581(a),[1] derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, see United States v. Villamonte-Marquez, 462 U.S. 579, 584 (1983), and reflects the "impressive historical pedigree" of the Government's power and interest, id., at 585. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity. That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles' fuel tank. Over the past 5½ fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. App. to Pet. for Cert. 12a. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. Ibid. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of *154 San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days. Id., at 16a. Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. Montoya de Hernandez, supra, at 538. We have long recognized that automobiles seeking entry into this country may be searched. See Carroll v. United States, 267 U.S. 132, 154 (1925) ("Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in"). It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile's passenger compartment. Second, respondent argues that the Fourth Amendment "protects property as well as privacy," Soldal v. Cook County, 506 U.S. 56, 62 (1992), and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property.[2] According to *155 the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the southern border were negative (i. e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident. Brief for United States 31. Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery. See, e. g., 31 U.S. C. § 3723; 19 U.S. C. § 1630. While the interference with a motorist's possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government's paramount interest in protecting the border.[3] For the reasons stated, we conclude that the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank. While it may be true that some *156 searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Customs officials seized 37 kilograms — a little more than 81 pounds — of marijuana from respondent Manuel Flores-Montano's gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, United held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. No. 02-50306, We hold that the search in question did not require reasonable suspicion. Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station. *151 At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes. A grand jury for the Southern District of California indicted respondent on one count of unlawfully importing marijuana, in violation of 21 U.S. C. 952, and one count of possession of marijuana with intent to distribute, in violation of 841(a)(1). Relying on Molina-Tarazon, respondent filed a motion to suppress the marijuana recovered from the gas tank. In Molina-Tarazon, a divided panel of the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment. The Government advised the District Court that it was not relying on reasonable suspicion as a basis for denying respondent's suppression motion, but that it believed Molina-Tarazon was wrongly decided. The District Court, relying on Molina-Tarazon, held that reasonable suspicion was required to justify the search and, accordingly, granted respondent's motion to suppress. The Court of Appeals, citing Molina-Tarazon, summarily affirmed the District Court's judgment. No. 02-50306, We granted certiorari, and now reverse. *152 In Molina-Tarazon, the Court of Appeals decided a case presenting similar facts to the one at bar. It asked "whether [the removal and dismantling of the defendant's fuel tank] is a `routine' border search for which no suspicion whatsoever is required." The Court of Appeals stated that "[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion," and the "critical factor" in determining whether a search is "routine" is the "degree of intrusiveness." The Court of Appeals seized on language from our opinion in United in which we used the word "routine" as a descriptive term in discussing border searches. ; The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person — dignity and privacy interests of the person being searched — simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles. The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the *153 border." United Congress, since the beginning of our Government, "has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country." Montoya de at 537 (citing at -617 (citing Act of July 31, 1789, ch. 5, )). The modern statute that authorized the search in this case, 19 U.S. C. 1581(a),[1] derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, 31, see United and reflects the "impressive historical pedigree" of the Government's power and interest, It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity. That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles' fuel tank. Over the past 5½ fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. App. to Pet. for Cert. 12a. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of * San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days. at 16a. Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. Montoya de We have long recognized that automobiles seeking entry into this country may be searched. See It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile's passenger compartment. Second, respondent argues that the Fourth Amendment "protects property as well as privacy," and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property.[2] According to *155 the Government, for example, in fiscal year 348 gas tank searches conducted along the southern border were negative (i. e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident. Brief for United States 31. Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassemblies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery. See, e. g., 31 U.S. C. 3723; 19 U.S. C. 1630. While the interference with a motorist's possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government's paramount interest in protecting the border.[3] For the reasons stated, we conclude that the Government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank. While it may be true that some *156 searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Stevens

dissenting

Printz v. United States

https://www.courtlistener.com/opinion/118148/printz-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118148/

1996-095

When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion is firmly supported by the text of the Constitution, the early history of the Nation, decisions of this Court, and a correct understanding of the basic structure of the Federal Government. These cases do not implicate the more difficult questions associated with congressional coercion of state legislatures addressed in New York v. United States, 505 U.S. 144 (1992). Nor need we consider the wisdom of relying on local officials rather than federal agents to carry out aspects of a federal program, or even the question whether such officials may be required to perform a federal function on a permanent basis. The question is whether Congress, acting on behalf of the people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed for the development of a federal gun control program. It is remarkably similar to the question, heavily debated by the Framers of the Constitution, whether Congress could require state agents to collect federal taxes. Or the question *940 whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore. Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the Tenth Amendment, "in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court," ante, at 905, that forbids the enlistment of state officers to make that response effective? More narrowly, what basis is there in any of those sources for concluding that it is the Members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today? Perhaps today's majority would suggest that no such emergency is presented by the facts of these cases. But such a suggestion is itself an expression of a policy judgment. And Congress' view of the matter is quite different from that implied by the Court today. The Brady Act was passed in response to what Congress described as an "epidemic of gun violence." H. R. Rep. No. 103-344, p. 8 (1993). The Act's legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Ibid. Congress expressed special concern that "[t]he level of firearm violence in this country is, by far, the highest among developed nations." Ibid. The partial solution contained in the Brady Act, a mandatory background check before a *941 handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70% of the rejected purchasers were convicted or indicted felons. See U. S. Dept. of Justice, Bureau of Justice Statistics Bulletin, A National Estimate: Presale Firearm Checks 1 (Feb. 1997). Whether or not the evaluation reflected in the enactment of the Brady Act is correct as to the extent of the danger and the efficacy of the legislation, the congressional decision surely warrants more respect than it is accorded in today's unprecedented decision. I The text of the Constitution provides a sufficient basis for a correct disposition of these cases. Article I, § 8, grants Congress the power to regulate commerce among the States. Putting to one side the revisionist views expressed by Justice Thomas in his concurring opinion in United States v. Lopez, 514 U.S. 549, 584 (1995), there can be no question that that provision adequately supports the regulation of commerce in handguns effected by the Brady Act. Moreover, the additional grant of authority in that section of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" is surely adequate to support the temporary enlistment of local police officers in the process of identifying persons who should not be entrusted with the possession of handguns. In short, the affirmative delegation of power in Article I provides ample authority for the congressional enactment. Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers. Using language *942 that plainly refers only to powers that are "not " delegated to Congress, it provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U. S. Const., Amdt. 10. The Amendment confirms the principle that the powers of the Federal Government are limited to those affirmatively granted by the Constitution, but it does not purport to limit the scope or the effectiveness of the exercise of powers that are delegated to Congress.[1] See New York v. United States, 505 U. S., at 156 ("In a case . . . involving the division of authority between federal and state governments, the two inquiries are mirror images of each other"). Thus, the Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens.[2] Indeed, it would be more reasonable to infer *943 that federal law may impose greater duties on state officials than on private citizens because another provision of the Constitution requires that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." Art. VI, cl. 3. It is appropriate for state officials to make an oath or affirmation to support the Federal Constitution because, as explained in The Federalist, they "have an essential agency in giving effect to the federal Constitution." The Federalist No. 44, p. 312 (E. Bourne ed. 1947) (J. Madison).[3] There can be no conflict between their duties to the State and those owed to the Federal Government because Article VI unambiguously provides that federal law "shall be the supreme Law of the Land," binding in every State. U. S. Const., Art. *944 VI, cl. 2. Thus, not only the Constitution, but every law enacted by Congress as well, establishes policy for the States just as firmly as do laws enacted by state legislatures. The reasoning in our unanimous opinion explaining why state tribunals with ordinary jurisdiction over tort litigation can be required to hear cases arising under the Federal Employers' Liability Act applies equally to local law enforcement officers whose ordinary duties parallel the modest obligations imposed by the Brady Act: "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State. As was said by this court in Claflin v. Houseman, 93 U.S. 130, 136, 137: "`The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty.' " Second Employers' Liabil- ity Cases, 223 U.S. 1, 57 (1912). See also Testa v. Katt, 330 U.S. 386, 392 (1947). There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I. *945 II Under the Articles of Confederation the National Government had the power to issue commands to the several sovereign States, but it had no authority to govern individuals directly. Thus, it raised an army and financed its operations by issuing requisitions to the constituent members of the Confederacy, rather than by creating federal agencies to draft soldiers or to impose taxes. That method of governing proved to be unacceptable, not because it demeaned the sovereign character of the several States, but rather because it was cumbersome and inefficient. Indeed, a confederation that allows each of its members to determine the ways and means of complying with an overriding requisition is obviously more deferential to state sovereignty concerns than a national government that uses its own agents to impose its will directly on the citizenry. The basic change in the character of the government that the Framers conceived was designed to enhance the power of the National Government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens ("the only proper objects of government") was ineffective under the Articles of Confederation, Alexander Hamilton explained that "we must extend the authority of the Union to the persons of the citizens." The Federalist No. 15, at 101 (emphasis added). Indeed, the historical materials strongly suggest that the founders intended to enhance the capacity of the Federal Government by empowering it—as a part of the new authority to make demands directly on individual citizens—to act through local officials. Hamilton made clear that the new Constitution, "by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws." The Federalist No. 27, at 180. Hamilton's meaning was unambiguous; the Federal Government was to have the power to demand that local officials *946 implement national policy programs. As he went on to explain: "It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which [the State and Federal Governments] might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State." Ibid.[4] More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the Federal Government. Opponents of the Constitution had repeatedly expressed fears that the new Federal Government's ability to impose taxes directly on the citizenry would result in an overbearing presence of federal tax collectors in the States.[5] Federalists rejoined that this problem would not arise because, as Hamilton explained, "the United States . . . will make use of the State officers and State regulations for collecting" certain *947 taxes. Id., No. 36, at 235. Similarly, Madison made clear that the new central Government's power to raise taxes directly from the citizenry would "not be resorted to, except for supplemental purposes of revenue . . . and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers . . . appointed by the several States." Id., No. 45, at 318.[6] The Court's response to this powerful historical evidence is weak. The majority suggests that "none of these statements necessarily implies . . . Congress could impose these responsibilities without the consent of the States." Ante, at 910-911 (emphasis deleted). No fair reading of these materials can justify such an interpretation. As Hamilton explained, the power of the Government to act on "individual citizens"—including "employ[ing] the ordinary magistracy" of the States—was an answer to the problems faced by a central Government that could act only directly "upon the States in their political or collective capacities." The Federalist, No. 27, at 179-180. The new Constitution would avoid this problem, resulting in "a regular and peaceable execution of the laws of the Union." Ibid. This point is made especially clear in Hamilton's statement that "the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. " Ibid. (second emphasis added). It is hard to imagine a more unequivocal statement that state *948 judicial and executive branch officials may be required to implement federal law where the National Government acts within the scope of its affirmative powers.[7] The Court makes two unpersuasive attempts to discount the force of this statement. First, according to the majority, because Hamilton mentioned the Supremacy Clause without specifically referring to any "congressional directive," the statement does not mean what it plainly says. Ante, at 912. But the mere fact that the Supremacy Clause is the source of the obligation of state officials to implement congressional directives does not remotely suggest that they might be "`incorporat[ed] into the operations of the national government,' " The Federalist No. 27, at 177 (A. Hamilton), before their obligations have been defined by Congress. Federal law establishes policy for the States just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law.[8] Second, the majority suggests that interpreting this passage to mean what it says would conflict with our decision in New York v. United States. Ante, at 912. But since the New York opinion did not mention The Federalist No. 27, it does not affect either the relevance or the weight of the historical evidence provided by No. 27 insofar as it relates to state courts and magistrates. Bereft of support in the history of the founding, the Court rests its conclusion on the claim that there is little evidence the National Government actually exercised such a power in *949 the early years of the Republic. See ante, at 907-908. This reasoning is misguided in principle and in fact. While we have indicated that the express consideration and resolution of difficult constitutional issues by the First Congress in particular "provides `contemporaneous and weighty evidence' of the Constitution's meaning since many of [its] Members . . . `had taken part in framing that instrument,' " Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)), we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O'Connor quite properly noted in New York, "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." 505 U.S., at 157. More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, see ante, at 905-909, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority's description of these early statutes is both incomplete and at times misleading. For example, statutes of the early Congresses required in mandatory terms that state judges and their clerks perform various executive duties with respect to applications for citizenship. The First Congress enacted a statute requiring that the state courts consider such applications, specifying that the state courts "shall administer" an oath of loyalty to the United States, and that "the clerk of such court shall record such application." Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103 (emphasis added). Early legislation passed by the Fifth Congress also imposed reporting requirements relating to naturalization on court clerks, specifying that failure to perform those duties would result in a fine. Act of June 18, *950 1798, ch. 54, § 2, 1 Stat. 567 (specifying that these obligations "shall be the duty of the clerk" (emphasis added)). Not long thereafter, the Seventh Congress mandated that state courts maintain a registry of aliens seeking naturalization. Court clerks were required to receive certain information from aliens, record those data, and provide certificates to the aliens; the statute specified fees to be received by local officials in compensation. Act of Apr. 14, 1802, ch. 28, § 2, 2 Stat. 154— 155 (specifying that these burdens "shall be the duty of such clerk" including clerks "of a . . . state" (emphasis added)).[9] Similarly, the First Congress enacted legislation requiring state courts to serve, functionally, like contemporary regulatory *951 agencies in certifying the seaworthiness of vessels. Act of July 20, 1790, ch. 29, § 3, 1 Stat. 132-133. The majority casts this as an adjudicative duty, ante, at 907, but that characterization is misleading. The law provided that upon a complaint raised by a ship's crew members, the state courts were (if no federal court was proximately located) to appoint an investigative committee of three persons "most skilful in maritime affairs" to report back. On this basis, the judge was to determine whether the ship was fit for its intended voyage. The statute sets forth, in essence, procedures for an expert inquisitorial proceeding, supervised by a judge but otherwise more characteristic of executive activity.[10] The Court assumes that the imposition of such essentially executive duties on state judges and their clerks sheds no light on the question whether executive officials might have an immunity from federal obligations. Ibid. Even assuming that the enlistment of state judges in their judicial role for federal purposes is irrelevant to the question whether executive officials may be asked to perform the same function—a claim disputed below, see infra, at 968-970—the majority's analysis is badly mistaken. We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual. As one scholar has noted, "two centuries ago, state and local judges and associated judicial personnel *952 performed many of the functions today performed by executive officers, including such varied tasks as laying city streets and ensuring the seaworthiness of vessels." Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1045, n. 176 (1995). And, of course, judges today continue to perform a variety of functions that may more properly be described as executive. See, e. g., Forrester v. White, 484 U.S. 219, 227 (1988) (noting "intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform"). The majority's insistence that this evidence of federal enlistment of state officials to serve executive functions is irrelevant simply because the assistance of "judges" was at issue rests on empty formalistic reasoning of the highest order.[11] The Court's evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between *953 policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution.[12] Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, ch. 15, § 6, 40 Stat. 80-81, surely indicates that the National Legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully "request[ing]" state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress' power to use mandatory language if necessary.[13] If there were merit to the Court's appraisal of this incident, one would assume that there would have been some contemporary comment on the supposed constitutional concern that hypothetically might have motivated the President's choice of language.[14] *954 The Court concludes its review of the historical materials with a reference to the fact that our decision in INS v. Chadha, 462 U.S. 919 (1983), invalidated a large number of statutes enacted in the 1970's, implying that recent enactments by Congress that are similar to the Brady Act are not entitled to any presumption of validity. But in Chadha, unlike these cases, our decision rested on the Constitution's express bicameralism and presentment requirements, id., at 946, not on judicial inferences drawn from a silent text and a historical record that surely favors the congressional understanding. Indeed, the majority's opinion consists almost entirely of arguments against the substantial evidence weighing in opposition to its view; the Court's ruling is strikingly lacking in affirmative support. Absent even a modicum of textual foundation for its judicially crafted constitutional rule, there should be a presumption that if the Framers had actually intended such a rule, at least one of them would have mentioned it.[15] *955 III The Court's "structural" arguments are not sufficient to rebut that presumption. The fact that the Framers intended to preserve the sovereignty of the several States simply does not speak to the question whether individual state employees may be required to perform federal obligations, such as registering young adults for the draft, 40 Stat. 80-81, creating state emergency response commissions designed to manage the release of hazardous substances, 42 U.S. C. §§ 11001, 11003, collecting and reporting data on underground storage tanks that may pose an environmental hazard, § 6991a, and reporting traffic fatalities, 23 U.S. C. § 402(a), and missing children, 42 U.S. C. § 5779(a), to a federal agency.[16] *956 As we explained in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985): "[T]he principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress." Id., at 550-551. Given the fact that the Members of Congress are elected by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the Legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom. Indeed, the presumption of validity that supports all congressional enactments[17] has added force with respect to policy *957 judgments concerning the impact of a federal statute upon the respective States. The majority points to nothing suggesting that the political safeguards of federalism identified in Garcia need be supplemented by a rule, grounded in neither constitutional history nor text, flatly prohibiting the National Government from enlisting state and local officials in the implementation of federal law. Recent developments demonstrate that the political safeguards protecting Our Federalism are effective. The majority expresses special concern that were its rule not adopted the Federal Government would be able to avail itself of the services of state government officials "at no cost to itself." Ante, at 922; see also ante, at 930 (arguing that "Members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes"). But this specific problem of federal actions that have the effect of imposing so-called "unfunded mandates" on the States has been identified and meaningfully addressed by Congress in recent legislation.[18] See Unfunded *958 Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48. The statute was designed "to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State . . . governments without adequate Federal funding, in a manner that may displace other essential State. . . governmental priorities." 2 U.S. C. § 1501(2) (1994 ed., Supp. II). It functions, inter alia, by permitting Members of Congress to raise an objection by point of order to a pending bill that contains an "unfunded mandate," as defined by the statute, of over $50 million.[19] The mandate may not then be enacted unless the Members make an explicit decision to proceed anyway. See Recent Legislation, Unfunded Mandates Reform Act of 1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute). Whatever the ultimate impact of the new legislation, its passage demonstrates that *959 unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances.[20] Perversely, the majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government's ability to rely on the magistracy of the States. See, e. g., The Federalist No. 36, at 234-235 (A. Hamilton); id., No. 45, at 318 (J. Madison).[21] With colorful hyperbole, the Court suggests that the unity in the Executive Branch of the Federal Government "would be shattered, and the power of the President would be subject *960 to reduction, if Congress could . . . requir[e] state officers to execute its laws." Ante, at 923. Putting to one side the obvious tension between the majority's claim that impressing state police officers will unduly tip the balance of power in favor of the federal sovereign and this suggestion that it will emasculate the Presidency, the Court's reasoning contradicts New York v. United States.[22] That decision squarely approved of cooperative federalism programs, designed at the national level but implemented principally by state governments. New York disapproved of a particular method of putting such programs into place, not the existence of federal programs implemented locally. See 505 U.S., at 166 ("Our cases have identified a variety of methods . . . by which Congress may urge a State to adopt a legislative program consistent with federal interests"). Indeed, nothing in the majority's holding calls into question the three mechanisms for constructing such programs that New York expressly approved. Congress may require the States to implement its programs as a condition of federal spending,[23] in order to avoid the threat of unilateral federal action in the area,[24] or as a part of a program that affects States and private parties alike.[25] The majority's suggestion in response to this dissent that Congress' ability to create such programs is limited, ante, at 923, n. 12, is belied by the importance and sweep of the federal statutes that meet this description, some of which we described in New York. See *961 505 U. S., at 167-168 (mentioning, inter alia, the Clean Water Act, the Occupational Safety and Health Act of 1970, and the Resource Conservation and Recovery Act of 1976). Nor is there force to the assumption under girding the Court's entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule making, is at issue, it may be appropriate for Congress either to pre-empt the State's lawmaking power and fashion the federal rule itself, or to respect the State's power to fashion its own rules. But these cases, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involve the imposition of modest duties on individual officers. The Court seems to accept the fact that Congress could require private persons, such as hospital executives or school administrators, to provide arms merchants with relevant information about a prospective purchaser's fitness to own a weapon; indeed, the Court does not disturb the conclusion that flows directly from our prior holdings that the burden on police officers would be permissible if a similar burden were also imposed on private parties with access to relevant data. See New York, 505 U. S., at 160; Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). A structural problem that vanishes when the statute affects private individuals as well as public officials is not much of a structural problem. Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of inter governmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. As a general matter, Congress *962 has followed the sound policy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. Rather, the occasional exceptions confirm the wisdom of Justice Holmes' reminder that "the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931). IV Finally, the Court advises us that the "prior jurisprudence of this Court" is the most conclusive support for its position. Ante, at 925. That "prior jurisprudence" is New York v. United States.[26] The case involved the validity of a federal statute that provided the States with three types of incentives to encourage them to dispose of radioactive wastes generated within their borders. The Court held that the first two sets of incentives were authorized by affirmative grants of power to Congress, and therefore "not inconsistent with the Tenth Amendment." 505 U.S., at 173, 174. That holding, of course, sheds no doubt on the validity of the Brady Act. The third so-called "incentive" gave the States the option either of adopting regulations dictated by Congress or of taking title to and possession of the low level radioactive waste. The Court concluded that, because Congress had no power to compel the state governments to take title to the *963 waste, the "option" really amounted to a simple command to the States to enact and enforce a federal regulatory program. Id., at 176. The Court explained: "A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, `the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,' Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, at 288, an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution." Ibid. After noting that the "take title provision appears to be unique" because no other federal statute had offered "a state government no option other than that of implementing legislation enacted by Congress," the Court concluded that the provision was "inconsistent with the federal structure of our Government established by the Constitution." Id., at 177. Our statements, taken in context, clearly did not decide the question presented here, whether state executive officials—as opposed to state legislators—may in appropriate circumstances be enlisted to implement federal policy. The "take title" provision at issue in New York was beyond Congress' authority to enact because it was "in principle . . . no different than a congressionally compelled subsidy from state governments to radioactive waste producers," id., at 175, almost certainly a legislative Act. The majority relies upon dictum in New York to the effect that "[t]he Federal Government may not compel the States to enact or administer a federal regulatory program." Id., at 188 (emphasis added); see ante, at 933. But that language was wholly unnecessary to the decision of the case. It is,of course, beyond dispute that we are not bound by the dicta of our prior opinions. See, e. g., U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 24 (1994) (Scalia, J.) ("invoking our customary refusal to be bound by dicta"). To *964 the extent that it has any substance at all, New York `s administration language may have referred to the possibility that the State might have been able to take title to and devise an elaborate scheme for the management of the radioactive waste through purely executive policy making. But despite the majority's effort to suggest that similar activities are required by the Brady Act, see ante, at 927-928, it is hard to characterize the minimal requirement that CLEO's perform background checks as one involving the exercise of substantial policy making discretion on that essentially legislative scale.[27] Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New York applies to these cases as well: "This is not a case where the etiquette of federalism has been violated by a formal command from the National *965 Government directing the State to enact a certain policy, cf. New York v. United States, 505 U.S. 144 (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi, 456 U. S., at 781, (O'Connor, J., concurring in judgment in part and dissenting in part)." Lopez, 514 U. S., at 583 (concurring opinion). In response to this dissent, the majority asserts that the difference between a federal command addressed to individuals and one addressed to the State itself "cannot be a constitutionally significant one." Ante, at 930. But as I have already noted, n. 16, supra, there is abundant authority in our Eleventh Amendment jurisprudence recognizing a constitutional distinction between local government officials, such as the CLEO's who brought this action, and state entities that are entitled to sovereign immunity. To my knowledge, no one has previously thought that the distinction "disembowels," ante, at 931, the Eleventh Amendment.[28] Importantly, the majority either misconstrues or ignores three cases that are more directly on point. In FERC v. Mississippi, 456 U.S. 742 (1982), we upheld a federal statute requiring state utilities commissions, inter alia, to take the affirmative step of considering federal energy standards in a manner complying with federally specified notice and comment procedures, and to report back to Congress periodically. The state commissions could avoid this obligation *966 only by ceasing regulation in the field, a "choice" that we recognized was realistically foreclosed, since Congress had put forward no alternative regulatory scheme to govern this very important area. Id., at 764, 766, 770. The burden on state officials that we approved in FERC was far more extensive than the minimal, temporary imposition posed by the Brady Act.[29] Similarly, in Puerto Rico v. Branstad, 483 U.S. 219 (1987), we overruled our earlier decision in Kentucky v. Dennison, 24 How. 66 (1861), and held that the Extradition Act of 1793 permitted the Commonwealth of Puerto Rico to seek extradition of a fugitive from its laws without constitutional barrier. The Extradition Act, as the majority properly concedes, plainly imposes duties on state executive officers. See ante, at 908-909. The majority suggests that this statute is nevertheless of little importance because it simply constitutes an implementation of the authority granted the National Government by the Constitution's Extradition Clause, Art. IV, § 2. But in Branstad we noted ambiguity as to whether Puerto Rico benefits from that Clause, which applies on its face only to "States." Avoiding the question of the Clause's applicability, we held simply that under the Extradition Act Puerto Rico had the power to request that the State of Iowa deliver up the fugitive the Commonwealth sought. 483 U.S., at 229-230. Although Branstad relied on the authority of the Act alone, without the benefit of the *967 Extradition Clause, we noted no barrier to our decision in the principles of federalism—despite the fact that one Member of the Court brought the issue to our attention, see id., at 231 (Scalia, J., concurring in part and concurring in judgment).[30] Finally, the majority provides an incomplete explanation of our decision in Testa v. Katt, 330 U.S. 386 (1947), and demeans its importance. In that case the Court unanimously held that state courts of appropriate jurisdiction must occupy themselves adjudicating claims brought by private litigants under the federal Emergency Price Control Act of 1942, regardless of how otherwise crowded their dockets might be with state-law matters. That is a much greater imposition on state sovereignty than the Court's characterization of the case as merely holding that "state courts cannot refuse to apply federal law," ante, at 928. That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain. *968 The language drawn from the Supremacy Clause upon which the majority relies ("the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding"), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the "Laws of the United States . . . [are] the supreme Law of the Land," state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so. Art. VI, cl. 2. Hence, the Court's textual argument is quite misguided. The majority focuses on the Clause's specific attention to the point that "Judges in every State shall be bound." Ibid. That language commands state judges to "apply federal law" in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers' Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the reference to judges.[31] *969 The majority's reinterpretation of Testa also contradicts our decision in FERC. In addition to the holding mentioned earlier, see supra, at 965-966, we also approved in that case provisions of federal law requiring a state utilities commission to "adjudicate disputes arising under [a federal] statute." FERC, 456 U. S., at 760. Because the state commission had "jurisdiction to entertain claims analogous to those" put before it under the federal statute, ibid., we held that Testa required it to adjudicate the federal claims. Although the commission was serving an adjudicative function, the commissioners were unquestionably not "judges" within the meaning of Art. VI, cl. 2. It is impossible to reconcile the Court's present view that Testa rested entirely on the specific reference to state judges in the Supremacy Clause with our extension of that early case in FERC.[32] Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court's implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to "press *970 state judges into federal service" against their will but would have regarded the imposition of a similar—indeed, far lesser— burden on town constables as an intolerable affront to principles of state sovereignty can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so.[33] * * * The provision of the Brady Act that crosses the Court's newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the Crime Control Center of the Department of Justice than to an offensive federal command to a sovereign State. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power. Accordingly, I respectfully dissent.

When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion is firmly supported by the text of the Constitution, the early history of the Nation, decisions of this Court, and a correct understanding of the basic structure of the Federal Government. These cases do not implicate the more difficult questions associated with congressional coercion of state legislatures addressed in New Nor need we consider the wisdom of relying on local officials rather than federal agents to carry out aspects of a federal program, or even the question whether such officials may be required to perform a federal function on a permanent basis. The question is whether Congress, acting on behalf of the people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed for the development of a federal gun control program. It is remarkably similar to the question, heavily debated by the Framers of the Constitution, whether Congress could require state agents to collect federal taxes. Or the question *940 whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore. Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the Tenth Amendment, "in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court," ante, at 905, that forbids the enlistment of state officers to make that response effective? More narrowly, what basis is there in any of those sources for concluding that it is the Members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today? Perhaps today's majority would suggest that no such emergency is presented by the facts of these cases. But such a suggestion is itself an expression of a policy judgment. And Congress' view of the matter is quite different from that implied by the Court today. The Brady Act was passed in response to what Congress described as an "epidemic of gun violence." H. R. Rep. No. 103-344, p. 8 (1993). The Act's legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Congress expressed special concern that "[t]he level of firearm violence in this country is, by far, the highest among developed nations." The partial solution contained in the Brady Act, a mandatory background check before a *941 handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70% of the rejected purchasers were convicted or indicted felons. See U. S. Dept. of Justice, Bureau of Justice Statistics Bulletin, A National Estimate: Presale Firearm Checks 1 (Feb. 1997). Whether or not the evaluation reflected in the enactment of the Brady Act is correct as to the extent of the danger and the efficacy of the legislation, the congressional decision surely warrants more respect than it is accorded in today's unprecedented decision. I The text of the Constitution provides a sufficient basis for a correct disposition of these cases. Article I, 8, grants Congress the power to regulate commerce among the Putting to one side the revisionist views expressed by Justice Thomas in his concurring opinion in United there can be no question that that provision adequately supports the regulation of commerce in handguns effected by the Brady Act. Moreover, the additional grant of authority in that section of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" is surely adequate to support the temporary enlistment of local police officers in the process of identifying persons who should not be entrusted with the possession of handguns. In short, the affirmative delegation of power in Article I provides ample authority for the congressional enactment. Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers. Using language *942 that plainly refers only to powers that are "not " delegated to Congress, it provides: "The powers not delegated to the United by the Constitution, nor prohibited by it to the are reserved to the respectively, or to the people." U. S. Const., Amdt. 10. The Amendment confirms the principle that the powers of the Federal Government are limited to those affirmatively granted by the Constitution, but it does not purport to limit the scope or the effectiveness of the exercise of powers that are delegated to Congress.[1] See New Thus, the Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens.[2] Indeed, it would be more reasonable to infer *943 that federal law may impose greater duties on state officials than on private citizens because another provision of the Constitution requires that "all executive and judicial Officers, both of the United and of the several shall be bound by Oath or Affirmation, to support this Constitution." Art. VI, cl. 3. It is appropriate for state officials to make an oath or affirmation to support the Federal Constitution because, as explained in The Federalist, they "have an essential agency in giving effect to the federal Constitution." The Federalist No. 44, p. 312 (J. Madison).[3] There can be no conflict between their duties to the State and those owed to the Federal Government because Article VI unambiguously provides that federal law "shall be the supreme Law of the Land," binding in every State. U. S. Const., Art. *944 VI, cl. 2. Thus, not only the Constitution, but every law enacted by Congress as well, establishes policy for the just as firmly as do laws enacted by state legislatures. The reasoning in our unanimous opinion explaining why state tribunals with ordinary jurisdiction over tort litigation can be required to hear cases arising under the Federal Employers' Liability Act applies equally to local law enforcement officers whose ordinary duties parallel the modest obligations imposed by the Brady Act: "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State. As was said by this court in 137: "`The laws of the United are laws in the several and just as much binding on the citizens and courts thereof as the State laws are. The United is not a foreign sovereignty as regards the several but is a concurrent, and, within its jurisdiction, paramount sovereignty.' " Second Employers' Liabil- ity Cases, See also There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I. *945 II Under the Articles of Confederation the National Government had the power to issue commands to the several sovereign but it had no authority to govern individuals directly. Thus, it raised an army and financed its operations by issuing requisitions to the constituent members of the Confederacy, rather than by creating federal agencies to draft soldiers or to impose taxes. That method of governing proved to be unacceptable, not because it demeaned the sovereign character of the several but rather because it was cumbersome and inefficient. Indeed, a confederation that allows each of its members to determine the ways and means of complying with an overriding requisition is obviously more deferential to state sovereignty concerns than a national government that uses its own agents to impose its will directly on the citizenry. The basic change in the character of the government that the Framers conceived was designed to enhance the power of the National Government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens ("the only proper objects of government") was ineffective under the Articles of Confederation, Alexander Hamilton explained that "we must extend the authority of the Union to the persons of the citizens." The Federalist No. 15, at 101 Indeed, the historical materials strongly suggest that the founders intended to enhance the capacity of the Federal Government by empowering it—as a part of the new authority to make demands directly on individual citizens—to act through local officials. Hamilton made clear that the new Constitution, "by extending the authority of the federal head to the individual citizens of the several will enable the government to employ the ordinary magistracy of each in the execution of its laws." The Federalist No. 27, at 180. Hamilton's meaning was unambiguous; the Federal Government was to have the power to demand that local officials *946 implement national policy programs. As he went on to explain: "It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which [the State and Federal Governments] might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State." [4] More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the Federal Government. Opponents of the Constitution had repeatedly expressed fears that the new Federal Government's ability to impose taxes directly on the citizenry would result in an overbearing presence of federal tax collectors in the[5] Federalists rejoined that this problem would not arise because, as Hamilton explained, "the United will make use of the State officers and State regulations for collecting" certain *947 taxes. No. 36, at 235. Similarly, Madison made clear that the new central Government's power to raise taxes directly from the citizenry would "not be resorted to, except for supplemental purposes of revenue and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers appointed by the several" No. 45, at 318.[6] The Court's response to this powerful historical evidence is weak. The majority suggests that "none of these statements necessarily implies Congress could impose these responsibilities without the consent of the" Ante, at 910-911 (emphasis deleted). No fair reading of these materials can justify such an interpretation. As Hamilton explained, the power of the Government to act on "individual citizens"—including "employ[ing] the ordinary magistracy" of the —was an answer to the problems faced by a central Government that could act only directly "upon the in their political or collective capacities." The Federalist, No. 27, at 179-180. The new Constitution would avoid this problem, resulting in "a regular and peaceable execution of the laws of the Union." This point is made especially clear in Hamilton's statement that "the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. " It is hard to imagine a more unequivocal statement that state *948 judicial and executive branch officials may be required to implement federal law where the National Government acts within the scope of its affirmative powers.[7] The Court makes two unpersuasive attempts to discount the force of this statement. First, according to the majority, because Hamilton mentioned the Supremacy Clause without specifically referring to any "congressional directive," the statement does not mean what it plainly says. Ante, at 912. But the mere fact that the Supremacy Clause is the source of the obligation of state officials to implement congressional directives does not remotely suggest that they might be "`incorporat[ed] into the operations of the national government,' " The Federalist No. 27, (A. Hamilton), before their obligations have been defined by Congress. Federal law establishes policy for the just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law.[8] Second, the majority suggests that interpreting this passage to mean what it says would conflict with our decision in New Ante, at 912. But since the New opinion did not mention The Federalist No. 27, it does not affect either the relevance or the weight of the historical evidence provided by No. 27 insofar as it relates to state courts and magistrates. Bereft of support in the history of the founding, the Court rests its conclusion on the claim that there is little evidence the National Government actually exercised such a power in *949 the early years of the Republic. See ante, at 907-908. This reasoning is misguided in principle and in fact. While we have indicated that the express consideration and resolution of difficult constitutional issues by the First Congress in particular "provides `contemporaneous and weighty evidence' of the Constitution's meaning since many of [its] Members `had taken part in framing that instrument,' " we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O'Connor quite properly noted in New "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." 505 U.S., at 1. More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, see ante, at 905-909, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority's description of these early statutes is both incomplete and at times misleading. For example, statutes of the early Congresses required in mandatory terms that state judges and their clerks perform various executive duties with respect to applications for citizenship. The First Congress enacted a statute requiring that the state courts consider such applications, specifying that the state courts "shall administer" an oath of loyalty to the United and that "the clerk of such court shall record such application." Act of Mar. 26, 1, ch. 3, 1, Early legislation passed by the Fifth Congress also imposed reporting requirements relating to naturalization on court clerks, specifying that failure to perform those duties would result in a fine. Act of June 18, *950 1798, ch. 54, 2, (specifying that these obligations "shall be the duty of the clerk" ). Not long thereafter, the Seventh Congress mandated that state courts maintain a registry of aliens seeking naturalization. Court clerks were required to receive certain information from aliens, record those data, and provide certificates to the aliens; the statute specified fees to be received by local officials in compensation. Act of Apr. 14, 1802, ch. 28, 2, — 155 (specifying that these burdens "shall be the duty of such clerk" including clerks "of a state" ).[9] Similarly, the First Congress enacted legislation requiring state courts to serve, functionally, like contemporary regulatory *951 agencies in certifying the seaworthiness of vessels. Act of July 20, 1, ch. 29, 3, -133. The majority casts this as an adjudicative duty, ante, at 907, but that characterization is misleading. The law provided that upon a complaint raised by a ship's crew members, the state courts were (if no federal court was proximately located) to appoint an investigative committee of three persons "most skilful in maritime affairs" to report back. On this basis, the judge was to determine whether the ship was fit for its intended voyage. The statute sets forth, in essence, procedures for an expert inquisitorial proceeding, supervised by a judge but otherwise more characteristic of executive activity.[10] The Court assumes that the imposition of such essentially executive duties on state judges and their clerks sheds no light on the question whether executive officials might have an immunity from federal obligations. Even assuming that the enlistment of state judges in their judicial role for federal purposes is irrelevant to the question whether executive officials may be asked to perform the same function—a claim disputed below, see infra, at 968-970—the majority's analysis is badly mistaken. We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual. As one scholar has noted, "two centuries ago, state and local judges and associated judicial personnel *952 performed many of the functions today performed by executive officers, including such varied tasks as laying city streets and ensuring the seaworthiness of vessels." Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, And, of course, judges today continue to perform a variety of functions that may more properly be described as executive. See, e. g., The majority's insistence that this evidence of federal enlistment of state officials to serve executive functions is irrelevant simply because the assistance of "judges" was at issue rests on empty formalistic reasoning of the highest order.[11] The Court's evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between *953 policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution.[12] Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, ch. 15, 6, -81, surely indicates that the National Legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully "request[ing]" state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress' power to use mandatory language if necessary.[13] If there were merit to the Court's appraisal of this incident, one would assume that there would have been some contemporary comment on the supposed constitutional concern that hypothetically might have motivated the President's choice of language.[14] *954 The Court concludes its review of the historical materials with a reference to the fact that our decision in invalidated a large number of statutes enacted in the 1970's, implying that recent enactments by Congress that are similar to the Brady Act are not entitled to any presumption of validity. But in Chadha, unlike these cases, our decision rested on the Constitution's express bicameralism and presentment requirements, not on judicial inferences drawn from a silent text and a historical record that surely favors the congressional understanding. Indeed, the majority's opinion consists almost entirely of arguments against the substantial evidence weighing in opposition to its view; the Court's ruling is strikingly lacking in affirmative support. Absent even a modicum of textual foundation for its judicially crafted constitutional rule, there should be a presumption that if the Framers had actually intended such a rule, at least one of them would have mentioned it.[15] *955 III The Court's "structural" arguments are not sufficient to rebut that presumption. The fact that the Framers intended to preserve the sovereignty of the several simply does not speak to the question whether individual state employees may be required to perform federal obligations, such as registering young adults for the draft, -81, creating state emergency response commissions designed to manage the release of hazardous substances, 42 U.S. C. 11001, 11003, collecting and reporting data on underground storage tanks that may pose an environmental hazard, 6991a, and reporting traffic fatalities, 23 U.S. C. 402(a), and missing children, 42 U.S. C. 79(a), to a federal agency.[] *956 As we explained in : "[T]he principal means chosen by the Framers to ensure the role of the in the federal system lies in the structure of the Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the from overreaching by Congress." Given the fact that the Members of Congress are elected by the people of the several with each State receiving an equivalent number of Senators in order to ensure that even the smallest have a powerful voice in the Legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the will benefit therefrom. Indeed, the presumption of validity that supports all congressional enactments[17] has added force with respect to policy *9 judgments concerning the impact of a federal statute upon the respective The majority points to nothing suggesting that the political safeguards of federalism identified in Garcia need be supplemented by a rule, grounded in neither constitutional history nor text, flatly prohibiting the National Government from enlisting state and local officials in the implementation of federal law. Recent developments demonstrate that the political safeguards protecting Our Federalism are effective. The majority expresses special concern that were its rule not adopted the Federal Government would be able to avail itself of the services of state government officials "at no cost to itself." Ante, at 922; see also ante, at 930 (arguing that "Members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes"). But this specific problem of federal actions that have the effect of imposing so-called "unfunded mandates" on the has been identified and meaningfully addressed by Congress in recent legislation.[18] See Unfunded *958 Mandates Reform Act of 1995, Stat. 48. The statute was designed "to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State governments without adequate Federal funding, in a manner that may displace other essential State. governmental priorities." 2 U.S. C. 1(2) (1994 ed., Supp. II). It functions, inter alia, by permitting Members of Congress to raise an objection by point of order to a pending bill that contains an "unfunded mandate," as defined by the statute, of over $50 million.[19] The mandate may not then be enacted unless the Members make an explicit decision to proceed anyway. See Recent Legislation, Unfunded Mandates Reform Act of 1995, Whatever the ultimate impact of the new legislation, its passage demonstrates that *959 unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances.[20] Perversely, the majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government's ability to rely on the magistracy of the See, e. g., The Federalist No. 36, at 234-235 (A. Hamilton); No. 45, at 318 (J. Madison).[21] With colorful hyperbole, the Court suggests that the unity in the Executive Branch of the Federal Government "would be shattered, and the power of the President would be subject *960 to reduction, if Congress could requir[e] state officers to execute its laws." Ante, at 923. Putting to one side the obvious tension between the majority's claim that impressing state police officers will unduly tip the balance of power in favor of the federal sovereign and this suggestion that it will emasculate the Presidency, the Court's reasoning contradicts New[22] That decision squarely approved of cooperative federalism programs, designed at the national level but implemented principally by state governments. New disapproved of a particular method of putting such programs into place, not the existence of federal programs implemented locally. See Indeed, nothing in the majority's holding calls into question the three mechanisms for constructing such programs that New expressly approved. Congress may require the to implement its programs as a condition of federal spending,[23] in order to avoid the threat of unilateral federal action in the area,[] or as a part of a program that affects and private parties alike.[25] The majority's suggestion in response to this dissent that Congress' ability to create such programs is limited, ante, at 923, n. 12, is belied by the importance and sweep of the federal statutes that meet this description, some of which we described in New See * -8 Nor is there force to the assumption under girding the Court's entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule making, is at issue, it may be appropriate for Congress either to pre-empt the State's lawmaking power and fashion the federal rule itself, or to respect the State's power to fashion its own rules. But these cases, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involve the imposition of modest duties on individual officers. The Court seems to accept the fact that Congress could require private persons, such as hospital executives or school administrators, to provide arms merchants with relevant information about a prospective purchaser's fitness to own a weapon; indeed, the Court does not disturb the conclusion that flows directly from our prior holdings that the burden on police officers would be permissible if a similar burden were also imposed on private parties with access to relevant data. See New ; A structural problem that vanishes when the statute affects private individuals as well as public officials is not much of a structural problem. Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of inter governmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. As a general matter, Congress *962 has followed the sound policy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. Rather, the occasional exceptions confirm the wisdom of Justice Holmes' reminder that "the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of IV Finally, the Court advises us that the "prior jurisprudence of this Court" is the most conclusive support for its position. Ante, at 925. That "prior jurisprudence" is New[26] The case involved the validity of a federal statute that provided the with three types of incentives to encourage them to dispose of radioactive wastes generated within their borders. The Court held that the first two sets of incentives were authorized by affirmative grants of power to Congress, and therefore "not inconsistent with the Tenth Amendment." 174. That holding, of course, sheds no doubt on the validity of the Brady Act. The third so-called "incentive" gave the the option either of adopting regulations dictated by Congress or of taking title to and possession of the low level radioactive waste. The Court concluded that, because Congress had no power to compel the state governments to take title to the *963 waste, the "option" really amounted to a simple command to the to enact and enforce a federal regulatory program. The Court explained: "A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, `the Act commandeers the legislative processes of the by directly compelling them to enact and enforce a federal regulatory program,' Hodel v. Virginia Surface Mining & Reclamation Assn., an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution." After noting that the "take title provision appears to be unique" because no other federal statute had offered "a state government no option other than that of implementing legislation enacted by Congress," the Court concluded that the provision was "inconsistent with the federal structure of our Government established by the Constitution." Our statements, taken in context, clearly did not decide the question presented here, whether state executive officials—as opposed to state legislators—may in appropriate circumstances be enlisted to implement federal policy. The "take title" provision at issue in New was beyond Congress' authority to enact because it was "in principle no different than a congressionally compelled subsidy from state governments to radioactive waste producers," almost certainly a legislative Act. The majority relies upon dictum in New to the effect that "[t]he Federal Government may not compel the to enact or administer a federal regulatory program." ; see ante, at 933. But that language was wholly unnecessary to the decision of the case. It is,of course, beyond dispute that we are not bound by the dicta of our prior opinions. See, e. g., U. S. Bancorp Mortgage ("invoking our customary refusal to be bound by dicta"). To *964 the extent that it has any substance at all, New `s administration language may have referred to the possibility that the State might have been able to take title to and devise an elaborate scheme for the management of the radioactive waste through purely executive policy making. But despite the majority's effort to suggest that similar activities are required by the Brady Act, see ante, at 927-928, it is hard to characterize the minimal requirement that CLEO's perform background checks as one involving the exercise of substantial policy making discretion on that essentially legislative scale.[27] Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New applies to these cases as well: "This is not a case where the etiquette of federalism has been violated by a formal command from the National *965 Government directing the State to enact a certain policy, cf. New or to organize its governmental functions in a certain way, cf. v. (O'Connor, J., concurring in judgment in part and dissenting in part)." In response to this dissent, the majority asserts that the difference between a federal command addressed to individuals and one addressed to the State itself "cannot be a constitutionally significant one." Ante, at 930. But as I have already noted, n. there is abundant authority in our Eleventh Amendment jurisprudence recognizing a constitutional distinction between local government officials, such as the CLEO's who brought this action, and state entities that are entitled to sovereign immunity. To my knowledge, no one has previously thought that the distinction "disembowels," ante, at 931, the Eleventh Amendment.[28] Importantly, the majority either misconstrues or ignores three cases that are more directly on point. In v. we upheld a federal statute requiring state utilities commissions, inter alia, to take the affirmative step of considering federal energy standards in a manner complying with federally specified notice and comment procedures, and to report back to Congress periodically. The state commissions could avoid this obligation *966 only by ceasing regulation in the field, a "choice" that we recognized was realistically foreclosed, since Congress had put forward no alternative regulatory scheme to govern this very important area. The burden on state officials that we approved in was far more extensive than the minimal, temporary imposition posed by the Brady Act.[29] Similarly, in Puerto we overruled our earlier decision in How. 66 and held that the Extradition Act of 1793 permitted the Commonwealth of Puerto Rico to seek extradition of a fugitive from its laws without constitutional barrier. The Extradition Act, as the majority properly concedes, plainly imposes duties on state executive officers. See ante, at 908-909. The majority suggests that this statute is nevertheless of little importance because it simply constitutes an implementation of the authority granted the National Government by the Constitution's Extradition Clause, Art. IV, 2. But in Branstad we noted ambiguity as to whether Puerto Rico benefits from that Clause, which applies on its face only to "." Avoiding the question of the Clause's applicability, we held simply that under the Extradition Act Puerto Rico had the power to request that the State of Iowa deliver up the fugitive the Commonwealth -230. Although Branstad relied on the authority of the Act alone, without the benefit of the *967 Extradition Clause, we noted no barrier to our decision in the principles of federalism—despite the fact that one Member of the Court brought the issue to our attention, see[30] Finally, the majority provides an incomplete explanation of our decision in and demeans its importance. In that case the Court unanimously held that state courts of appropriate jurisdiction must occupy themselves adjudicating claims brought by private litigants under the federal Emergency Price Control Act of 1942, regardless of how otherwise crowded their dockets might be with state-law matters. That is a much greater imposition on state sovereignty than the Court's characterization of the case as merely holding that "state courts cannot refuse to apply federal law," ante, at 928. That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain. *968 The language drawn from the Supremacy Clause upon which the majority relies ("the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding"), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the "Laws of the United [are] the supreme Law of the Land," state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so. Art. VI, cl. 2. Hence, the Court's textual argument is quite misguided. The majority focuses on the Clause's specific attention to the point that "Judges in every State shall be bound." That language commands state judges to "apply federal law" in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers' Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the reference to judges.[31] *969 The majority's reinterpretation of Testa also contradicts our decision in In addition to the holding mentioned earlier, see we also approved in that case provisions of federal law requiring a state utilities commission to "adjudicate disputes arising under [a federal] statute." Because the state commission had "jurisdiction to entertain claims analogous to those" put before it under the federal statute, ib we held that Testa required it to adjudicate the federal claims. Although the commission was serving an adjudicative function, the commissioners were unquestionably not "judges" within the meaning of Art. VI, cl. 2. It is impossible to reconcile the Court's present view that Testa rested entirely on the specific reference to state judges in the Supremacy Clause with our extension of that early case in[32] Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court's implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to "press *970 state judges into federal service" against their will but would have regarded the imposition of a similar—indeed, far lesser— burden on town constables as an intolerable affront to principles of state sovereignty can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so.[33] * * * The provision of the Brady Act that crosses the Court's newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the Crime Control Center of the Department of Justice than to an offensive federal command to a sovereign State. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power. Accordingly, I respectfully dissent.

Justice Marshall

majority

JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of Nat. Automatic Sprinkler Industry Pension Fund

https://www.courtlistener.com/opinion/109778/jw-bateson-co-v-united-states-ex-rel-bd-of-trustees-of-nat-automatic/

https://www.courtlistener.com/api/rest/v3/clusters/109778/

1977-039

Under the Miller Act, 49 Stat. 793, as amended, 80 Stat. 1139, 40 U.S. C. § 270a et seq., a prime contractor on a federal construction project involving over $2,000 must post a payment bond to protect those who have a direct contractual relationship with either the prime contractor or a "subcontractor." The issue in this case is whether the term "subcontractor," as used in the Act, encompasses a firm that is technically a "sub-subcontractor." The material facts are not in dispute. Petitioner J. W. Bateson Co. entered into a contract with the United States for construction of an addition to a hospital and provided a payment bond signed by Bateson's president and by representatives of petitioner sureties. Bateson, the prime contractor, subcontracted with Pierce Associates for a portion of the original work, and Pierce in turn subcontracted with Colquitt Sprinkler Co. for the installation of a sprinkler system, one of the items specified in the contract between Bateson and the United States. Under a collective-bargaining agreement with respondent Road Sprinkler Fitters Local Union No. 669, Colquitt was obligated to pay over amounts withheld from employees' wages for union dues and vacation savings, and to contribute to the union's welfare, pension, and educational trust funds. When Colquitt failed to make any of these payments *588 by the end of the union members' employment with the firm, the union and respondent trustees notified Bateson of the amount that they claimed was due them under the payment bond and then filed suit against Bateson in the name of the United States. The District Court granted summary judgment for respondents, and the Court of Appeals for the District of Columbia Circuit affirmed, 179 U. S. App. D. C. 325, 551 F.2d 1284 (1977). The appellate court recognized that Colquitt, which had a contractual relationship with Pierce but not with Bateson, was "technically a sub-subcontractor," but it concluded nevertheless that Colquitt should be considered a "subcontractor" for purposes of payment bond recovery by its employees or their representatives. Id., at 327, 551 F.2d, at 1286.[1] Applying a functional test based on the "substantial[ity] and importan[ce]" of the relationship between Bateson and Colquitt, the court noted that Colquitt was performing on the jobsite "an integral and significant part of [Bateson's] contract" with the Government, that the work "was performed over a substantial period of time," that Bateson had access to Colquitt's payroll records, and that Bateson could have protected itself "through bond or otherwise" against Colquitt's default. Ibid., 551 F. 2d, at 1286. We granted certiorari, 433 U.S. 907 (1977), to resolve a conflict between the decision below and the holdings of at least three other Circuits.[2] We now reverse. *589 Like the predecessor Heard Act, Act of Aug. 13, 1894, ch. 280, 28 Stat. 278, as amended, Act of Feb. 24, 1905, 33 Stat. 811, the Miller Act was designed to provide an alternative remedy to the mechanics' liens ordinarily available on private construction projects. F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 122 (1974). Because "a lien cannot attach to Government property," persons supplying labor or materials on a federal construction project were to be protected by a payment bond. Id., at 121-122. The scope of the Miller Act's protection is limited, however, by a proviso in § 2 (a) of the Act that "had no counterpart in the Heard Act." Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107 (1944). This proviso has the effect of requiring that persons who lack a "contractual relationship express or implied with the [prime] contractor" show a "direct contractual relationship with a subcontractor" in order to recover on the bond. 40 U.S. C. § 270b (a);[3] see F. D. Rich Co. v. United States ex rel. *590 Industrial Lumber Co., supra, at 122; Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., supra, at 107-108. In the instant case it is conceded that Colquitt's employees enjoyed no contractual relationship, "express or implied," with Bateson, and that they did have a "direct contractual relationship" with Colquitt. The question before us, then, is whether Colquitt can be considered a "subcontractor." As we observed in Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., supra, Congress used the word "subcontractor" in the Miller Act in accordance with "usage in the building trades." 322 U.S., at 108-109; see id., at 110. In the building trades, "a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract . . . ." Id., at 109 (emphasis added). It thus appears that a contract with a prime contractor is a prerequisite to being a "subcontractor."[4] *591 This interpretation of the Act's language is confirmed by the legislative history, which leaves no room for doubt about Congress' intent. While relatively brief, the authoritative Committee Reports of both the House of Representatives and the Senate squarely focus on the question at issue here: "A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond." H. R. Rep. No. 1263, 74th Cong., 1st Sess., 3 (1935); S. Rep. No. 1238, 74th Cong., 1st Sess., 2 (1935). This passage indicates both that Congress understood the difference between "sub-subcontractors" like Colquitt and "subcontractors" like Pierce, and that it intended the scope of protection of a payment bond to extend no further than to sub-subcontractors. See MacEvoy, 322 U. S., at 107-108, and n. 5. There is nothing to the contrary anywhere in the legislative history. Thus, while Colquitt could have claimed *592 against the payment bond had Pierce defaulted in its obligations, the employees of Colquitt were not similarly protected against Colquitt's default, because they did not have a contractual relationship with Pierce or any other "subcontractor."[5] This view of what was intended in the Miller Act is reinforced by the fact that all reported decisions that have considered the question, except that of the court below and one early District Court decision, have reached the same conclusion.[6] Presumably aware of this well-settled body of law *593 dating back almost 20 years, Congress has never moved to modify the Act's coverage. As a result, all of those concerned with Government projects—prime contractors, sureties, various levels of subcontractors and their employees—have been led to assume that the employees of a sub-subcontractor would not be protected by the Miller Act payment bond and to order their affairs accordingly.[7] In the absence of some clear indication to the contrary, we should not defeat these reasonable expectations, particularly in view of the importance of certainty with regard to bonding practices on Government construction projects. See generally MacEvoy, supra, at 110-111. In reaching a result contrary to that of other Courts of Appeals, the court below did not address itself either to the legislative history quoted above or to the conflict among the Circuits that its ruling created. Instead, it focused primarily on the substantiality and importance of the relationship between Colquitt and Bateson, see supra, at 588, relying for this approach on our decisions in MacEvoy and F. D. Rich Co. v. United States ex rel. Industrial Lumber Co. While those cases did involve the scope of the term "subcontractor" in the § 2 (a) proviso, they arose in situations in which the *594 firm at issue, unlike Colquitt, had a direct contractual relationship with the prime contractor. The question in both cases was whether a supplier of materials to the prime contractor could be considered a "subcontractor,"[8] and on this question an absence of dispositive statutory language and legislative history led the Court ultimately to look to "functional" considerations. 417 U.S., at 123-124; see 322 U.S., at 110-111. In the instant case, by contrast, the traditional tools of statutory construction provide a definitive answer to the question before us, and hence it would be inappropriate to utilize the approach relied on by the Court of Appeals. In concluding that the word "subcontractor" must be limited in meaning to one who contracts with a prime contractor, we are not unmindful of our obligation to construe the "highly remedial" Miller Act "liberal[ly] . . . in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects." MacEvoy, supra, at 107. As we wrote in MacEvoy, however, "such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds. . . . [W]e cannot disregard the limitations on liability which Congress intended to impose and did impose in the proviso of § 2 (a)." 322 U.S., at 107. It was Congress that drew a line between sub-subcontractors and those in "more remote relationships" to the prime contractor. H. R. Rep. No. 1263, supra, at 3; S. Rep. No. 1238, supra, at 2; MacEvoy, supra, at 108; Rich, 417 U. S., at 122. If the scope of protection afforded by a Miller Act payment bond is to be extended, it is Congress that must make the change. *595 The judgment of the Court of Appeals is Reversed. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE STEVENS, with whom MR.

Under the Miller Act, as amended, 40 U.S. C. 270a et seq., a prime contractor on a federal construction project involving over $2,000 must post a payment bond to protect those who have a direct contractual relationship with either the prime contractor or a "subcontractor." The issue in this case is whether the term "subcontractor," as used in the Act, encompasses a firm that is technically a "sub-subcontractor." The material facts are not in dispute. Petitioner J. W. Bateson entered into a contract with the United States for construction of an addition to a hospital and provided a payment bond signed by Bateson's president and by representatives of petitioner sureties. Bateson, the prime contractor, subcontracted with Pierce Associates for a portion of the original work, and Pierce in turn subcontracted with Colquitt Sprinkler for the installation of a sprinkler system, one of the items specified in the contract between Bateson and the United States. Under a collective-bargaining agreement with respondent Road Sprinkler Fitters Local Union No. 669, Colquitt was obligated to pay over amounts withheld from employees' wages for union dues and vacation savings, and to contribute to the union's welfare, pension, and educational trust funds. When Colquitt failed to make any of these payments *588 by the end of the union members' employment with the firm, the union and respondent trustees notified Bateson of the amount that they claimed was due them under the payment bond and then filed suit against Bateson in the name of the United States. The District Court granted summary judgment for respondents, and the Court of Appeals for the District of Columbia Circuit affirmed, 179 U. S. App. D. C. 325, The appellate court recognized that Colquitt, which had a contractual relationship with Pierce but not with Bateson, was "technically a sub-subcontractor," but it concluded nevertheless that Colquitt should be considered a "subcontractor" for purposes of payment bond recovery by its employees or their representatives.[1] Applying a functional test based on the "substantial[ity] and importan[ce]" of the relationship between Bateson and Colquitt, the court noted that Colquitt was performing on the jobsite "an integral and significant part of [Bateson's] contract" with the Government, that the work "was performed over a substantial period of time," that Bateson had access to Colquitt's payroll records, and that Bateson could have protected itself "through bond or otherwise" against Colquitt's default. Ib 551 F. 2d, at 1286. We granted certiorari, to resolve a conflict between the decision below and the holdings of at least three other Circuits.[2] We now reverse. *589 Like the predecessor Heard Act, Act of Aug. 13, 1894, ch. 280, as amended, Act of Feb. 24, 1905, the Miller Act was designed to provide an alternative remedy to the mechanics' liens ordinarily available on private construction projects. F. D. Because "a lien cannot attach to Government property," persons supplying labor or materials on a federal construction project were to be protected by a payment bond. at 121-. The scope of the Miller Act's protection is limited, however, by a proviso in 2 (a) of the Act that "had no counterpart in the Heard Act." Clifford F. This proviso has the effect of requiring that persons who lack a "contractual relationship express or implied with the [prime] contractor" show a "direct contractual relationship with a subcontractor" in order to recover on the bond. 40 U.S. C. 270b (a);[3] see F. D. v. United States ex rel. *590 Industrial Lumber at ; Clifford F. at -108. In the instant case it is conceded that Colquitt's employees enjoyed no contractual relationship, "express or implied," with Bateson, and that they did have a "direct contractual relationship" with Colquitt. The question before us, then, is whether Colquitt can be considered a "subcontractor." As we observed in Clifford F. Congress used the word "subcontractor" in the Miller Act in accordance with "usage in the building trades." -109; see In the building trades, "a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract" It thus appears that a contract with a prime contractor is a prerequisite to being a "subcontractor."[4] *591 This interpretation of the Act's language is confirmed by the legislative history, which leaves no room for doubt about Congress' intent. While relatively brief, the authoritative Committee Reports of both the House of Representatives and the Senate squarely focus on the question at issue here: "A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond." H. R. Rep. No. 74th Cong., 1st Sess., 3 (1935); S. Rep. No. 74th Cong., 1st Sess., 2 (1935). This passage indicates both that Congress understood the difference between "sub-subcontractors" like Colquitt and "subcontractors" like Pierce, and that it intended the scope of protection of a payment bond to extend no further than to sub-subcontractors. See 322 U. S., at -108, and n. 5. There is nothing to the contrary anywhere in the legislative history. Thus, while Colquitt could have claimed *592 against the payment bond had Pierce defaulted in its obligations, the employees of Colquitt were not similarly protected against Colquitt's default, because they did not have a contractual relationship with Pierce or any other "subcontractor."[5] This view of what was intended in the Miller Act is reinforced by the fact that all reported decisions that have considered the question, except that of the court below and one early District Court decision, have reached the same conclusion.[6] Presumably aware of this well-settled body of law *593 dating back almost 20 years, Congress has never moved to modify the Act's coverage. As a result, all of those concerned with Government projects—prime contractors, sureties, various levels of subcontractors and their employees—have been led to assume that the employees of a sub-subcontractor would not be protected by the Miller Act payment bond and to order their affairs accordingly.[7] In the absence of some clear indication to the contrary, we should not defeat these reasonable expectations, particularly in view of the importance of certainty with regard to bonding practices on Government construction projects. See generally -111. In reaching a result contrary to that of other Courts of Appeals, the court below did not address itself either to the legislative history quoted above or to the conflict among the Circuits that its ruling created. Instead, it focused primarily on the substantiality and importance of the relationship between Colquitt and Bateson, see relying for this approach on our decisions in and F. D. While those cases did involve the scope of the term "subcontractor" in the 2 (a) proviso, they arose in situations in which the *594 firm at issue, unlike Colquitt, had a direct contractual relationship with the prime contractor. The question in both cases was whether a supplier of materials to the prime contractor could be considered a "subcontractor,"[8] and on this question an absence of dispositive statutory language and legislative history led the Court ultimately to look to "functional" considerations. -124; see 322 U.S., -111. In the instant case, by contrast, the traditional tools of statutory construction provide a definitive answer to the question before us, and hence it would be inappropriate to utilize the approach relied on by the Court of Appeals. In concluding that the word "subcontractor" must be limited in meaning to one who contracts with a prime contractor, we are not unmindful of our obligation to construe the "highly remedial" Miller Act "liberal[ly] in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects." at As we wrote in however, "such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds. [W]e cannot disregard the limitations on liability which Congress intended to impose and did impose in the proviso of 2 (a)." 322 U.S., at It was Congress that drew a line between sub-subcontractors and those in "more remote relationships" to the prime contractor. H. R. Rep. No. ; S. Rep. No. ; ; 417 U. S., at If the scope of protection afforded by a Miller Act payment bond is to be extended, it is Congress that must make the change. *595 The judgment of the Court of Appeals is Reversed. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE STEVENS, with whom MR.

Justice Brennan

dissenting

Time, Inc. v. Firestone

https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/

https://www.courtlistener.com/api/rest/v3/clusters/109388/

1975-041

In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding. I In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution.[1] Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (STEWART, J., concurring), must be measured and limited by constitutional constraints *472 assuring the maintenance and well-being of the system of free expression. Although "calculated false-hood" is no part of the expression protected by the central meaning of the First Amendment, Garrison v. Louisiana, 379 U.S. 64, 75 (1964), error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Times, supra, at 271-272. Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error—protecting some misstatements so that the "freedoms of expression . . . have the `breathing space' that they `need . . . to survive.' " Ibid. "[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. Amant v. Thompson, 390 U.S. 727, 732 (1968). For this reason, New York Times held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous statement. 376 U.S., at 279-280.[2] *473 Identical considerations led the Court last Term in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted: "[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government *474 generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . . ..... ". . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." 420 U.S., at 491-492, 495. Crucial to the holding in Cox Broadcasting was the determination that a "reasonable man" standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against "timidity and self-censorship" in reporting judicial proceedings. Id., at 496. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings. II It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). Rosenbloom had held the New York Times privilege applicable to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." 403 U.S., at 44. But in light of the Court's perception *475 of an altered balance between the conflicting values at stake where the person defamed is in some sense a "private individual," Gertz, supra, at 347, 349-350, held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of "fault" and proof of "actual injury" resulting from the claimed defamation.[3] 418 U. S., *476 at 349-350. However, the extension of the relaxed standard of Gertz to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of Gertz itself, is contrary to other well-established precedents of this Court and, most importantly, savages the cherished values encased in the First Amendment. There is no indication in Gertz of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that in instances of erroneous reporting of the public actions of public officials, the New York Times actual-malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although Gertz clearly altered the broader rationale of Rosenbloom, until the Court's decision today it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother WHITE'S concurring statement therein: "[I]n defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." 403 U.S., at 62.[4] At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation's judicial systems. There is simply no meaningful *477 or constitutionally adequate way to report such events without reference to those persons and transactions that form the subject matter in controversy.[5] This Court has long held: "A trial is a public event. What transpires in the court room is public property . . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it." Craig v. Harney, 331 U.S. 367, 374 (1947).[6] The Court has recognized that with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by "subjecting the . . . judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, "the more likely it is that in some aspect they will get into court." Bridges v. California, 314 U.S. 252, 268-269 (1941).[7] Indeed, slight *478 reflection is needed to observe the insistent and complex interaction between controversial judicial proceedings and popular impressions thereof and fundamental legal and political changes in the Nation throughout the 200 years of evolution of our political system. With the judiciary as with all other aspects of government, the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions that might in the alternative grow remote, insensitive, and finally acquisitive of those attributes of sovereignty not delegated by the Constitution.[8] Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen *479 who report it, the probability of inadvertent error may be substantially greater.[9] "There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. *480 "Some part of this is due to carelessness . . . . But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blame-worthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities. "In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule *481 can obtain. There must be some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government." Pennekamp v. Florida, 328 U.S. 331, 371-372 (1946) (Rutledge, J., concurring).[10] For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter "missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." Craig v. Harney, 331 U. S., at 375. See also Pennekamp v. Florida, supra. And "[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York Times, 376 U. S., at 277. The First Amendment insulates from defamation liability a margin for error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To be adequate, that margin must be both of sufficient breadth and predictable in its application. In my view, therefore, the actual-malice standard of New York Times must be met in order to justify the imposition of liability in these circumstances. MR.

In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding. I In a series of cases beginning with New York this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution.[1] Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, must be measured and limited by constitutional constraints *472 assuring the maintenance and well-being of the system of free expression. Although "calculated false-hood" is no part of the expression protected by the central meaning of the First Amendment, error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error—protecting some misstatements so that the "freedoms of expression have the `breathing space' that they `need to survive.' " "[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. For this reason, New York held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous -280.[2] *473 Identical considerations led the Court last Term in Cox Broadcasting (19), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York and its progeny, the Court in Cox Broadcasting noted: "[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government *474 generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. ". Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." -4, 495. Crucial to the holding in Cox Broadcasting was the determination that a "reasonable man" standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against "timidity and self-censorship" in reporting judicial proceedings. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings. II It is true, of course, that the Court in cut back on the scope of application of the New York privilege as it had evolved through the plurality opinion in Rosenbloom had held the New York privilege applicable to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." But in light of the Court's perception *4 of an altered balance between the conflicting values at stake where the person defamed is in some sense a "private individual," held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of "fault" and proof of "actual injury" resulting from the claimed defamation.[3] 418 U. S., *476 at 349-. However, the extension of the relaxed standard of to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of itself, is contrary to other well-established precedents of this Court and, most importantly, savages the cherished values encased in the First Amendment. There is no indication in of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that in instances of erroneous reporting of the public actions of public officials, the New York actual-malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although clearly altered the broader rationale of Rosenbloom, until the Court's decision today it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother WHITE'S concurring statement therein: "[I]n defamation actions, absent actual malice as defined in New York the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view."[4] At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation's judicial systems. There is simply no meaningful *477 or constitutionally adequate way to report such events without reference to those persons and transactions that form the subject matter in controversy.[5] This Court has long held: "A trial is a public event. What transpires in the court room is public property Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."[6] The Court has recognized that with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by "subjecting the judicial processes to extensive public scrutiny and criticism." And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, "the more likely it is that in some aspect they will get into court."[7] Indeed, slight *478 reflection is needed to observe the insistent and complex interaction between controversial judicial proceedings and popular impressions thereof and fundamental legal and political changes in the Nation throughout the 200 years of evolution of our political system. With the judiciary as with all other aspects of government, the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions that might in the alternative grow remote, insensitive, and finally acquisitive of those attributes of sovereignty not delegated by the Constitution.[8] Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen *479 who report it, the probability of inadvertent error may be substantially greater.[9] "There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. *480 "Some part of this is due to carelessness But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blame-worthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities. "In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule *481 can obtain. There must be some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government."[10] For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter "missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." 331 U. S., at 3. See also And "[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York The First Amendment insulates from defamation liability a margin for error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To be adequate, that margin must be both of sufficient breadth and predictable in its application. In my view, therefore, the actual-malice standard of New York must be met in order to justify the imposition of liability in these circumstances. MR.

Justice Souter

majority

Metropolitan Stevedore Co. v. Rambo

https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/

https://www.courtlistener.com/api/rest/v3/clusters/118130/

1996-077

This case under the Longshore and Harbor Workers' Compensation Act is before us a second time, now raising the question whether the Act bars nominal compensation to a worker who is presently able to earn at least as much as before he was injured. We hold nominal compensation proper when there is a significant possibility that the worker's wage-earning capacity will fall below the level of his preinjury wages sometime in the future. *124 I Respondent John Rambo injured his back and leg in 1980 while doing longshore work for petitioner Metropolitan Stevedore Company. Rambo claimed against Metropolitan for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U.S. C. § 901 et seq., and the parties stipulated that Rambo had sustained a 22[1]20442% permanent partial disability, which would normally reflect a $120.24 decline in his preinjury $534.38 weekly wage. This, in turn, was reduced to an award of $80.16 per week under § 8(c)(21) of the Act, 33 U.S. C. § 908(c)(21), providing for compensation at the rate of 66[2]20443% of the difference between an employee's preinjury wages and postinjury wage-earning capacity. An Administrative Law Judge (ALJ) entered an order incorporating this stipulated award. App. 51; Metropolitan Stevedore Co. v. Rambo (Rambo I), 515 U.S. 291, 293 (1995). Rambo was later trained as a longshore crane operator and got full-time work with his new skills, with occasional stints as a heavy-truck operator to earn extra pay. His resulting annual earnings between 1985 and 1990 were about three times what he had made before his injury. As a consequence, Metropolitan moved in 1989 to modify Rambo's earlier disability award, see § 22, 33 U.S. C. § 922, and a hearing was held before an ALJ. While there was no evidence that Rambo's physical condition had improved, the ALJ ordered the disability payments discontinued based on the tripling of Rambo's preinjury earnings: "After taking into consideration the increase in wages due to the rate of inflation and any increase in salary for the particular job, it is evident that [Rambo] no longer has a wage-earning capacity loss. Although [Rambo] testified that he might lose his job at some future time, the evidence shows that [Rambo] would not be at any *125 greater risk of losing his job than anyone else. Moreover, no evidence has been offered to show that [Rambo's] age, education, and vocational training are such that he would be at greater risk of losing his present job or in seeking new employment in the event that he should be required to do so. Likewise, the evidence does not show that [Rambo's] employer is a beneficent one. On the contrary, the evidence shows that [Rambo] is not only able to work full time as a crane operator, but that he is able to work as a heavy lift truck operator when the time is available within which to do so." App. 55. See also Rambo I, supra, at 293-294. The Benefits Review Board affirmed the modification order, App. 57, 61, but the Court of Appeals for the Ninth Circuit reversed on the ground that § 22 authorizes modification of an award only for changed physical conditions, Rambo v. Director, OWCP, 28 F.3d 86 (1994). We in turn reversed in Rambo I, holding that "[t]he fundamental purpose of the Act is to compensate employees (or their beneficiaries) for wage-earning capacity lost because of injury; where that wage-earning capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification." 515 U.S., at 298. Since the essence of wage-earning capacity is economic, not physical, id., at 296-298, that capacity may be affected "even without any change in the employee's physical condition," id., at 301. On remand, the Court of Appeals again reversed the order discontinuing compensation payments. It recognized that when a worker suffers a significant physical impairment without experiencing a present loss of earnings, there may be serious tension between the statutory mandate to account for future effects of disability in determining a claimant's wage-earning capacity (and thus entitlement to compensation), *126 see § 8(h), 33 U.S. C. § 908(h), and the statutory prohibition against issuing any new order to pay benefits more than one year after compensation ends or an order is entered denying an award, see § 22, 33 U.S. C. § 922. The Court of Appeals reconciled the two provisions by reading the statute to authorize a present nominal award subject to later modification if conditions should change. Rambo v. Director, OWCP, 81 F.3d 840, 844 (1996). The court reversed the order ending Rambo's benefits as unsupported by substantial evidence, due to "overemphasi[s on] Rambo's current status and fail[ure] to consider the effect of Rambo's permanent partial disability on his future earnings," ibid., and it remanded for entry of a nominal award reflecting Rambo's permanent partial disability, id., at 845.[1] We granted certiorari. 519 U.S. 1002 (1996). While we agree that nominal compensation may be awarded under certain circumstances despite the worker's present ability to earn more than his preinjury wage, we vacate the judgment of the Court of Appeals directing entry of such an award and remand for factfinding by the ALJ. II The LHWCA authorizes compensation not for physical injury as such, but for economic harm to the injured worker from decreased ability to earn wages. See Rambo I, supra, at 297-298. The Act speaks of this economic harm as "disability," defined as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment," § 2(10), 33 U.S. C. § 902(10). Such incapacity is conclusively presumed for certain enumerated or "scheduled" injuries, which are compensated at 66[2]20443% of the worker's preinjury wages over specified periods of time. See §§ 8(c)(1)—8(c)(20), 8(c)(22), 33 U.S. C. §§ 908(c)(1)—908(c)(20), 908(c)(22); Potomac Elec. Power Co. v. Director, Office of Workers' Compensation Pro- *127 grams, 449 U.S. 268, 269 (1980). For other, so-called "unscheduled" injuries resulting in less than total disability, the Act sets compensation at "66[2]20443 per centum of the difference between the average weekly [preinjury] wages of the employee and the employee's wage-earning capacity thereafter." § 8(c)(21), 33 U.S. C. § 908(c)(21) (permanent partial disability); see also § 8(e), 33 U.S. C. § 908(e) (temporary partial disability). For figuring this difference, § 8(h) explains that the claimant's postinjury "wage-earning capacity" is to be determined "by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Pro- vided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wageearning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future." § 8(h), 33 U.S. C. § 908(h). See also § 10, 33 U.S. C. § 910 (method for determining preinjury wages). See generally Rambo I, 515 U. S., at 297-298. We may summarize these provisions and their implications this way. Disability is a measure of earning capacity lost as a result of work-related injury. By distinguishing between the diminished capacity and the injury itself, and by defining capacity in relation both to the injured worker's old job and to other employment, the statute makes it clear that disability is the product of injury and opportunities in the job market. Capacity, and thus disability, is not necessarily reflected in actual wages earned after injury, see id., at 300-301; Potomac Elec. Power, supra, at 272, n. 5, and when *128 it is not, the factfinder under the Act must make a determination of disability that is "reasonable" and "in the interest of justice," and one that takes account of the disability's future effects, § 8(h). In some cases a disparity between the worker's actual postinjury wages and his job-market capacity will be obvious, along with the reasons for it. If a disabled worker with some present capacity chooses not to work at all, or to work at less than his capacity, a windfall is avoided by determining present disability and awarding a benefit accordingly. See, e. g., Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87-88 (CA5 1990). At the other extreme, a worker with some present disability may nonetheless be fortunate enough to receive not merely the market wages appropriate for his diminished capacity, but full preinjury wages (say, because an employer is generous, for whatever reason). See, e. g., Travelers Ins. Co. v. McLellan, 288 F.2d 250, 251 (CA2 1961); see also Edwards v. Director, OWCP, 999 F.2d 1374, 1375-1376 (CA9 1993) (holding that wages from short-lived employment do not represent actual earning capacity on open market). Once again, the present disability may still be calculated and a corresponding award made. A problem in applying the provisions applicable when there is a disparity between current wages and wageearning capacity arises in a case like this one, however. The worker now receives appropriate market wages as high or higher than those before his injury, thus experiencing no decline in present capacity. And yet (we assume for now) there is some particular likelihood that in the future the combination of injury and market conditions may leave him with a lower capacity. The question is whether such a person is presently disabled within the meaning of the statute, and if so, what provision should be made for the potential effects of disability in the future. There are two reasons to treat such a person as presently disabled under the statute. The first follows from the provision *129 of law that on its face bars an injured worker from waiting for adverse economic effects to occur in the future before bringing his disability claim, which generally must be filed within a year of injury. § 13(a), 33 U.S. C. § 913(a); Pillsbury v. United Engineering Co., 342 U.S. 197 (1952). He is also barred from seeking a new, modified award after one year from the date of any denial or termination of benefits. § 22, 33 U.S. C. § 922. Because an injured worker who has a basis to anticipate wage loss in the future resulting from a combination of his injury and job-market opportunities must nonetheless claim promptly, it is likely that Congress intended "disability" to include the injury-related potential for future wage loss.[2] And because a losing claimant loses for all time after one year from the denial or termination of benefits, it is equally likely that Congress intended such a claimant to obtain some award of benefits in anticipation of the future potential loss. *130 This conclusion is confirmed by the provision of § 8(h) that in cases of disparity between actual wages and earning capacity, the natural effects of disability that will occur in the future must be given "due regard" as one of the "factors or circumstances in the case which may affect [a claimant's] capacity to earn wages in his disabled condition." Although this mandate is phrased in general terms, its practical effect is limited to the class of cases at issue here, where the worker is presently able to earn at least as much as before his injury. In all other cases, when injury depresses the claimant's wage-earning capacity under the conditions prevailing at the time of an award, so that the present effects of his disability are unquestionably compensable immediately, the Act already makes provision for the future effects of disability by means of § 22, which liberally permits modification of awards in response to changed conditions that occur within one year of the last payment of compensation (or a denial or termination of benefits). 33 U.S. C. § 922. Rambo I held that this provision allows modification whenever a changed combination of training and economic (let alone physical) circumstances reduces, restores, or improves wage-earning capacity. 515 U.S., at 296-297.[3] Since ongoing awards may be modified if future possibilities become present realities, there is no need to account for such possibilities in calculating a worker's immediately compensable disability; the Act plainly takes a wait-and-see approach to future contingencies here.[4] The first award in this case was *131 a standard illustration of the proper practice of basing capacity determinations and compensation awards on present reality. If Rambo's initial award had already been discounted to reflect the odds of his obtaining less strenuous but higher paying work in the future, Rambo I could hardly have held that the Act permitted reduction of that initial award again when Rambo actually received training as a crane operator and found work using his new skills. The first award simply reflected the degree of diminished capacity operative at the time it was made, and it was proper to revise it when conditions changed. Thus, if § 8(h)'s admonition to consider future effects when calculating capacity has any practical application, it must be because it may apply in a case such as this one, in which there is no present wage loss and would thus be no present award if compensation were to be based solely on present employment conditions. If the future were ignored and compensation altogether denied whenever present earning capacity had not (yet) declined, § 22 would bar modification in response to future changes in condition after one year. *132 To implement the mandate of § 8(h) in this class of cases, then, "disability" must be read broadly enough to cover loss of capacity not just as a product of the worker's injury and present market conditions, but as a potential product of injury and market opportunities in the future. There must, in other words, be a cognizable category of disability that is potentially substantial, but presently nominal in character. There being, then, a need to account for potential future effects in a present determination of wage-earning capacity (and thus disability) when capacity does not immediately decline, the question is which of two basic methods to choose to do this. The first would be to make a one-time calculation of a periodic benefit following the approach of the common law of torts, which bases lump-sum awards for loss of future earnings on an estimate of "the difference . . . between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm." Restatement (Second) of Torts § 924, Comment d, p. 525 (1977). This predictive approach ordinarily requires consideration of every possible variable that could have an impact on ability to earn, including "[e]nvironmental factors such as the condition of the labor market, the chance of advancement or of being laid off, and the like." 4 F. Harper, F. James, & O. Gray, Law of Torts § 25.8, pp. 550-551 (2d ed. 1986) (footnote omitted). Prediction of future employment may well be the most troublesome step in this wide-ranging enquiry. As the tripling of Rambo's own earnings shows, a claimant's future ability to earn wages will vary as greatly as opportunity varies, and any estimate of wage-earning potential turns in part on the probabilities over time that suitable jobs within certain ranges of pay will actually be open. In these calculations, there is room for error.[5] Cf. id., § 25.8, at 553 *133 (to determine lost wage-earning capacity, juries must often "use their judgment (in effect, . . . speculate)"). That juries in tort cases must routinely engage in such difficult predictions (compounded further by discounting for present value) is the price paid by the common-law approach for the finality of a one-time lump-sum judgment. The second possible way to account for future developments would be to do in this situation just what the Act already does through the modification provision in the run of cases: to wait and see, that is, to base calculation of diminished wage-earning capacity, and thus compensation, on current realities and to permit modifications reflecting the actual effects of an employee's disability as manifested over time. This way, finality is exchanged for accuracy, both in compensating a worker for the actual economic effects of his injury, and in charging the employer and his insurer for that amount alone. Metropolitan denies that the second, wait-and-see alternative is even open, arguing that § 8(h) gives the factfinder only two choices: either deny compensation altogether because a claimant's actual wages have not diminished, or, if the ALJ concludes that the worker's current income does not fairly represent his present wage-earning capacity, calculate the *134 extent of the worker's disability (and his consequent entitlement to compensation) in toto based on all relevant factors, including the future effects of the disability. See Brief for Petitioner 9. What we have already said, however, shows the unsoundness of Metropolitan's two options. The practical effect of denying any compensation to a disabled claimant on the ground that he is presently able to earn as much as (or more than) before his injury would run afoul of the Act's mandate to account for the future effects of disability in fashioning an award, since those effects would not be reflected in the current award and the 1-year statute of limitations for modification after denial of compensation would foreclose responding to such effects on a wait-andsee basis as they might arise.[6] On the other hand, trying to honor that mandate by basing a present award on a comprehensive prediction of an inherently uncertain future would, as we have seen, almost always result in present overcompensation or under compensation. And it would be passing strange to credit Congress with the intent to guarantee fairness to employers and employees by a wait-and-see approach in most cases where future effects are imperfectly foreseeable, but to find no such intent in one class of cases, those in which wage-earning ability does not immediately decline.[7] *135 There is moreover an even more fundamental objection to Metropolitan's proposed options. They implicitly reject the very conclusion required to make sense of the combined provisions limiting claims and mandating consideration of future effects: that a disability whose substantial effects are only potential is nonetheless a present disability, albeit a presently nominal one. It is, indeed, this realization that points toward a way to employ the wait-and-see approach to provide for the future effects of disability when capacity does not immediately decline. It is simply "reasonable" and "in the interest of justice" (to use the language of § 8(h)) to reflect merely nominal current disability with a correspondingly nominal award. Ordering nominal compensation holds open the possibility of a modified award if a future conjunction of injury, training, and employment opportunity should later depress the worker's ability to earn wages below the preinjury level, turning the potential disability into an actual one. It allows full scope to the mandate to consider the future effects of disability, it promotes accuracy, it preserves administrative simplicity by obviating cumbersome enquiries relating to the entire range of possible future states of affairs,[8] and it avoids imputing to Congress the unlikely intent *136 to join a wait-and-see rule for most cases with a predict-thefuture method when the disability results in no current decline in what the worker can earn. Our view, as it turns out, coincides on this point with the position taken by the Director of the Office of Workers' Compensation Programs (OWCP), who is charged with the administration of the Act, and who also construes the Act as permitting nominal compensation as a mechanism for taking future effects of disability into account when present wageearning ability remains undiminished. See Brief for Director, Office of Workers' Compensation Programs 12-21, 24-31. The Secretary of Labor has delegated the bulk of her statutory authority to administer and enforce the Act, including rulemaking power, to the Director, see Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 125-126 (1995); Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, 519 U.S. 248, 262-263 (1997), and the Director's reasonable interpretation of the Act brings at least some added persuasive force to our conclusion, see, e. g., Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (giving weight to agency's persuasive interpretation, even when agency lacks "power to control"); Robinson v. Shell Oil Co., 519 U.S. 337, 345-346 (1997). There is, of course, the question of how high the potential for disability need be to be recognized as nominal, but that is an issue not addressed by the parties, and it would be imprudent of us to address it now with any pretense of settling it for all time. Here it is enough to recall that in those cases where an injury immediately depresses ability to earn wages under present conditions, the payment of actual compensation holds open the option of modification under § 22 even for future changes in condition whose probability of occurrence may well be remote at the time of the original award. Consistent application of the Act's wait-and-see approach thus suggests that nominal compensation permitting *137 future modification should not be limited to instances where a decline in capacity can be shown to a high degree of statistical likelihood. Those courts to have dealt with the matter explicitly have required a showing that there is a significant possibility that a worker's wage-earning capacity will at some future point fall below his preinjury wages, see Hole v. Miami Shipyards Corp., 640 F.2d 769, 772 (CA5 1981); Randall v. Comfort Control, Inc., 725 F.2d 791, 800 (CADC 1984), and, in the absence of rulemaking by the agency specifying how substantial the possibility of future decline in capacity must be to justify a nominal award, we adopt this standard.[9] *138 We therefore hold that a worker is entitled to nominal compensation when his work-related injury has not diminished his present wage-earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions. III The application of this legal standard to the case before us depends in part on how the burden of persuasion is allocated. Section 7(c) of the APA, 5 U.S. C. § 556(d), which applies to adjudications under the Act, see Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 270 (1994), places the burden of persuasion on the proponent of an order, id., at 272-281; when the evidence is evenly *139 balanced, the proponent loses, see id., at 281. On the initial claim for nominal compensation under the Act, then, the employee has the burden of showing by a preponderance of the evidence that he has been injured and that the odds are significant that his wage-earning capacity will fall below his preinjury wages at some point in the future. But when an employer seeks modification of previously awarded compensation, the employer is the proponent of the order with the burden of establishing a change in conditions justifying modification. In a case like this, where the prior award was based on a finding of economic harm resulting from an actual decline in wage-earning capacity at the time the award was entered, the employer satisfies this burden by showing that as a result of a change in capacity the employee's wages have risen to a level at or above his preinjury earnings. Once the employer makes this showing, § 8(h) gives rise to the presumption that the employee's wage-earning capacity is equal to his current, higher wage and, in the face of this presumption, the burden shifts back to the claimant to show that the likelihood of a future decline in capacity is sufficient for an award of nominal compensation. We emphasize that the probability of a future decline is a matter of proof; it is not to be assumed pro forma as an administrative convenience in the run of cases. In this case, the first award of compensation was based on the parties' stipulation that Rambo suffered 22 12% permanent partial disability as a result of his injury, whereby Rambo established that the injury impaired his ability to undertake at least some types of previously available gainful labor and thus prevented him from earning as much as he had before his accident. Metropolitan sought termination of the award based solely on evidence, which the ALJ found persuasive, that Rambo is now able to earn market wages as a crane operator significantly greater than his preinjury earnings. There is therefore substantial evidence in the record supporting the ALJ's decision to terminate actual (as *140 opposed to nominal) benefits, since under present conditions Rambo's capacity to earn wages is no longer depressed. But the ALJ failed to consider whether there is a significant possibility that Rambo's wage-earning capacity will decline again in the future.[10] Because there is no evidence in the record of the modification proceedings showing that Rambo's physical condition has improved to the point of full recovery, the parties' earlier stipulation of permanent partial disability at least raises the possibility that Rambo's ability to earn will decline in the event he loses his current employment as a crane operator. The ALJ's order altogether terminating benefits must therefore be vacated for failure to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. Since the ALJ is the factfinder under the Act, see §§ 21(b)(3), (c), 33 U.S. C. §§ 921(b)(3), (c), however, the Court of Appeals should have remanded to the agency for further findings of fact, see, e. g., Randall v. Comfort Control, Inc., 725 F. 2d, at 799-800 (remanding for consideration of nominal award), instead of directing entry of a nominal award based on its own appraisal of the evidence. We therefore vacate the Ninth Circuit's judgment insofar as it directs entry of an *141 award of nominal compensation, and remand the case for further proceedings consistent with this opinion. It is so ordered.

This case under the Longshore and Harbor Workers' Compensation Act is before us a second time, now raising the question whether the Act bars nominal compensation to a worker who is presently able to earn at least as much as before he was injured. We hold nominal compensation proper when there is a significant possibility that the worker's wage-earning capacity will fall below the level of his preinjury wages sometime in the future. *124 Respondent John Rambo injured his back and leg in 1980 while doing longshore work for petitioner Metropolitan Stevedore Company. Rambo claimed against Metropolitan for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), as amended, 33 U.S. C. 901 et seq., and the parties stipulated that Rambo had sustained a 22[1]20442% permanent partial disability, which would normally reflect a $120.24 decline in his preinjury $534.38 weekly wage. This, in turn, was reduced to an award of $80.16 per week under 8(c)(21) of the Act, 33 U.S. C. 908(c)(21), providing for compensation at the rate of 66[2]20443% of the difference between an employee's preinjury wages and postinjury wage-earning An Administrative Law Judge (ALJ) entered an order incorporating this stipulated award. App. 51; Metropolitan Stevedore Rambo was later trained as a longshore crane operator and got full-time work with his new skills, with occasional stints as a heavy-truck operator to earn extra pay. His resulting annual earnings between 1985 and were about three times what he had made before his injury. As a consequence, Metropolitan moved in 1989 to modify Rambo's earlier disability award, see 22, 33 U.S. C. 922, and a hearing was held before an ALJ. While there was no evidence that Rambo's physical condition had improved, the ALJ ordered the disability payments discontinued based on the tripling of Rambo's preinjury earnings: "After taking into consideration the increase in wages due to the rate of inflation and any increase in salary for the particular job, it is evident that [Rambo] no longer has a wage-earning capacity loss. Although [Rambo] testified that he might lose his job at some future time, the evidence shows that [Rambo] would not be at any *125 greater risk of losing his job than anyone else. Moreover, no evidence has been offered to show that [Rambo's] age, education, and vocational training are such that he would be at greater risk of losing his present job or in seeking new employment in the event that he should be required to do so. Likewise, the evidence does not show that [Rambo's] employer is a beneficent one. On the contrary, the evidence shows that [Rambo] is not only able to work full time as a crane operator, but that he is able to work as a heavy lift truck operator when the time is available within which to do so." App. 55. See also Rambo at -294. The Benefits Review Board affirmed the modification order, App. 57, 61, but the Court of Appeals for the Ninth Circuit reversed on the ground that 22 authorizes modification of an award only for changed physical conditions, We in turn reversed in Rambo holding that "[t]he fundamental purpose of the Act is to compensate employees (or their beneficiaries) for wage-earning capacity lost because of injury; where that wage-earning capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification." Since the essence of wage-earning capacity is economic, not physical, that capacity may be affected "even without any change in the employee's physical condition," On remand, the Court of Appeals again reversed the order discontinuing compensation payments. t recognized that when a worker suffers a significant physical impairment without experiencing a present loss of earnings, there may be serious tension between the statutory mandate to account for future effects of disability in determining a claimant's wage-earning capacity (and thus entitlement to compensation), *126 see 8(h), 33 U.S. C. 908(h), and the statutory prohibition against issuing any new order to pay benefits more than one year after compensation ends or an order is entered denying an award, see 22, 33 U.S. C. 922. The Court of Appeals reconciled the two provisions by reading the statute to authorize a present nominal award subject to later modification if conditions should change. The court reversed the order ending Rambo's benefits as unsupported by substantial evidence, due to "overemphasi[s on] Rambo's current status and fail[ure] to consider the effect of Rambo's permanent partial disability on his future earnings," ib and it remanded for entry of a nominal award reflecting Rambo's permanent partial disability,[1] We granted certiorari. While we agree that nominal compensation may be awarded under certain circumstances despite the worker's present ability to earn more than his preinjury wage, we vacate the judgment of the Court of Appeals directing entry of such an award and remand for factfinding by the ALJ. The LHWCA authorizes compensation not for physical injury as such, but for economic harm to the injured worker from decreased ability to earn wages. See Rambo The Act speaks of this economic harm as "disability," defined as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment," 2(10), 33 U.S. C. 902(10). Such incapacity is conclusively presumed for certain enumerated or "scheduled" injuries, which are compensated at 66[2]20443% of the worker's preinjury wages over specified periods of time. See 8(c)(1)—8(c)(20), 8(c)(22), 33 U.S. C. 908(c)(1)—908(c)(20), 908(c)(22); Potomac Elec. For other, so-called "unscheduled" injuries resulting in less than total disability, the Act sets compensation at "66[2]20443 per centum of the difference between the average weekly [preinjury] wages of the employee and the employee's wage-earning capacity thereafter." 8(c)(21), 33 U.S. C. 908(c)(21) (permanent partial disability); see also 8(e), 33 U.S. C. 908(e) (temporary partial disability). For figuring this difference, 8(h) explains that the claimant's postinjury "wage-earning capacity" is to be determined "by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Pro- vided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wageearning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future." 8(h), 33 U.S. C. 908(h). See also 10, 33 U.S. C. 910 (method for determining preinjury wages). See generally Rambo 515 U. S., We may summarize these provisions and their implications this way. Disability is a measure of earning capacity lost as a result of work-related injury. By distinguishing between the diminished capacity and the injury itself, and by defining capacity in relation both to the injured worker's old job and to other employment, the statute makes it clear that disability is the product of injury and opportunities in the job market. Capacity, and thus disability, is not necessarily reflected in actual wages earned after injury, see ; Potomac Elec. and when *128 it is not, the factfinder under the Act must make a determination of disability that is "reasonable" and "in the interest of justice," and one that takes account of the disability's future effects, 8(h). n some cases a disparity between the worker's actual postinjury wages and his job-market capacity will be obvious, along with the reasons for it. f a disabled worker with some present capacity chooses not to work at all, or to work at less than his capacity, a windfall is avoided by determining present disability and awarding a benefit accordingly. See, e. g., Penrod Drilling At the other extreme, a worker with some present disability may nonetheless be fortunate enough to receive not merely the market wages appropriate for his diminished capacity, but full preinjury wages (say, because an employer is generous, for whatever reason). See, e. g., Travelers ns. ; see also Once again, the present disability may still be calculated and a corresponding award made. A problem in applying the provisions applicable when there is a disparity between current wages and wageearning capacity arises in a case like this one, however. The worker now receives appropriate market wages as high or higher than those before his injury, thus experiencing no decline in present And yet (we assume for now) there is some particular likelihood that in the future the combination of injury and market conditions may leave him with a lower The question is whether such a person is presently disabled within the meaning of the statute, and if so, what provision should be made for the potential effects of disability in the future. There are two reasons to treat such a person as presently disabled under the statute. The first follows from the provision *129 of law that on its face bars an injured worker from waiting for adverse economic effects to occur in the future before bringing his disability claim, which generally must be filed within a year of injury. 13(a), 33 U.S. C. 913(a); He is also barred from seeking a new, modified award after one year from the date of any denial or termination of benefits. 22, 33 U.S. C. 922. Because an injured worker who has a basis to anticipate wage loss in the future resulting from a combination of his injury and job-market opportunities must nonetheless claim promptly, it is likely that Congress intended "disability" to include the injury-related potential for future wage loss.[2] And because a losing claimant loses for all time after one year from the denial or termination of benefits, it is equally likely that Congress intended such a claimant to obtain some award of benefits in anticipation of the future potential loss. *130 This conclusion is confirmed by the provision of 8(h) that in cases of disparity between actual wages and earning capacity, the natural effects of disability that will occur in the future must be given "due regard" as one of the "factors or circumstances in the case which may affect [a claimant's] capacity to earn wages in his disabled condition." Although this mandate is phrased in general terms, its practical effect is limited to the class of cases at issue here, where the worker is presently able to earn at least as much as before his injury. n all other cases, when injury depresses the claimant's wage-earning capacity under the conditions prevailing at the time of an award, so that the present effects of his disability are unquestionably compensable immediately, the Act already makes provision for the future effects of disability by means of 22, which liberally permits modification of awards in response to changed conditions that occur within one year of the last payment of compensation (or a denial or termination of benefits). 33 U.S. C. 922. Rambo held that this provision allows modification whenever a changed combination of training and economic (let alone physical) circumstances reduces, restores, or improves wage-earning -297.[3] Since ongoing awards may be modified if future possibilities become present realities, there is no need to account for such possibilities in calculating a worker's immediately compensable disability; the Act plainly takes a wait-and-see approach to future contingencies here.[4] The first award in this case was *131 a standard illustration of the proper practice of basing capacity determinations and compensation awards on present reality. f Rambo's initial award had already been discounted to reflect the odds of his obtaining less strenuous but higher paying work in the future, Rambo could hardly have held that the Act permitted reduction of that initial award again when Rambo actually received training as a crane operator and found work using his new skills. The first award simply reflected the degree of diminished capacity operative at the time it was made, and it was proper to revise it when conditions changed. Thus, if 8(h)'s admonition to consider future effects when calculating capacity has any practical application, it must be because it may apply in a case such as this one, in which there is no present wage loss and would thus be no present award if compensation were to be based solely on present employment conditions. f the future were ignored and compensation altogether denied whenever present earning capacity had not (yet) declined, 22 would bar modification in response to future changes in condition after one year. *132 To implement the mandate of 8(h) in this class of cases, then, "disability" must be read broadly enough to cover loss of capacity not just as a product of the worker's injury and present market conditions, but as a potential product of injury and market opportunities in the future. There must, in other words, be a cognizable category of disability that is potentially substantial, but presently nominal in character. There being, then, a need to account for potential future effects in a present determination of wage-earning capacity (and thus disability) when capacity does not immediately decline, the question is which of two basic methods to choose to do this. The first would be to make a one-time calculation of a periodic benefit following the approach of the common law of torts, which bases lump-sum awards for loss of future earnings on an estimate of "the difference between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm." Restatement (Second) of Torts 924, Comment d, p. 525 (1977). This predictive approach ordinarily requires consideration of every possible variable that could have an impact on ability to earn, including "[e]nvironmental factors such as the condition of the labor market, the chance of advancement or of being laid off, and the like." 4 F. Harper, F. James, & O. Gray, Law of Torts 25.8, pp. 550-551 (2d ed. 1986) (footnote omitted). Prediction of future employment may well be the most troublesome step in this wide-ranging enquiry. As the tripling of Rambo's own earnings shows, a claimant's future ability to earn wages will vary as greatly as opportunity varies, and any estimate of wage-earning potential turns in part on the probabilities over time that suitable jobs within certain ranges of pay will actually be open. n these calculations, there is room for error.[5] Cf. 25.8, at 553 *133 (to determine lost wage-earning capacity, juries must often "use their judgment (in effect, speculate)"). That juries in tort cases must routinely engage in such difficult predictions (compounded further by discounting for present value) is the price paid by the common-law approach for the finality of a one-time lump-sum judgment. The second possible way to account for future developments would be to do in this situation just what the Act already does through the modification provision in the run of cases: to wait and see, that is, to base calculation of diminished wage-earning capacity, and thus compensation, on current realities and to permit modifications reflecting the actual effects of an employee's disability as manifested over time. This way, finality is exchanged for accuracy, both in compensating a worker for the actual economic effects of his injury, and in charging the employer and his insurer for that amount alone. Metropolitan denies that the second, wait-and-see alternative is even open, arguing that 8(h) gives the factfinder only two choices: either deny compensation altogether because a claimant's actual wages have not diminished, or, if the ALJ concludes that the worker's current income does not fairly represent his present wage-earning capacity, calculate the *134 extent of the worker's disability (and his consequent entitlement to compensation) in toto based on all relevant factors, including the future effects of the disability. See Brief for Petitioner 9. What we have already said, however, shows the unsoundness of Metropolitan's two options. The practical effect of denying any compensation to a disabled claimant on the ground that he is presently able to earn as much as (or more than) before his injury would run afoul of the Act's mandate to account for the future effects of disability in fashioning an award, since those effects would not be reflected in the current award and the 1-year statute of limitations for modification after denial of compensation would foreclose responding to such effects on a wait-andsee basis as they might arise.[6] On the other hand, trying to honor that mandate by basing a present award on a comprehensive prediction of an inherently uncertain future would, as we have seen, almost always result in present overcompensation or under compensation. And it would be passing strange to credit Congress with the intent to guarantee fairness to employers and employees by a wait-and-see approach in most cases where future effects are imperfectly foreseeable, but to find no such intent in one class of cases, those in which wage-earning ability does not immediately decline.[7] *135 There is moreover an even more fundamental objection to Metropolitan's proposed options. They implicitly reject the very conclusion required to make sense of the combined provisions limiting claims and mandating consideration of future effects: that a disability whose substantial effects are only potential is nonetheless a present disability, albeit a presently nominal one. t is, indeed, this realization that points toward a way to employ the wait-and-see approach to provide for the future effects of disability when capacity does not immediately decline. t is simply "reasonable" and "in the interest of justice" (to use the language of 8(h)) to reflect merely nominal current disability with a correspondingly nominal award. Ordering nominal compensation holds open the possibility of a modified award if a future conjunction of injury, training, and employment opportunity should later depress the worker's ability to earn wages below the preinjury level, turning the potential disability into an actual one. t allows full scope to the mandate to consider the future effects of disability, it promotes accuracy, it preserves administrative simplicity by obviating cumbersome enquiries relating to the entire range of possible future states of affairs,[8] and it avoids imputing to Congress the unlikely intent *136 to join a wait-and-see rule for most cases with a predict-thefuture method when the disability results in no current decline in what the worker can earn. Our view, as it turns out, coincides on this point with the position taken by the Director of the Office of Workers' Compensation Programs (OWCP), who is charged with the administration of the Act, and who also construes the Act as permitting nominal compensation as a mechanism for taking future effects of disability into account when present wageearning ability remains undiminished. See Brief for Director, Office of Workers' Compensation Programs 12-21, 24-31. The Secretary of Labor has delegated the bulk of her statutory authority to administer and enforce the Act, including rulemaking power, to the Director, see Director, Office of Workers' Compensation ; ngalls Shipbuilding, nc. v. Director, Office of Workers' Compensation Programs, and the Director's reasonable interpretation of the Act brings at least some added persuasive force to our conclusion, see, e. g., ; There is, of course, the question of how high the potential for disability need be to be recognized as nominal, but that is an issue not addressed by the parties, and it would be imprudent of us to address it now with any pretense of settling it for all time. Here it is enough to recall that in those cases where an injury immediately depresses ability to earn wages under present conditions, the payment of actual compensation holds open the option of modification under 22 even for future changes in condition whose probability of occurrence may well be remote at the time of the original award. Consistent application of the Act's wait-and-see approach thus suggests that nominal compensation permitting *137 future modification should not be limited to instances where a decline in capacity can be shown to a high degree of statistical likelihood. Those courts to have dealt with the matter explicitly have required a showing that there is a significant possibility that a worker's wage-earning capacity will at some future point fall below his preinjury wages, see ; Randall v. Comfort Control, nc., and, in the absence of rulemaking by the agency specifying how substantial the possibility of future decline in capacity must be to justify a nominal award, we adopt this standard.[9] *138 We therefore hold that a worker is entitled to nominal compensation when his work-related injury has not diminished his present wage-earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions. The application of this legal standard to the case before us depends in part on how the burden of persuasion is allocated. Section 7(c) of the APA, 5 U.S. C. 556(d), which applies to adjudications under the Act, see Director, Office of Workers' Compensation places the burden of persuasion on the proponent of an order, ; when the evidence is evenly *139 balanced, the proponent loses, see On the initial claim for nominal compensation under the Act, then, the employee has the burden of showing by a preponderance of the evidence that he has been injured and that the odds are significant that his wage-earning capacity will fall below his preinjury wages at some point in the future. But when an employer seeks modification of previously awarded compensation, the employer is the proponent of the order with the burden of establishing a change in conditions justifying modification. n a case like this, where the prior award was based on a finding of economic harm resulting from an actual decline in wage-earning capacity at the time the award was entered, the employer satisfies this burden by showing that as a result of a change in capacity the employee's wages have risen to a level at or above his preinjury earnings. Once the employer makes this showing, 8(h) gives rise to the presumption that the employee's wage-earning capacity is equal to his current, higher wage and, in the face of this presumption, the burden shifts back to the claimant to show that the likelihood of a future decline in capacity is sufficient for an award of nominal compensation. We emphasize that the probability of a future decline is a matter of proof; it is not to be assumed pro forma as an administrative convenience in the run of cases. n this case, the first award of compensation was based on the parties' stipulation that Rambo suffered 22 12% permanent partial disability as a result of his injury, whereby Rambo established that the injury impaired his ability to undertake at least some types of previously available gainful labor and thus prevented him from earning as much as he had before his accident. Metropolitan sought termination of the award based solely on evidence, which the ALJ found persuasive, that Rambo is now able to earn market wages as a crane operator significantly greater than his preinjury earnings. There is therefore substantial evidence in the record supporting the ALJ's decision to terminate actual (as * opposed to nominal) benefits, since under present conditions Rambo's capacity to earn wages is no longer depressed. But the ALJ failed to consider whether there is a significant possibility that Rambo's wage-earning capacity will decline again in the future.[10] Because there is no evidence in the record of the modification proceedings showing that Rambo's physical condition has improved to the point of full recovery, the parties' earlier stipulation of permanent partial disability at least raises the possibility that Rambo's ability to earn will decline in the event he loses his current employment as a crane operator. The ALJ's order altogether terminating benefits must therefore be vacated for failure to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. Since the ALJ is the factfinder under the Act, see 21(b)(3), (c), 33 U.S. C. 921(b)(3), (c), however, the Court of Appeals should have remanded to the agency for further findings of fact, see, e. g., Randall v. Comfort Control, nc., 725 F. 2d, at 799- (remanding for consideration of nominal award), instead of directing entry of a nominal award based on its own appraisal of the evidence. We therefore vacate the Ninth Circuit's judgment insofar as it directs entry of an *141 award of nominal compensation, and remand the case for further proceedings consistent with this opinion. t is so ordered.

Justice Blackmun

concurring

United States v. Hohri

https://www.courtlistener.com/opinion/111903/united-states-v-hohri/

https://www.courtlistener.com/api/rest/v3/clusters/111903/

1986-109

I join the Court's opinion and its judgment. I do so, however, with less than full assurance and satisfaction. There are three reasons for my concern. The first is the consequent element of further delay in the decision on the merits in a case that has roots already more than four decades old. The issue on the merits probably will be back in this Court once again months or years hence. The second is that the statute the Court is forced to construe in this case is not a model of legislative craftsmanship. Surely, Congress is able to make its intent more evident than in the language it has utilized here. It is to be hoped that Congress will look at the problem it has created and will set forth in precise terms its conclusion as to jurisdiction of federal appellate courts in mixed-claims cases of this kind. My third reason is an administrative one. I am somewhat surprised and concerned over the fact that the Chief Judge of the Federal Circuit was designated to sit on this appeal. The jurisdictional issue, on which the case presently goes off, involves the jurisdiction of his own court as against that of the District of Columbia Circuit. In concluding to dissent, as he had every right to do — and as the Court today vindicates — the Chief Judge was forced to take a position favoring his own court's jurisdiction. The "appearance" is troubling. I wonder why what must have been a measure of embarrassment *77 for the Chief Judge was not avoided by refraining to assign him, or any other judge from the "opposite" court, to sit on this case. Unless the designation was purposeful (in order to have a panel with views of judges of both courts), one must observe that the Court of Appeals for the District of Columbia Circuit had a complement of other judges from which to fill the third seat on the three-judge panel.

I join the Court's opinion and its judgment. I do so, however, with less than full assurance and satisfaction. There are three reasons for my concern. The first is the consequent element of further delay in the decision on the merits in a case that has roots already more than four decades old. The issue on the merits probably will be back in this Court once again months or years hence. The second is that the statute the Court is forced to construe in this case is not a model of legislative craftsmanship. Surely, Congress is able to make its intent more evident than in the language it has utilized here. It is to be hoped that Congress will look at the problem it has created and will set forth in precise terms its conclusion as to jurisdiction of federal appellate courts in mixed-claims cases of this kind. My third reason is an administrative one. I am somewhat surprised and concerned over the fact that the Chief Judge of the Federal Circuit was designated to sit on this appeal. The jurisdictional issue, on which the case presently goes off, involves the jurisdiction of his own court as against that of the District of Columbia Circuit. In concluding to dissent, as he had every right to do — and as the Court today vindicates — the Chief Judge was forced to take a position favoring his own court's jurisdiction. The "appearance" is troubling. I wonder why what must have been a measure of embarrassment *77 for the Chief Judge was not avoided by refraining to assign him, or any other judge from the "opposite" court, to sit on this case. Unless the designation was purposeful (in order to have a panel with views of judges of both courts), one must observe that the Court of Appeals for the District of Columbia Circuit had a complement of other judges from which to fill the third seat on the three-judge panel.

Justice Rehnquist

majority

Department of Army v. Blue Fox, Inc.

https://www.courtlistener.com/opinion/118256/department-of-army-v-blue-fox-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118256/

1998-015

An insolvent prime contractor failed to pay a subcontractor for work the latter completed on a construction project for the Department of the Army. The Department of the Army having required no Miller Act bond from the prime *257 contractor, the subcontractor sought to collect directly from the Army by asserting an equitable lien on certain funds held by the Army. The Court of Appeals for the Ninth Circuit held that § 10(a) of the Administrative Procedure Act (APA), 5 U.S. C. § 702, waived the Government's immunity for the subcontractor's claim. We hold that § 702 did not nullify the long settled rule that sovereign immunity bars creditors from enforcing liens on Government property. Participating in a business development program for socially and economically disadvantaged firms run by the Small Business Administration (SBA), the Department of the Army contracted with Verdan Technology, Inc., in September 1993, to install a telephone switching system at an Army depot in Umatilla, Oregon. Verdan, in turn, employed respondent Blue Fox, Inc., as a subcontractor on the project to construct a concrete block building to house the telephone system and to install certain safety and support systems. Under the Miller Act, 40 U.S. C. §§ 270a—270d, a contractor that performs "construction, alteration, or repair of any public building or public work of the United States" generally must post two types of bonds. § 270a(a). First, the contractor must post a "performance bond . . . for the protection of the United States" against defaults by the contractor. § 270a(a)(1). Second, the contractor must post a "payment bond . . . for the protection of all persons supplying labor and material." § 270a(a)(2). The Miller Act gives the subcontractors and other suppliers "the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him." § 270b(a). Although the Army's original solicitation in this case required the contractor to furnish payment and performance bonds if the contract price exceeded $25,000, the Army later amended the solicitation, treated the contract as a "services contract," and deleted *258 the bond requirements. Verdan therefore did not post any Miller Act bonds. Blue Fox performed its obligations, but Verdan failed to pay it the $46,586.14 that remained due on the subcontract. After receiving notices from Blue Fox that it had not been fully paid, the Army nonetheless disbursed a total of $86,132.33 to Verdan as payment for all work that Verdan had completed. In January 1995, the Army terminated its contract with Verdan for various defaults and another contractor completed the Umatilla project. Blue Fox obtained a default judgment in tribal court against Verdan. Seeing that it could not collect from Verdan or its officers, it sued the Army for the balance due on its contract with Verdan in Federal District Court.[1] Predicating jurisdiction on 28 U.S. C. § 1331 and the APA, Blue Fox sought an "equitable lien" on any funds from the Verdan contract not paid to Verdan, or any funds available or appropriated for completion of the Umatilla project, and an order directing payment of those funds to it. Blue Fox also sought an injunction preventing the Army from paying any more money on the Verdan contract or on the follow-on contract until Blue Fox was paid. By the time of the suit, however, the Army had paid all amounts due on the Verdan contract, Blue Fox failed to obtain any preliminary relief, and the Army subsequently paid the replacement contractor the funds remaining on the Verdan contract plus additional funds.[2] *259 On cross-motions for summary judgment, the District Court held that the waiver of sovereign immunity provided by the APA did not apply to respondent's claim against the Army. The District Court thus concluded that it did not have jurisdiction over respondent's claim and accordingly granted the Army's motion for summary judgment. In a split decision, the Court of Appeals for the Ninth Circuit reversed in relevant part. See Blue Fox Inc. v. Small Business Admin., 121 F.3d 1357 (1997). The majority held that under this Court's decision in Bowen v. Massachusetts, 487 U.S. 879 (1988), the APA waives immunity for equitable actions. Based in part on its analysis of several of our cases examining a surety's right of subrogation, the majority held that the APA had waived the Army's immunity from Blue Fox's suit to recover the amount withheld by the Army. The majority concluded that the lien attached to funds retained by the Army but owed to Verdan at the time the Army received Blue Fox's notice that Verdan had failed to pay. The majority stated that "[t]he Army cannot escape Blue Fox's equitable lien by wrongly paying out funds to the prime contractor when it had notice of Blue Fox's unpaid claims." 121 F.3d, at 1363. The dissenting judge stated that "no matter how you slice Blue Fox's claim, it seeks funds from the treasury to compensate for the Army's failure to require Verdan to post a bond." Id., at 1364 (opinion of Rymer, J.). In her view, Congress chose to protect subcontractors like Blue Fox through the bond requirements of the Miller Act, not by waiving immunity in the APA to permit subcontractors to sue the United States directly for amounts owed to them by the prime contractor. Because this rule has been "conventional wisdom for at least fifty years," she did not agree that Congress had waived the Army's sovereign immunity from Blue Fox's suit. Ibid. The Government petitioned for review, and we granted certiorari to decide whether the APA has *260 waived the Government's immunity from suits to enforce an equitable lien. 524 U.S. 951 (1998). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). Congress, of course, has waived its immunity for a wide range of suits, including those that seek traditional money damages. Examples are the Federal Tort Claims Act, 28 U.S. C. § 2671 et seq., and the Tucker Act, 28 U.S. C. § 1491.[3] They are not involved here. Respondent sued the Army under § 10(a) of the APA, which provides in relevant part: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party." 5 U.S. C. § 702 (emphasis added). Respondent asks us to hold, as did the court below, that this provision, which waives the Government's immunity from *261 actions seeking relief "other than money damages," allows subcontractors to place liens on funds held by the United States Government for work completed on a prime contract. We have frequently held, however, that a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign. See, e. g., Lane v. Peña, 518 U.S. 187, 192 (1996) (citing cases); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986). Such a waiver must also be "unequivocally expressed" in the statutory text. See Lane, supra, at 192. Respondent's claim must therefore meet this high standard. Respondent argues, and the court below held, that our analysis of § 702 in Bowen compels the allowance of respondent's lien. We disagree. In Bowen, we examined the text and legislative history of § 702 to determine whether the Commonwealth of Massachusetts could sue the Secretary of Health and Human Services to enforce a provision of the Medicaid Act that required the payment of certain amounts to the State for Medicaid services. We held that the State's complaint in Bowen was not barred by the APA's prohibition on suits for money damages. The Court of Appeals below read our decision in Bowen as interpreting § 702's reference to "other than money damages" as waiving immunity from all actions that are equitable in nature. See 121 F.3d, at 1361 ("Since the APA waives immunity for equitable actions, the district court had jurisdiction under the APA"). Bowen `s analysis of § 702, however, did not turn on distinctions between "equitable" actions and other actions, nor could such a distinction have driven the Court's analysis in light of § 702's language. As Bowen recognized, the crucial question under § 702 is not whether a particular claim for relief is "equitable" (a term found nowhere in § 702), but rather what Congress meant by "other than money damages" (the precise terms of § 702). Bowen held that Congress employed this language to distinguish between specific relief and compensatory, or substitute, relief. The Court stated: *262 "`We begin with the ordinary meaning of the words Congress employed. The term "money damages," 5 U.S. C. § 702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies "are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled."` " 487 U.S., at 895 (quoting Maryland Dept. of Human Resources v. De- partment of Health and Human Services, 763 F.2d 1441, 1446 (CADC 1985) (citation omitted)). Bowen also concluded from its analysis of relevant legislative history that "the drafters had in mind the time-honored distinction between damages and specific relief." 487 U.S., at 897. Bowen `s interpretation of § 702 thus hinged on the distinction between specific relief and substitute relief, not between equitable and nonequitable categories of remedies. We accordingly applied this interpretation of § 702 to the State's suit to overturn a decision by the Secretary disallowing reimbursement under the Medicaid Act. We held that the State's suit was not one "seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it [was] a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money." Id., at 900. The Court therefore concluded that the substance of the State's suit was one for specific relief, not money damages, and hence the suit fell within § 702's waiver of immunity. It is clear from Bowen that the equitable nature of the lien sought by respondent here does not mean that its ultimate claim was not one for "money damages" within the meaning of § 702. Liens, whether equitable or legal, are merely a means to the end of satisfying a claim for the recovery of money. Indeed, equitable liens by their nature constitute substitute or compensatory relief rather than specific relief. An equitable lien does not "give the plaintiff the very thing *263 to which he was entitled," id., at 895 (citations and internal quotation marks omitted); instead, it merely grants a plaintiff "a security interest in the property, which [the plaintiff] can then use to satisfy a money claim," usually a claim for unjust enrichment, 1 D. Dobbs, Law of Remedies § 4.3(3), p. 601 (2d ed. 1993); see also Laycock, The Scope and Significance of Restitution, 67 Texas L. Rev. 1277, 1290 (1989) ("The equitable lien is a hybrid, granting a money judgment and securing its collection with a lien on the specific thing"). Commentators have warned not to view equitable liens as anything more than substitute relief: "[T]he form of the remedy requires that [a] lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits, and proceeds. These preliminary steps may, on a casual view, be misleading as to the nature of the remedy, and may cause it to appear to be something more than compensatory; but a closer view shows that all these steps are merely auxiliary, and that the real remedy, the final object of the proceeding, is the pecuniary recovery." 1 J. Pomeroy, Equity Jurisprudence § 112, p. 148 (5th ed. 1941). See also Dobbs, supra, at 601 (equitable lien foreclosure "results in only a monetary payment to the plaintiff and obviously does not carry with it the advantages of recovering specific property"). We accordingly hold that the sort of equitable lien sought by respondent here constitutes a claim for "money damages"; its goal is to seize or attach money in the hands of the Government as compensation for the loss resulting from the default of the prime contractor. As a form of substitute and not specific relief, respondent's action to enforce an equitable lien falls outside of § 702's waiver of sovereign immunity. *264 Our holding today is in accord with our precedent establishing that sovereign immunity bars creditors from attaching or garnishing funds in the Treasury, see Buchanan v. Alexander, 4 How. 20 (1845), or enforcing liens against property owned by the United States, see United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 471 (1910); United States ex rel. Hill v. American Surety Co. of N. Y., 200 U.S. 197, 203 (1906) ("As against the United States, no lien can be provided upon its public buildings or grounds"). Respondent points to nothing in the text or history of § 702 that suggests that Congress intended to overrule this precedent, let alone anything that "`unequivocally express[es]' " such an intent. Lane, 518 U. S., at 192. Instead, recognizing that sovereign immunity left subcontractors and suppliers without a remedy against the Government when the general contractor became insolvent, Congress enacted the Miller Act (and its predecessor the Heard Act) to protect these workers. See United States v. Munsey Trust Co., 332 U.S. 234, 241 (1947); Ansonia Brass & Copper Co., supra, at 471. But the Miller Act by its terms only gives subcontractors the right to sue on the surety bond posted by the prime contractor, not the right to recover their losses directly from the Government. Respondent contends that in several cases examining a surety's right of equitable subrogation, this Court suggested that subcontractors and suppliers can seek compensation directly against the Government. See, e. g., Prairie State Bank v. United States, 164 U.S. 227 (1896); Henningsen v. United States Fidelity & Guaranty Co. of Baltimore, 208 U.S. 404, 410 (1908); Pearlman v. Reliance Ins. Co., 371 U.S. 132, 141 (1962) (stating that "the laborers and materialmen had a right to be paid out of the fund [retained by the Government]" and hence a surety was subrogated to this right); but see Munsey Trust Co., supra, at 241 ("[N]othing is more clear than that laborers and materialmen do not have enforceable rights against the United States for their compensation"). *265 None of the cases relied upon by respondent involved a question of sovereign immunity, and, in fact, none involved a subcontractor directly asserting a claim against the Government. Instead, these cases dealt with disputes between private parties over priority to funds which had been transferred out of the Treasury and as to which the Government had disclaimed any ownership. They do not in any way disturb the established rule that, unless waived by Congress, sovereign immunity bars subcontractors and other creditors from enforcing liens on Government property or funds to recoup their losses. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

An insolvent prime contractor failed to pay a subcontractor for work the latter completed on a construction project for the Department of the Army. The Department of the Army having required no Miller Act bond from the prime *257 contractor, the subcontractor sought to collect directly from the Army by asserting an equitable lien on certain funds held by the Army. The Court of Appeals for the Ninth Circuit held that 10(a) of the Administrative Procedure Act (APA), 5 U.S. C. 702, waived the Government's immunity for the subcontractor's claim. We hold that 702 did not nullify the long settled rule that sovereign immunity bars creditors from enforcing liens on Government property. Participating in a business development program for socially and economically disadvantaged firms run by the Small Business Administration (SBA), the Department of the Army contracted with Verdan Technology, Inc., in September 1993, to install a telephone switching system at an Army depot in Umatilla, Oregon. Verdan, in turn, employed respondent Blue Fox, Inc., as a subcontractor on the project to construct a concrete block building to house the telephone system and to install certain safety and support systems. Under the Miller Act, 40 U.S. C. 270a—270d, a contractor that performs "construction, alteration, or repair of any public building or public work of the United States" generally must post two types of bonds. 270a(a). First, the contractor must post a "performance bond for the protection of the United States" against defaults by the contractor. 270a(a)(1). Second, the contractor must post a "payment bond for the protection of all persons supplying labor and material." 270a(a)(2). The Miller Act gives the subcontractors and other suppliers "the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him." 270b(a). Although the Army's original solicitation in this case required the contractor to furnish payment and performance bonds if the contract price exceeded $25,000, the Army later amended the solicitation, treated the contract as a "services contract," and deleted *258 the bond requirements. Verdan therefore did not post any Miller Act bonds. Blue Fox performed its obligations, but Verdan failed to pay it the $46,586.14 that remained due on the subcontract. After receiving notices from Blue Fox that it had not been fully paid, the Army nonetheless disbursed a total of $86,132.33 to Verdan as payment for all work that Verdan had completed. In January 1995, the Army terminated its contract with Verdan for various defaults and another contractor completed the Umatilla project. Blue Fox obtained a default judgment in tribal court against Verdan. Seeing that it could not collect from Verdan or its officers, it sued the Army for the balance due on its contract with Verdan in Federal District Court.[1] Predicating jurisdiction on 28 U.S. C. 1331 and the APA, Blue Fox sought an "equitable lien" on any funds from the Verdan contract not paid to Verdan, or any funds available or appropriated for completion of the Umatilla project, and an order directing payment of those funds to it. Blue Fox also sought an injunction preventing the Army from paying any more money on the Verdan contract or on the follow-on contract until Blue Fox was paid. By the time of the suit, however, the Army had paid all amounts due on the Verdan contract, Blue Fox failed to obtain any preliminary relief, and the Army subsequently paid the replacement contractor the funds remaining on the Verdan contract plus additional funds.[2] *259 On cross-motions for summary judgment, the District Court held that the waiver of sovereign immunity provided by the APA did not apply to respondent's claim against the Army. The District Court thus concluded that it did not have jurisdiction over respondent's claim and accordingly granted the Army's motion for summary judgment. In a split decision, the Court of Appeals for the Ninth Circuit reversed in relevant part. See Blue Fox The majority held that under this Court's decision in the APA waives immunity for equitable actions. Based in part on its analysis of several of our cases examining a surety's right of subrogation, the majority held that the APA had waived the Army's immunity from Blue Fox's suit to recover the amount withheld by the Army. The majority concluded that the lien attached to funds retained by the Army but owed to Verdan at the time the Army received Blue Fox's notice that Verdan had failed to pay. The majority stated that "[t]he Army cannot escape Blue Fox's equitable lien by wrongly paying out funds to the prime contractor when it had notice of Blue Fox's unpaid claims." The dissenting judge stated that "no matter how you slice Blue Fox's claim, it seeks funds from the treasury to compensate for the Army's failure to require Verdan to post a bond." In her view, Congress chose to protect subcontractors like Blue Fox through the bond requirements of the Miller Act, not by waiving immunity in the APA to permit subcontractors to sue the United States directly for amounts owed to them by the prime contractor. Because this rule has been "conventional wisdom for at least fifty years," she did not agree that Congress had waived the Army's sovereign immunity from Blue Fox's suit. The Government petitioned for review, and we granted certiorari to decide whether the APA has *260 waived the Government's immunity from suits to enforce an equitable lien. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Congress, of course, has waived its immunity for a wide range of suits, including those that seek traditional money damages. Examples are the Federal Tort Claims Act, 28 U.S. C. 2671 et seq., and the Tucker Act, 28 U.S. C. 1491.[3] They are not involved here. Respondent sued the Army under 10(a) of the APA, which provides in relevant part: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party." 5 U.S. C. 702 (emphasis added). Respondent asks us to hold, as did the court below, that this provision, which waives the Government's immunity from *261 actions seeking relief "other than money damages," allows subcontractors to place liens on funds held by the United States Government for work completed on a prime contract. We have frequently held, however, that a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign. See, e. g., ; Library of Such a waiver must also be "unequivocally expressed" in the statutory text. See at Respondent's claim must therefore meet this high standard. Respondent argues, and the court below held, that our analysis of 702 in Bowen compels the allowance of respondent's lien. We disagree. In Bowen, we examined the text and legislative history of 702 to determine whether the Commonwealth of Massachusetts could sue the Secretary of Health and Human Services to enforce a provision of the Medicaid Act that required the payment of certain amounts to the State for Medicaid services. We held that the State's complaint in Bowen was not barred by the APA's prohibition on suits for money damages. The Court of Appeals below read our decision in Bowen as interpreting 702's reference to "other than money damages" as waiving immunity from all actions that are equitable in nature. See Bowen `s analysis of 702, however, did not turn on distinctions between "equitable" actions and other actions, nor could such a distinction have driven the Court's analysis in light of 702's language. As Bowen recognized, the crucial question under 702 is not whether a particular claim for relief is "equitable" (a term found nowhere in 702), but rather what Congress meant by "other than money damages" (the precise terms of 702). Bowen held that Congress employed this language to distinguish between specific relief and compensatory, or substitute, relief. The Court stated: *262 "`We begin with the ordinary meaning of the words Congress employed. The term "money damages," 5 U.S. C. 702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies "are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled."` " ). Bowen also concluded from its analysis of relevant legislative history that "the drafters had in mind the time-honored distinction between damages and specific relief." Bowen `s interpretation of 702 thus hinged on the distinction between specific relief and substitute relief, not between equitable and nonequitable categories of remedies. We accordingly applied this interpretation of 702 to the State's suit to overturn a decision by the Secretary disallowing reimbursement under the Medicaid Act. We held that the State's suit was not one "seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it [was] a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money." The Court therefore concluded that the substance of the State's suit was one for specific relief, not money damages, and hence the suit fell within 702's waiver of immunity. It is clear from Bowen that the equitable nature of the lien sought by respondent here does not mean that its ultimate claim was not one for "money damages" within the meaning of 702. Liens, whether equitable or legal, are merely a means to the end of satisfying a claim for the recovery of money. Indeed, equitable liens by their nature constitute substitute or compensatory relief rather than specific relief. An equitable lien does not "give the plaintiff the very thing *263 to which he was entitled," ; instead, it merely grants a plaintiff "a security interest in the property, which [the plaintiff] can then use to satisfy a money claim," usually a claim for unjust enrichment, 1 D. Law of Remedies 4.3(3), p. 601 (2d ed. 1993); see also Laycock, The Scope and Significance of Restitution, 67 Texas L. Rev. 1277, 1290 (1989) ("The equitable lien is a hybrid, granting a money judgment and securing its collection with a lien on the specific thing"). Commentators have warned not to view equitable liens as anything more than substitute relief: "[T]he form of the remedy requires that [a] lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits, and proceeds. These preliminary steps may, on a casual view, be misleading as to the nature of the remedy, and may cause it to appear to be something more than compensatory; but a closer view shows that all these steps are merely auxiliary, and that the real remedy, the final object of the proceeding, is the pecuniary recovery." 1 J. Pomeroy, Equity Jurisprudence 112, p. 148 (5th ed. 1941). See also We accordingly hold that the sort of equitable lien sought by respondent here constitutes a claim for "money damages"; its goal is to seize or attach money in the hands of the Government as compensation for the loss resulting from the default of the prime contractor. As a form of substitute and not specific relief, respondent's action to enforce an equitable lien falls outside of 702's waiver of sovereign immunity. *264 Our holding today is in accord with our precedent establishing that sovereign immunity bars creditors from attaching or garnishing funds in the Treasury, see or enforcing liens against property owned by the United States, see United ; United States ex rel. Respondent points to nothing in the text or history of 702 that suggests that Congress intended to overrule this precedent, let alone anything that "`unequivocally express[es]' " such an intent. 518 U. S., at Instead, recognizing that sovereign immunity left subcontractors and suppliers without a remedy against the Government when the general contractor became insolvent, Congress enacted the Miller Act (and its predecessor the Heard Act) to protect these workers. See United ; Ansonia Brass & Copper at But the Miller Act by its terms only gives subcontractors the right to sue on the surety bond posted by the prime contractor, not the right to recover their losses directly from the Government. Respondent contends that in several cases examining a surety's right of equitable subrogation, this Court suggested that subcontractors and suppliers can seek compensation directly against the Government. See, e. g., Prairie State ; Henningsen v. United States Fidelity & Guaranty of Baltimore, ; Pearlman v. Reliance Ins. ; but see Munsey Trust at *265 None of the cases relied upon by respondent involved a question of sovereign immunity, and, in fact, none involved a subcontractor directly asserting a claim against the Government. Instead, these cases dealt with disputes between private parties over priority to funds which had been transferred out of the Treasury and as to which the Government had disclaimed any ownership. They do not in any way disturb the established rule that, unless waived by Congress, sovereign immunity bars subcontractors and other creditors from enforcing liens on Government property or funds to recoup their losses. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

Justice Stewart

dissenting

Hisquierdo v. Hisquierdo

https://www.courtlistener.com/opinion/109976/hisquierdo-v-hisquierdo/

https://www.courtlistener.com/api/rest/v3/clusters/109976/

1978-034

We are asked in this case to decide whether federal law prohibits the State of California from treating as community property a divorcing husband's expectancy interest in pension benefits afforded under the Railroad Retirement Act of 1974. There can be no doubt that the State is free to treat this interest as property. Herb v. Pitcairn, 324 U.S. 117, 125-126. The only question, therefore, is whether something in the federal Act prevents the State from applying its normal substantive property law, under which assets acquired during marriage are commonly owned by the husband and wife. From the Court's own review of the Railroad Retirement Act, it is apparent to me that the asserted federal conflict with California community property law—far from being grounded upon the concrete expressions that ordinarily are required to support a finding of federal pre-emption, see, e. g., Wissner v. Wissner, 338 U.S. 655—is patched together from statutory provisions that have no relationship at all to substantive marital property rights. Indeed, the federal "policies" the Court perceives amount to little more than the commonplace that retirement benefits are designed to provide an income on retirement to the employee. There is simply nothing in the Act to suggest that Congress meant to insulate these pension benefits from the rules of ownership that in California are a normal incident of marriage. I Congress, when it acts, ordinarily does so "against the background of the total corpus juris of the states." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68 (citation *592 omitted). In any case where it is claimed that a federal statute pre-empts state substantive law, therefore, it is essential to understand what the state law is. Perez v. Campbell, 402 U.S. 637, 644; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117. Although the question here arises in the context of a proceeding to dissolve a marriage, the state law at issue has to do with the ownership of property during marriage. Despite the Court's repeated suggestions to the contrary, community property law is simply not a body of law that is designed to provide a "benefit" for a divorced spouse. "Community of property between husband and wife is that system whereby the property which the husband and wife have is common property, that is, it belongs to both by halves." W. deFuniak & M. Vaughn, Principles of Community Property § 1, p. 1 (2d ed. 1971) (hereinafter Principles). This definition of the property rights of a married couple was first recognized in written form in 693 A. D. in Visigothic Spain, id., § 2, p. 3, and now prevails in eight States of the Union. As we have recognized many times in the past, the community property system reflects a concept of property and of the marital relationship entirely different from that at common law. See Poe v. Seaborn, 282 U.S. 101; Bender v. Pfaff, 282 U.S. 127; Hopkins v. Bacon, 282 U.S. 122; United States v. Yazell, 382 U.S. 341. See generally Principles. Fundamental to the system is the premise that husband and wife are equal partners in marriage. Id., § 2, p. 5; W. Reppy & W. deFuniak, Community Property in the United States 13 (1975). Each is deemed to make equal contributions to the marital enterprise, and each accordingly shares equally in its assets. Principles § 11.1, p. 28. Under the Spanish ganancial system followed in our community property States, property acquired before the marriage or after its termination is the separate property of the spouse who acquired it. Id., § 1. p. 1; Prager, The Persistence of Separate Property Concepts in California's Community Property *593 System, 1849-1975, 24 UCLA L. Rev. 1, 6 (1976). All property acquired during the marriage, however, is presumed to be community property. See, e. g., Meyer v. Kinzer, 12 Cal. 247, 251-252. The presumption is regarded as a rule of substantive property law, not one of procedure or evidence. Nilson v. Sarment, 153 Cal. 524, 96 P. 315. Cf. Poe v. Seaborn, supra. In general, all property which stems from the labors of either spouse during the marriage, "irrespective of direct contributions to its acquisition or the condition of title" is, in the absence of an agreement between the spouses to the contrary, community property. Prager, supra, at 6. The spouses are deemed to have contributed equally to the acquisition of the property, regardless of the actual division of labor in the marriage and regardless of whether only one spouse formally "earned" it. Ibid.[1] The interests of the spouses in the assets of the marital community are "during continuance of the marriage relation. . . present, existing and equal interests." Cal. Civ. Code Ann. § 5105 (West Supp. 1978). Upon dissolution of the marriage, each possesses an equal and absolute right to his or her one-half interest. Meyer v. Kinzer, supra, at 251-252; In re Marriage of Brown, 15 Cal. 3d 838, 848, 544 P.2d 561, 567. The right of each spouse to his or her share of the community assets, then, is a substantive property right entirely distinct from the right that a spouse might have to the award of alimony upon dissolution of the marriage. A community property settlement merely distributes to the spouses property which, by virtue of the marital relationship, he or she already owns. An alimony award, by contrast, reflects a *594 judgment that one spouse—even after the termination of the marriage—is entitled to continuing support by the other. In California, retirement benefits attributable to employment during marriage are community property. In re Marriage of Brown, supra. As long as the employee spouse has some reasonable expectancy of receiving the benefits in the future, the nonemployee spouse's interest may attach even if the pension rights are not formally "vested." Ibid. Pension rights created by act of the state legislature have been treated as community property by the California courts, Cheney v. City and County of San Francisco, 7 Cal. 2d 565, 61 P.2d 754, as have federal military pension benefits, In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449, and benefits afforded by the federal civil service retirement plan, In re Marriage of Peterson, 41 Cal. App. 3d 642, 115 Cal. Rptr. 184. The California Supreme Court in this case, having found no conflict with the express provisions or policies of the Railroad Retirement Act, applied these settled rules of state marital property law to the petitioner's expectation of receiving the retirement benefits afforded by the Act. The State's decision to treat as property benefits that arguably are not "vested" is one that it is free to make. The only question for this Court, then, is whether the State can, consistently with the federal Act, follow its normal substantive community property law in dealing with these prospective benefits. II It is clear that Congress, when it established the railroad retirement system, did not purport to regulate the marital property rights of workers covered by the Act. Federal preemption, then, must be based on a perceived conflict between the provisions of the Act and the substantive law of California. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, supra, at 127; New York Dept. of Social Services v. Dublino, 413 U.S. 405, 423 n. 29. When the state substantive law in *595 question regulates family and family-property arrangements—matters that traditionally have been left to local law, see In re Burrus, 136 U.S. 586, 588-594; De Sylva v. Ballentine, 351 U.S. 570, 580—state interests "should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied." United States v. Yazell, 382 U. S., at 352 (emphasis added). The full force of this rule applies no less when the property in question consists of federally created benefits. De Sylva v. Ballentine, supra, at 580-582. Cf. Wallis v. Pan American Petroleum Corp., 384 U. S., at 68. Consistently with this principle, the cases that have held that a State's community property law was pre-empted have depended upon specific provisions in the federal statute governing the ownership of the property involved and, as well, upon a finding that application of the state law would substantially disserve demonstrable federal policies. Wissner v. Wissner, 338 U.S. 655; Free v. Bland, 369 U.S. 663. In Wissner, for example, the Court held that California could not treat the proceeds of a National Service Life Insurance policy as community property even though it assumed that the policy had been purchased with community assets. The decedent soldier in that case had, without obtaining his wife's consent, designated his mother and father as the beneficiaries under his policy. The Court's conclusion was based primarily upon a section of the National Service Life Insurance Act that specifically gave the insured the "right to designate the beneficiary or beneficiaries of the insurance" and "at all times" the "right to change" that designation. See 38 U.S. C. § 802 (g) (1946 ed.). From this explicit provision, the Court found that Congress had "spoken with force and clarity" in directing that the proceeds were to belong to the "named beneficiary and no other." 338 U.S., at 658. California's judgment awarding one-half *596 of the proceeds to the wife, the Court said, would nullify the choice Congress had expressly given to the soldier, id., at 659, and frustrate the federal purpose of "enhanc[ing] the morale of the serviceman," id., at 660. The Court also noted that the state-court judgment, insofar as it ordered the "diversion of future payments" as soon as they were paid to the beneficiary, was contrary to a provision in the Act protecting such payments from "seizure . . . either before or after receipt by the beneficiary." Id., at 659. In Free v. Bland, a treasury bond purchased by a husband with community assets designated the owner as husband "or" wife. Federal regulations explicitly provided that the survivor of an "or" form bond was to be the absolute owner. This directive, coupled with the substantial federal interest in establishing uniform rules governing the transfer of bonds, the Court found sufficient to override state community property law. Essential to the finding of pre-emption in the Wissner and Bland cases was a determination that the ownership of the asset involved had, by express federal directive, been defined in a manner inconsistent with state community property law. In each case, explicit provisions of federal law not only conflicted with principles of state law but also created property rights at variance with the rights that normally would have been created by local property law.[2] *597 III In the Railroad Retirement Act of 1974 Congress did not with "force and clarity" direct that the employee's pension benefits should not be subject to the substantive community property law of California. A The Railroad Retirement Act contains no express provisions governing the ownership rights that may or may not attach to the pension interest of a married employee. The provisions governing the basic annuity are in themselves neutral. Both 45 U.S. C. § 231a (a) (1), which defines the eligibility requirements for the employee's annuity, and § 231b, which contains the provisions governing the computation of annuities, state simply that the annuity is that "of the individual" employee. This indication that the benefit belongs to the employee is in this context wholly unremarkable. The congressional decision to "title" this federal benefit in the worker cannot, without more, be taken as evidence that Congress intended to disturb a body of state law that obtains whether or not the asset was earned by or is titled in one or the other spouse. The benefit structure of the Act is also neutral. To be sure, Congress has chosen to provide a separate and additional benefit for spouses of retired workers, 45 U.S. C. § 231a (c) (3) (i), and to terminate that benefit upon divorce. 45 U.S. C. § 231d (c) (3). These provisions, however, do not preclude a rule of state property law that treats an annuity payable to either spouse as an asset of the marital community. *598 The congressional decision to terminate the separate spousal benefit upon divorce in no way conflicts with that rule, for the community property interest—apart from the fact that it is an ownership interest and not a "benefit" for a divorced spouse—attaches only to that portion of an annuity attributable to labor performed during the marriage. And the provision of the separate and additional spousal benefit surely does not itself indicate an intent to displace community property law. The legislative history demonstrates quite clearly that Congress created this benefit in 1951 in order to respond to the greater financial needs of retired workers who are married. H. R. Rep. No. 976, 82d Cong., 1st Sess. (1951). The original Act afforded an annuity only for the individual employee. The amount of the benefit was tied to length of service and to salary, with no account taken of marital status upon retirement. See Report of the Commission on Railroad Retirement, H. R. Doc. No. 92-350, p. 7 (1972). When Congress increased the amounts available to employees with families by providing benefits for spouses, its purpose was simply to increase the level of benefits for employees with families, not to ordain the ownership of property within the family. B The only provision in the Act that even arguably might conflict with California community property law is § 231m the anti-attachment provision. It states: "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Yet this language certainly does not speak to substantive ownership interests that may or may not exist in annuities or *599 pension payments. Like similar language often included in spendthrift trusts, it seems to have been designed to protect the benefits from the reach of creditors. See generally E. Griswold, Spendthrift Trusts (2d ed. 1947). The provision thus has no real relevance to the question whether the annuity is the property of the marital community.[3] For under community property law, the husband and wife are not one another's creditors; they are co-owners. Upon dissolution of the marital community, the community property is divided, not adjudicated as indebtedness. Neither the prohibition against "garnishment" nor that against "attachment" bears on an action to enforce a community property decree. Both terms govern remedies, not ownership rights, and the remedies themselves traditionally have been unavailable in an action grounded upon the theory that the property at issue "belongs" to the claimant. See generally J. Rood, Law of Garnishment (1896); S. Kneeland, Law of Attachments (1885).[4] The prohibition against "assignment" *600 of pension payments is equally irrelevant to the question in this case. A determination that a particular asset is community property is clearly not an "assignment" of that property from one spouse to another. It is no more than a conclusion that the property interest—from the moment it arose—belonged equally to the two parties to the marriage. Principles § 97. It is no doubt for these reasons that the Court places no great reliance on the "garnishment," "attachment," or "assignment" provisions of § 231m. The Court does, however, discern a major conflict between the clause prohibiting "anticipation" of payments and the California community property law. Yet it seems to me demonstrably clear that this provision of § 231m is no more relevant to the issue in this case than the "garnishment," "attachment," and "assignment" provisions. There is, as the Court acknowledges, no legislative history to explain the meaning of the "anticipation" restraint in the *601 Railroad Retirement Act. It can only be assumed, therefore, that Congress intended that it was to operate, as at common law,[5] to ensure that the trustees of the fund would not make or be compelled to make lump-sum payments inconsistent with the periodic benefits provided by statute. See Griswold, supra, § 512. Like the other terms of § 231m, its import is thus procedural, not substantive. Griswold, supra, § 512. The Court suggests that the "anticipation" restraint conflicts with California community property law because state law permits a court, upon dissolution of a marriage, to consider the value of benefits that are not yet due and then to make the actual award of community property out of other assets that are currently available. The reasoning seems to be that if an employee cannot "anticipate" benefits by securing a lump-sum award, the employee's spouse is similarly prevented from "anticipating" a community property interest by receiving assets of equal value from the marital estate. This reasoning ignores the express wording of § 231m. The clause prohibits anticipation of "the payment" of a pension or annuity. A state judgment that considers the value of the pension interest acquired during marriage and satisfies that interest by ordering the transfer of other community assets does not anticipate a pension "payment." There is, accordingly, no conflict between such a judgment and § 231m, for it has no impact at all upon the timing of payments to the employee *602 and is therefore not at all incompatible with the distribution system established by Congress. The Court also suggests that the "no anticipation" provision of § 231m was designed to preserve congressional "freedom to amend the Act." Yet it has never been established that Congress is free to terminate or reduce the benefits afforded by the railroad retirement system. Unlike the Social Security Act, see Flemming v. Nestor, 363 U.S. 603, 608-611, the Railroad Retirement Act contains no express provision permitting Congress to terminate it. Indeed, the legislative history of the Act suggests that it was established to provide security to railroad workers whose benefits under private pension programs had frequently been treated as discretionary payments. See H. R. Rep. No. 1711, 74th Cong., 1st Sess., 10-11 (1935). The drafters of the original legislation expressly stated that one of the important features of any retirement plan was a guarantee to the worker of an "absolute" right to receive the pension. Id., at 11. It thus seems obvious that the "no anticipation" provision—included as it was in the 1935 version of the Act—had no relationship whatever to any possibility that Congress might try to terminate or reduce the benefits payable under the Act. Whether Congress could ever do so is an open question, a question neither presented nor properly to be decided in the present case. Finally the Court suggests that "anticipation" would harm an employee who leaves the industry before retirement and thus is unable to "regain" the amount of the offset. But this difficulty becomes wholly imaginary when the nature of the community property award is understood. A spouse receives only one-half the value of the pension interest attributable to work performed by the other spouse during the marriage. The "current connection with industry" requirement for supplemental benefits referred to by the Court obtains at the time the employee becomes eligible for current pension payments. If the employee is still working at the time the marriage is *603 dissolved, a California court would be obligated to give heed to the benefit provisions of the Act in appraising the value of the interest acquired by the employee's spouse during the marriage. And surely occasional problems in assessing the precise value of the community property—problems with which the courts of California routinely deal—cannot provide a basis for the Court's finding of pre-emption.[6] IV The Railroad Retirement Act, unlike the statutes involved in Wissner v. Wissner and Free v. Bland, thus contains no evidence that Congress intended to withdraw the benefits at issue from the reach of California community property law. Believing, as I do, that the pre-emption perceived by the Court is entirely of its own making, I respectfully dissent.

We are asked in this case to decide whether federal law prohibits the State of California from treating as community property a divorcing husband's expectancy interest in pension benefits afforded under the Railroad Retirement Act of 1974. There can be no doubt that the State is free to treat this interest as property. The only question, therefore, is whether something in the federal Act prevents the State from applying its normal substantive property law, under which assets acquired during marriage are commonly owned by the husband and wife. From the Court's own review of the Railroad Retirement Act, it is apparent to me that the asserted federal conflict with California community property law—far from being grounded upon the concrete expressions that ordinarily are required to support a finding of federal pre-emption, see, e. g., —is patched together from statutory provisions that have no relationship at all to substantive marital property rights. Indeed, the federal "policies" the Court perceives amount to little more than the commonplace that retirement benefits are designed to provide an income on retirement to the employee. There is simply nothing in the Act to suggest that Congress meant to insulate these pension benefits from the rules of ownership that in California are a normal incident of marriage. I Congress, when it acts, ordinarily does so "against the background of the total corpus juris of the states." (citation *592 omitted). In any case where it is claimed that a federal statute pre-empts state substantive law, therefore, it is essential to understand what the state law is. ; Merrill Lynch, Pierce, Fenner & Smith, Although the question here arises in the context of a proceeding to dissolve a marriage, the state law at issue has to do with the ownership of property during marriage. Despite the Court's repeated suggestions to the contrary, community property law is simply not a body of law that is designed to provide a "benefit" for a divorced spouse. "Community of property between husband and wife is that system whereby the property which the husband and wife have is common property, that is, it belongs to both by halves." W. deFuniak & M. Vaughn, Principles of Community Property 1, p. 1 (2d ed. 1971) (hereinafter Principles). This definition of the property rights of a married couple was first recognized in written form in 93 A. D. in Visigothic Spain, 2, p. 3, and now prevails in eight States of the Union. As we have recognized many times in the past, the community property system reflects a concept of property and of the marital relationship entirely different from that at common law. See ; ; ; United See generally Principles. Fundamental to the system is the premise that husband and wife are equal partners in marriage. 2, p. 5; W. Reppy & W. deFuniak, Community Property in the United States 13 Each is deemed to make equal contributions to the marital enterprise, and each accordingly shares equally in its assets. Principles 11.1, p. 28. Under the Spanish ganancial system followed in our community property States, property acquired before the marriage or after its termination is the separate property of the spouse who acquired it. 1. p. 1; The Persistence of Separate Property Concepts in California's Community Property *593 System, 1849-1975, All property acquired during the marriage, however, is presumed to be community property. See, e. g., The presumption is regarded as a rule of substantive property law, not one of procedure or evidence. 9 P. 315. Cf. In general, all property which stems from the labors of either spouse during the marriage, "irrespective of direct contributions to its acquisition or the condition of title" is, in the absence of an agreement between the spouses to the contrary, community property. at The spouses are deemed to have contributed equally to the acquisition of the property, regardless of the actual division of labor in the marriage and regardless of whether only one spouse formally "earned" it. [1] The interests of the spouses in the assets of the marital community are "during continuance of the marriage relation. present, existing and equal interests." Cal. Civ. Code Ann. 5105 (West Supp. 1978). Upon dissolution of the marriage, each possesses an equal and absolute right to his or her one-half interest. at ; In re Marriage of 544 P.2d 51, 57. The right of each spouse to his or her share of the community assets, then, is a substantive property right entirely distinct from the right that a spouse might have to the award of alimony upon dissolution of the marriage. A community property settlement merely distributes to the spouses property which, by virtue of the marital relationship, he or she already owns. An alimony award, by contrast, reflects a *594 judgment that one spouse—even after the termination of the marriage—is entitled to continuing support by the other. In California, retirement benefits attributable to employment during marriage are community property. In re Marriage of As long as the employee spouse has some reasonable expectancy of receiving the benefits in the future, the nonemployee spouse's interest may attach even if the pension rights are not formally "vested." Pension rights created by act of the state legislature have been treated as community property by the California courts, 7 Cal. 2d 55, 1 P.2d 754, as have federal military pension benefits, In re Marriage of Fithian, and benefits afforded by the federal civil service retirement plan, In re Marriage of Peterson, 41 Cal. App. 3d 42, The California Supreme Court in this case, having found no conflict with the express provisions or policies of the Railroad Retirement Act, applied these settled rules of state marital property law to the petitioner's expectation of receiving the retirement benefits afforded by the Act. The State's decision to treat as property benefits that arguably are not "vested" is one that it is free to make. The only question for this Court, then, is whether the State can, consistently with the federal Act, follow its normal substantive community property law in dealing with these prospective benefits. II It is clear that Congress, when it established the railroad retirement system, did not purport to regulate the marital property rights of workers covered by the Act. Federal preemption, then, must be based on a perceived conflict between the provisions of the Act and the substantive law of California. Merrill Lynch, Pierce, Fenner & Smith, ; New York Dept. of Social 423 n. 29. When the state substantive law in *595 question regulates family and family-property arrangements—matters that traditionally have been left to local law, see In re Burrus, 13 U.S. 58, ; De 580—state interests "should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied." United The full force of this rule applies no less when the property in question consists of federally created benefits. De Cf. 384 U. S., at Consistently with this principle, the cases that have held that a State's community property law was pre-empted have depended upon specific provisions in the federal statute governing the ownership of the property involved and, as well, upon a finding that application of the state law would substantially disserve demonstrable federal policies. ; 39 U.S. 3. In Wissner, for example, the Court held that California could not treat the proceeds of a National Service Life Insurance policy as community property even though it assumed that the policy had been purchased with community assets. The decedent soldier in that case had, without obtaining his wife's consent, designated his mother and father as the beneficiaries under his policy. The Court's conclusion was based primarily upon a section of the National Service Life Insurance Act that specifically gave the insured the "right to designate the beneficiary or beneficiaries of the insurance" and "at all times" the "right to change" that designation. See 38 U.S. C. 802 (g) (194 ed.). From this explicit provision, the Court found that Congress had "spoken with force and clarity" in directing that the proceeds were to belong to the "named beneficiary and no other." 338 U.S., at 58. California's judgment awarding one-half *59 of the proceeds to the wife, the Court said, would nullify the choice Congress had expressly given to the soldier, at 59, and frustrate the federal purpose of "enhanc[ing] the morale of the serviceman," at 0. The Court also noted that the state-court judgment, insofar as it ordered the "diversion of future payments" as soon as they were paid to the beneficiary, was contrary to a provision in the Act protecting such payments from "seizure either before or after receipt by the beneficiary." at 59. In a treasury bond purchased by a husband with community assets designated the owner as husband "or" wife. Federal regulations explicitly provided that the survivor of an "or" form bond was to be the absolute owner. This directive, coupled with the substantial federal interest in establishing uniform rules governing the transfer of bonds, the Court found sufficient to override state community property law. Essential to the finding of pre-emption in the Wissner and Bland cases was a determination that the ownership of the asset involved had, by express federal directive, been defined in a manner inconsistent with state community property law. In each case, explicit provisions of federal law not only conflicted with principles of state law but also created property rights at variance with the rights that normally would have been created by local property law.[2] *597 III In the Railroad Retirement Act of 1974 Congress did not with "force and clarity" direct that the employee's pension benefits should not be subject to the substantive community property law of California. A The Railroad Retirement Act contains no express provisions governing the ownership rights that may or may not attach to the pension interest of a married employee. The provisions governing the basic annuity are in themselves neutral. Both 45 U.S. C. 231a (a) (1), which defines the eligibility requirements for the employee's annuity, and 231b, which contains the provisions governing the computation of annuities, state simply that the annuity is that "of the individual" employee. This indication that the benefit belongs to the employee is in this context wholly unremarkable. The congressional decision to "title" this federal benefit in the worker cannot, without more, be taken as evidence that Congress intended to disturb a body of state law that obtains whether or not the asset was earned by or is titled in one or the other spouse. The benefit structure of the Act is also neutral. To be sure, Congress has chosen to provide a separate and additional benefit for spouses of retired workers, 45 U.S. C. 231a (c) (3) (i), and to terminate that benefit upon divorce. 45 U.S. C. 231d (c) (3). These provisions, however, do not preclude a rule of state property law that treats an annuity payable to either spouse as an asset of the marital community. *598 The congressional decision to terminate the separate spousal benefit upon divorce in no way conflicts with that rule, for the community property interest—apart from the fact that it is an ownership interest and not a "benefit" for a divorced spouse—attaches only to that portion of an annuity attributable to labor performed during the marriage. And the provision of the separate and additional spousal benefit surely does not itself indicate an intent to displace community property law. The legislative history demonstrates quite clearly that Congress created this benefit in 1951 in order to respond to the greater financial needs of retired workers who are married. H. R. Rep. No. 97, 82d Cong., 1st Sess. (1951). The original Act afforded an annuity only for the individual employee. The amount of the benefit was tied to length of service and to salary, with no account taken of marital status upon retirement. See Report of the Commission on Railroad Retirement, H. R. Doc. No. 92-350, p. 7 (1972). When Congress increased the amounts available to employees with families by providing benefits for spouses, its purpose was simply to increase the level of benefits for employees with families, not to ordain the ownership of property within the family. B The only provision in the Act that even arguably might conflict with California community property law is 231m the anti-attachment provision. It states: "Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." Yet this language certainly does not speak to substantive ownership interests that may or may not exist in annuities or *599 pension payments. Like similar language often included in spendthrift trusts, it seems to have been designed to protect the benefits from the reach of creditors. See generally E. Spendthrift Trusts (2d ed. 1947). The provision thus has no real relevance to the question whether the annuity is the property of the marital community.[3] For under community property law, the husband and wife are not one another's creditors; they are co-owners. Upon dissolution of the marital community, the community property is divided, not adjudicated as indebtedness. Neither the prohibition against "garnishment" nor that against "attachment" bears on an action to enforce a community property decree. Both terms govern remedies, not ownership rights, and the remedies themselves traditionally have been unavailable in an action grounded upon the theory that the property at issue "belongs" to the claimant. See generally J. Rood, Law of Garnishment (189); S. Kneeland, Law of Attachments (1885).[4] The prohibition against "assignment" *00 of pension payments is equally irrelevant to the question in this case. A determination that a particular asset is community property is clearly not an "assignment" of that property from one spouse to another. It is no more than a conclusion that the property interest—from the moment it arose—belonged equally to the two parties to the marriage. Principles 97. It is no doubt for these reasons that the Court places no great reliance on the "garnishment," "attachment," or "assignment" provisions of 231m. The Court does, however, discern a major conflict between the clause prohibiting "anticipation" of payments and the California community property law. Yet it seems to me demonstrably clear that this provision of 231m is no more relevant to the issue in this case than the "garnishment," "attachment," and "assignment" provisions. There is, as the Court acknowledges, no legislative history to explain the meaning of the "anticipation" restraint in the *01 Railroad Retirement Act. It can only be assumed, therefore, that Congress intended that it was to operate, as at common law,[5] to ensure that the trustees of the fund would not make or be compelled to make lump-sum payments inconsistent with the periodic benefits provided by statute. See 512. Like the other terms of 231m, its import is thus procedural, not substantive. 512. The Court suggests that the "anticipation" restraint conflicts with California community property law because state law permits a court, upon dissolution of a marriage, to consider the value of benefits that are not yet due and then to make the actual award of community property out of other assets that are currently available. The reasoning seems to be that if an employee cannot "anticipate" benefits by securing a lump-sum award, the employee's spouse is similarly prevented from "anticipating" a community property interest by receiving assets of equal value from the marital estate. This reasoning ignores the express wording of 231m. The clause prohibits anticipation of "the payment" of a pension or annuity. A state judgment that considers the value of the pension interest acquired during marriage and satisfies that interest by ordering the transfer of other community assets does not anticipate a pension "payment." There is, accordingly, no conflict between such a judgment and 231m, for it has no impact at all upon the timing of payments to the employee *02 and is therefore not at all incompatible with the distribution system established by Congress. The Court also suggests that the "no anticipation" provision of 231m was designed to preserve congressional "freedom to amend the Act." Yet it has never been established that Congress is free to terminate or reduce the benefits afforded by the railroad retirement system. Unlike the Social Security Act, see 33 U.S. 03, 08-11, the Railroad Retirement Act contains no express provision permitting Congress to terminate it. Indeed, the legislative history of the Act suggests that it was established to provide security to railroad workers whose benefits under private pension programs had frequently been treated as discretionary payments. See H. R. Rep. No. 1711, 74th Cong., 1st Sess., 10-11 (1935). The drafters of the original legislation expressly stated that one of the important features of any retirement plan was a guarantee to the worker of an "absolute" right to receive the pension. It thus seems obvious that the "no anticipation" provision—included as it was in the 1935 version of the Act—had no relationship whatever to any possibility that Congress might try to terminate or reduce the benefits payable under the Act. Whether Congress could ever do so is an open question, a question neither presented nor properly to be decided in the present case. Finally the Court suggests that "anticipation" would harm an employee who leaves the industry before retirement and thus is unable to "regain" the amount of the offset. But this difficulty becomes wholly imaginary when the nature of the community property award is understood. A spouse receives only one-half the value of the pension interest attributable to work performed by the other spouse during the marriage. The "current connection with industry" requirement for supplemental benefits referred to by the Court obtains at the time the employee becomes eligible for current pension payments. If the employee is still working at the time the marriage is *03 dissolved, a California court would be obligated to give heed to the benefit provisions of the Act in appraising the value of the interest acquired by the employee's spouse during the marriage. And surely occasional problems in assessing the precise value of the community property—problems with which the courts of California routinely deal—cannot provide a basis for the Court's finding of pre-emption.[] IV The Railroad Retirement Act, unlike the statutes involved in and thus contains no evidence that Congress intended to withdraw the benefits at issue from the reach of California community property law. Believing, as I do, that the pre-emption perceived by the Court is entirely of its own making, I respectfully dissent.

Justice Kagan

dissenting

Turner v. United States

https://www.courtlistener.com/opinion/4403802/turner-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4403802/

2016-061

Consider two criminal cases. In the first, the govern- ment accuses ten defendants of acting together to commit a vicious murder and robbery. At trial, each defendant accepts that the attack occurred almost exactly as the government describes—contending only that he wasn’t part of the rampaging group. The defendants thus un- dermine each other’s arguments at every turn. In the second case, the government makes the same arguments as before. But this time, all of the accused adopt a com- mon defense, built around an alternative account of the crime. Armed with new evidence that someone else perpe- trated the murder, the defendants vigorously dispute the government’s gang-attack narrative and challenge the credibility of its investigation. The question this case presents is whether such a unified defense, relying on evidence unavailable in the first scenario, had a “reason- able probability” (less than a preponderance) of shifting 2 TURNER v. UNITED STATES KAGAN, J., dissenting even one juror’s vote. Cone v. Bell, 556 U.S. 449, 452, 470 (2009); see Kyles v. Whitley, 514 U.S. 419, 434 (1995). That is the relevant question because the Government here knew about but withheld the evidence of an alterna- tive perpetrator—and so prevented the defendants from coming together to press that theory of the case. If the Government’s non-disclosure was material, in the sense just described, this Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), demands a new trial. The Court today holds it was not material: In light of the evidence the Government offered, the majority argues, the transformed defense stood little chance of persuading a juror to vote to acquit. That conclusion is not indefensible: The Govern- ment put on quite a few witnesses who said that the de- fendants committed the crime. But in the end, I think the majority gets the answer in this case wrong. With the undisclosed evidence, the whole tenor of the trial would have changed. Rather than relying on a “not me, maybe them” defense, ante, at 6, all the defendants would have relentlessly impeached the Government’s (thoroughly impeachable) witnesses and offered the jurors a way to view the crime in a different light. In my view, that could well have flipped one or more jurors—which is all Brady requires. Before explaining that view, I note that the majority and I share some common ground. We agree on the uni- verse of exculpatory or impeaching evidence suppressed in this case: The majority’s description of that evidence, and of the trial held without it, is scrupulously fair. See ante, at 2–6, 7–9. We also agree—as does the Government— that such evidence ought to be disclosed to defendants as a matter of course. See ante, at 10. Constitutional require- ments aside, turning over exculpatory materials is a core responsibility of all prosecutors—whose professional inter- est and obligation is not to win cases but to ensure justice is done. See Kyles, 514 U.S., at 439. And finally, we Cite as: 582 U. S. ____ (2017) 3 KAGAN, J., dissenting agree on the legal standard by which to assess the materi- ality of undisclosed evidence for purposes of applying the constitutional rule: Courts are to ask whether there is a “reasonable probability” that disclosure of the evidence would have led to a different outcome—i.e., an acquittal or hung jury rather than a conviction. See ante, at 10. But I part ways with the majority in applying that standard to the evidence withheld in this case. That evidence falls into three basic categories, discussed below. Taken together, the materials would have recast the trial significantly—so much so as to “undermine[] confidence” in the guilty verdicts reached in their absence. Kyles, 514 U.S., at 434. First, the Government suppressed information identify- ing a possible alternative perpetrator. The defendants knew that, shortly before the police arrived, witnesses had observed two men acting suspiciously near the alleyway garage where Catherine Fuller’s body was found. But they did not know—because the Government never told them—that a witness had identified one of those men as James McMillan. Equipped with that information, the defendants would have discovered that in the weeks fol- lowing Fuller’s murder, McMillan assaulted and robbed two other women of comparable age in the same neighbor- hood. And using that information, the defendants would have united around a common defense. They would all have pointed their fingers at McMillan (rather than at each other), arguing that he committed Fuller’s murder as part of a string of similar crimes. Second, the Government suppressed witness statements suggesting that one or two perpetrators—not a large group—carried out the attack. Those statements were given by two individuals who walked past the garage around the time of Fuller’s death. They told the police that they heard groans coming from inside the garage; and one remarked that the garage’s doors were closed at the 4 TURNER v. UNITED STATES KAGAN, J., dissenting time. Introducing that evidence at trial would have sown doubt about the Government’s group-attack narrative, because that many people (as everyone agrees) couldn’t have fit inside the small garage. And the questions thus raised would have further supported the defendants’ theory that McMillan (and perhaps an accomplice) had committed the murder. Third and finally, the Government suppressed a raft of evidence discrediting its investigation and impeaching its witnesses. Undisclosed files, for example, showed that the police took more than nine months to look into a witness’s claim that a man named James Blue had murdered Fuller. Evidence of that kind of negligence could easily have led jurors to wonder about the competence of all the police work done in the case. Other withheld documents re- vealed that one of the Government’s main witnesses was high on PCP when she met with investigators to identify participants in the crime—and that she also encouraged a friend to lie to the police to support her story. Using that sort of information, see also ante, at 9, the defendants could have undercut the Government’s witnesses—even while presenting their own account of the murder. In reply to all this, the majority argues that “none of the [accused] attempted to mount [an alternative-perpetrator] defense” and that such a defense would have challenged “the very cornerstone of the Government’s case.” Ante, at 12. But that just proves my point. The defendants didn’t offer an alternative-perpetrator defense because the Gov- ernment prevented them from learning what made it credible: that one of the men seen near the garage had a record of assaulting and robbing middle-aged women, and that witnesses would back up the theory that only one or two individuals had committed the murder. Moreover, that defense had game-changing potential exactly because it challenged the cornerstone of the Government’s case. Without the withheld evidence, each of the defendants had Cite as: 582 U. S. ____ (2017) 5 KAGAN, J., dissenting little choice but to accept the Government’s framing of the crime as a group attack—and argue only that he wasn’t there. That meant the defendants often worked at cross- purposes. In particular, each defendant not identified by a Government witness sought to bolster that witness’s credibility, no matter the harm to his co-defendants. As one defense lawyer remarked after another’s supposed cross-examination of a Government witness: “They’ve got [an extra] prosecutor[ ] in the courtroom now.” Saperstein & Walsh, 10 Defendants Complicate Trial, Washington Post, Nov. 17, 1985, p. A14, col. 1. Credible alternative- perpetrator evidence would have allowed the defendants to escape this cycle of mutually assured destruction. By enabling the defendants to jointly attack the Govern- ment’s “cornerstone” theory, the withheld evidence would have reframed the case presented to the jury. Still, the majority claims, an alternative-perpetrator defense would have had no realistic chance of changing the outcome because the Government had ample evidence of a group attack, including five witnesses who testified that they had participated in it or seen it happen. See ante, at 12–13. But the Government’s case wasn’t nearly the slam-dunk the majority suggests. No physical evi- dence tied any of the defendants to the crime—a highly surprising fact if, as the Government claimed, more than ten people carried out a spur-of-the-moment, rampage-like attack in a confined space. And as even the majority recognizes, the Government’s five eyewitnesses had some serious credibility deficits. See ibid. Two had been charged as defendants, and agreed to testify only in ex- change for favorable plea deals. See 116 A.3d 894, 902 (D. C. 2015). Two admitted they were high on PCP at the time. See id., at 903, 911; App. A535–A536, A649. (As noted above, one was also high when she later met with police to identify the culprits.) One was an eighth-grader whose own aunt contradicted parts of his trial testimony. 6 TURNER v. UNITED STATES KAGAN, J., dissenting See 116 A.3d, at 903, 911. Even in the absence of an alternative account of the crime, the jury took more than a week—and many dozens of votes—to reach its final ver- dict. Had the defendants offered a unified counter- narrative, based on the withheld evidence, one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt. Again, the issue here concerns the difference between two criminal cases. The Government got the case it most wanted—the one in which the defendants, each in an effort to save himself, formed something of a circular firing squad. And the Government avoided the case it most feared—the one in which the defendants acted jointly to show that a man known to assault women like Fuller committed her murder. The difference between the two cases lay in the Government’s files—evidence of obvious relevance that prosecutors nonetheless chose to suppress. I think it could have mattered to the trial’s outcome. For that reason, I respectfully dissent

Consider two criminal cases. In the first, the govern- ment accuses ten defendants of acting together to commit a vicious murder and robbery. At trial, each defendant accepts that the attack occurred almost exactly as the government describes—contending only that he wasn’t part of the rampaging group. The defendants thus un- dermine each other’s arguments at every turn. In the second case, the government makes the same arguments as before. But this time, all of the accused adopt a com- mon defense, built around an alternative account of the crime. Armed with new evidence that someone else perpe- trated the murder, the defendants vigorously dispute the government’s gang-attack narrative and challenge the credibility of its investigation. The question this case presents is whether such a unified defense, relying on evidence unavailable in the first scenario, had a “reason- able probability” (less than a preponderance) of shifting 2 TURNER v. UNITED STATES KAGAN, J., dissenting even one juror’s vote. (2009); see That is the relevant question because the Government here knew about but withheld the evidence of an alterna- tive perpetrator—and so prevented the defendants from coming together to press that theory of the case. If the Government’s non-disclosure was material, in the sense just described, this Court’s decision in demands a new trial. The Court today holds it was not material: In light of the evidence the Government offered, the majority argues, the transformed defense stood little chance of persuading a juror to vote to acquit. That conclusion is not indefensible: The Govern- ment put on quite a few witnesses who said that the de- fendants committed the crime. But in the end, I think the majority gets the answer in this case wrong. With the undisclosed evidence, the whole tenor of the trial would have changed. Rather than relying on a “not me, maybe them” defense, ante, at 6, all the defendants would have relentlessly impeached the Government’s (thoroughly impeachable) witnesses and offered the jurors a way to view the crime in a different light. In my view, that could well have flipped one or more jurors—which is all Brady requires. Before explaining that view, I note that the majority and I share some common ground. We agree on the uni- verse of exculpatory or impeaching evidence suppressed in this case: The majority’s description of that evidence, and of the trial held without it, is scrupulously fair. See ante, at 2–6, 7–9. We also agree—as does the Government— that such evidence ought to be disclosed to defendants as a matter of course. See ante, at 10. Constitutional require- ments aside, turning over exculpatory materials is a core responsibility of all prosecutors—whose professional inter- est and obligation is not to win cases but to ensure justice is done. See And finally, we Cite as: 582 U. S. (2017) 3 KAGAN, J., dissenting agree on the legal standard by which to assess the materi- ality of undisclosed evidence for purposes of applying the constitutional rule: Courts are to ask whether there is a “reasonable probability” that disclosure of the evidence would have led to a different outcome—i.e., an acquittal or hung jury rather than a conviction. See ante, at 10. But I part ways with the majority in applying that standard to the evidence withheld in this case. That evidence falls into three basic categories, discussed below. Taken together, the materials would have recast the trial significantly—so much so as to “undermine[] confidence” in the guilty verdicts reached in their absence. 514 U.S., at First, the Government suppressed information identify- ing a possible alternative perpetrator. The defendants knew that, shortly before the police arrived, witnesses had observed two men acting suspiciously near the alleyway garage where Catherine Fuller’s body was found. But they did not know—because the Government never told them—that a witness had identified one of those men as James McMillan. Equipped with that information, the defendants would have discovered that in the weeks fol- lowing Fuller’s murder, McMillan assaulted and robbed two other women of comparable age in the same neighbor- hood. And using that information, the defendants would have united around a common defense. They would all have pointed their fingers at McMillan (rather than at each other), arguing that he committed Fuller’s murder as part of a string of similar crimes. Second, the Government suppressed witness statements suggesting that one or two perpetrators—not a large group—carried out the attack. Those statements were given by two individuals who walked past the garage around the time of Fuller’s death. They told the police that they heard groans coming from inside the garage; and one remarked that the garage’s doors were closed at the 4 TURNER v. UNITED STATES KAGAN, J., dissenting time. Introducing that evidence at trial would have sown doubt about the Government’s group-attack narrative, because that many people (as everyone agrees) couldn’t have fit inside the small garage. And the questions thus raised would have further supported the defendants’ theory that McMillan (and perhaps an accomplice) had committed the murder. Third and finally, the Government suppressed a raft of evidence discrediting its investigation and impeaching its witnesses. Undisclosed files, for example, showed that the police took more than nine months to look into a witness’s claim that a man named James Blue had murdered Fuller. Evidence of that kind of negligence could easily have led jurors to wonder about the competence of all the police work done in the case. Other withheld documents re- vealed that one of the Government’s main witnesses was high on PCP when she met with investigators to identify participants in the crime—and that she also encouraged a friend to lie to the police to support her story. Using that sort of information, see also ante, at 9, the defendants could have undercut the Government’s witnesses—even while presenting their own account of the murder. In reply to all this, the majority argues that “none of the [accused] attempted to mount [an alternative-perpetrator] defense” and that such a defense would have challenged “the very cornerstone of the Government’s case.” Ante, at 12. But that just proves my point. The defendants didn’t offer an alternative-perpetrator defense because the Gov- ernment prevented them from learning what made it credible: that one of the men seen near the garage had a record of assaulting and robbing middle-aged women, and that witnesses would back up the theory that only one or two individuals had committed the murder. Moreover, that defense had game-changing potential exactly because it challenged the cornerstone of the Government’s case. Without the withheld evidence, each of the defendants had Cite as: 582 U. S. (2017) 5 KAGAN, J., dissenting little choice but to accept the Government’s framing of the crime as a group attack—and argue only that he wasn’t there. That meant the defendants often worked at cross- purposes. In particular, each defendant not identified by a Government witness sought to bolster that witness’s credibility, no matter the harm to his co-defendants. As one defense lawyer remarked after another’s supposed cross-examination of a Government witness: “They’ve got [an extra] prosecutor[ ] in the courtroom now.” Saperstein & Walsh, 10 Defendants Complicate Trial, Washington Post, Nov. 17, 1985, p. A14, col. 1. Credible alternative- perpetrator evidence would have allowed the defendants to escape this cycle of mutually assured destruction. By enabling the defendants to jointly attack the Govern- ment’s “cornerstone” theory, the withheld evidence would have reframed the case presented to the jury. Still, the majority claims, an alternative-perpetrator defense would have had no realistic chance of changing the outcome because the Government had ample evidence of a group attack, including five witnesses who testified that they had participated in it or seen it happen. See ante, at 12–13. But the Government’s case wasn’t nearly the slam-dunk the majority suggests. No physical evi- dence tied any of the defendants to the crime—a highly surprising fact if, as the Government claimed, more than ten people carried out a spur-of-the-moment, rampage-like attack in a confined space. And as even the majority recognizes, the Government’s five eyewitnesses had some serious credibility deficits. See Two had been charged as defendants, and agreed to testify only in ex- change for favorable plea deals. See (D. C. 2015). Two admitted they were high on PCP at the time. See ; App. A535–A536, A649. (As noted above, one was also high when she later met with police to identify the culprits.) One was an eighth-grader whose own aunt contradicted parts of his trial testimony. 6 TURNER v. UNITED STATES KAGAN, J., dissenting See 116 A.3d, Even in the absence of an alternative account of the crime, the jury took more than a week—and many dozens of votes—to reach its final ver- dict. Had the defendants offered a unified counter- narrative, based on the withheld evidence, one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt. Again, the issue here concerns the difference between two criminal cases. The Government got the case it most wanted—the one in which the defendants, each in an effort to save himself, formed something of a circular firing squad. And the Government avoided the case it most feared—the one in which the defendants acted jointly to show that a man known to assault women like Fuller committed her murder. The difference between the two cases lay in the Government’s files—evidence of obvious relevance that prosecutors nonetheless chose to suppress. I think it could have mattered to the trial’s outcome. For that reason, I respectfully dissent

Justice O'Connor

dissenting

South Carolina v. Gathers

https://www.courtlistener.com/opinion/112277/south-carolina-v-gathers/

https://www.courtlistener.com/api/rest/v3/clusters/112277/

1988-104

In Booth v. Maryland, 482 U.S. 496 (1987), this Court held that the Eighth Amendment prohibited a jury from considering a victim impact statement during the sentencing phase of a capital trial. The document at issue in Booth was compiled by the Maryland Division of Parole and Probation on the basis of extensive interviews with the two murder victims' son, daughter, son-in-law, and granddaughter. In addition to evidence relating to the personal qualities of the victims themselves, the statement in Booth described the emotional impact of the crime on the victims' family members, including their resulting sleeplessness, fear, depression, and constant painful memories. The statement also described *813 the family members' opinions about the crime, the defendant, and the proper penalty to be imposed. Id., at 509-515. The majority in Booth took the view that such information "may be wholly unrelated to the blameworthiness of a particular defendant," id., at 504, and could divert the capital sentencer's attention from the circumstances of the crime and the defendant's background and record, id., at 505. The majority noted that introduction of evidence of a victim's good character would entitle the defendant to rebut this evidence, resulting in "a `mini-trial' on the victim's character." Id., at 507. The Court also expressed concern that the opinions of family members regarding the crime and the defendant could serve to "inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id., at 508. Since our decision in Booth, there has been considerable confusion in the lower courts about the precise scope of its holding. Some courts, like the South Carolina Supreme Court in this case, have read Booth for the broad proposition that "the injection of the victim's personal characteristics into the sentencing determination" violates the Eighth Amendment. 295 S. C. 476, 484, 369 S.E.2d 140, 144 (1988). Other courts have declined to read Booth so broadly, holding that it does not prohibit prosecutorial argument at the penalty phase concerning the personal characteristics of the victim. See, e. g., Daniels v. State, 528 N.E.2d 775, 782 (Ind. 1988); Moon v. State, 258 Ga. 748, 756, 375 S.E.2d 442, 450 (Ga. 1988). See also People v. Rich, 45 Cal. 3d 1036, 1089-1090, 755 P.2d 960, 993-994 (1988); People v. Ghent, 43 Cal. 3d 739, 771-772, 739 P.2d 1250, 1271 (1987). I joined both dissents in Booth, see Booth, 482 U. S., at 515 (WHITE, J., dissenting); id., at 519 (SCALIA, J., dissenting), believing that the case was wrongly decided on its facts and rested on a misinterpretation of the Eighth Amendment and this Court's cases thereunder. Although I remain persuaded that Booth was wrong when decided and stand ready *814 to overrule it if the Court would do so, we can reach a proper disposition in this case without such action. Booth's central holding that statements about the harm to a victim's family have no place in capital sentencing does not control the case before us today. At issue here are solely prosecutorial comments about the victim himself. Thus, we must decide whether to adopt a broad reading of Booth as establishing a rigid Eighth Amendment rule eliminating virtually all consideration of the victim at the penalty phase, or a narrower reading of that decision which would allow jury consideration of information about the victim and the extent of the harm caused in arriving at its moral judgment concerning the appropriate punishment. See Mills v. Maryland, 486 U. S., 367, 398 (1988) (REHNQUIST, C. J., dissenting) ("I do not interpret Booth as foreclosing the introduction of all evidence, in whatever form, about a murder victim"). Because the Eighth Amendment itself requires "that the penalty imposed in a capital case be proportional to the harm caused and the defendant's blameworthiness," Enmund v. Florida, 458 U.S. 782, 823 (1982) (O'CONNOR, J., dissenting), I would reject a rigid Eighth Amendment rule which prohibits a sentencing jury from hearing argument or considering evidence concerning the personal characteristics of the victim. I would thus reverse the judgment of the South Carolina Supreme Court in this case. I also would decline respondent's invitation that this Court comb the record for indications that the prosecutor "misrepresented the evidence" in his closing argument or appealed to religious bias in violation of the Due Process Clause of the Fourteenth Amendment. See Brief for Respondent 21-24. Instead, I would remand the case to the South Carolina Supreme Court for that particular inquiry. I On a Saturday evening in September 1986, Richard Haynes sat peacefully on a park bench near his mother's home with a Bible and various religious items at his side. A *815 vulnerable man with a history of mental problems, Haynes called himself "Reverend Minister" and shared his religious views with those who would listen. Haynes was approached by respondent Demetrius Gathers and three companions who sat down on the bench next to him and drank beer. After Haynes told Gathers he did not wish to converse with him, Gathers and two of his companions beat Haynes brutally, and Gathers smashed a bottle over his head. App. 18-22. As Haynes lay helpless, Gathers and one of his compatriots rummaged through the various religious and other items in Haynes' possession, strewing them around on the ground as they looked for something to steal. Id., at 27-28, 34-35. Gathers' companions then left, but Gathers remained at the scene striking the unconscious Haynes with an umbrella and then forcing the umbrella into his anus. Id., at 23-26. Gathers then departed and walked to a nearby apartment complex. Id., at 26. Sometime later, Gathers and one other companion returned to the park with a knife. Gathers admitted that he then stabbed Haynes to death. Id., at 30, 36. At Gathers' trial for murder and criminal sexual conduct, Richard Haynes' mother testified without objection about her son's mental problems and his practice of carrying a Bible and other religious items and "talk[ing] to people all the time about the Lord." Id., at 5. One of Gathers' companions testified that Haynes' Bible was clearly visible on the park bench as they approached him on the night of the murder. Id., at 26-27. All the items Haynes carried with him that night — including olive oil, plastic angels, rosary beads, two Bibles, a voter registration card, and the "Game Guy's Prayer" — were introduced into evidence without objection during the guilt phase of the trial. Id., at 8-10; Record 565-567, 782-783, 785-787. Those items were reintroduced into evidence without objection at the penalty phase. Id., at 1167. *816 The jury convicted respondent of murder and first degree criminal sexual conduct. During his closing argument at the penalty phase, the prosecutor referred to the fact that Richard Haynes was a religious person as well as a vulnerable man with mental problems who was unable to keep a regular job. The prosecutor referred to several of the religious items that had been introduced into evidence. He also read the "Game Guy's Prayer" in its entirety, suggesting that Haynes was the sort of person who "took things as they came along" and "was prepared to deal with tragedies that he came across in his life." App. 43. The prosecutor also referred to Haynes' voter registration card found beside his body, arguing that the card "[s]peaks a lot about Reverend Minister Haynes" who "believed in this community" and believed "that in this country you could go to a public park and sit on a public bench and not be attacked by the likes of Demetrius Gathers." Ibid. The sentencing jury was then given instructions which are not challenged here and returned a recommendation that the death sentence be imposed. The South Carolina Supreme Court reversed Gathers' death sentence, finding that the prosecutor's closing argument at the sentencing proceeding violated the Eighth Amendment "by focusing extensively on the personal characteristics of the victim." 295 S. C., at 482, 369 S.E.2d, at 143. II Booth should not be read, in my view, to preclude prosecutorial comment which gives the sentencer a "glimpse of the life" a defendant "chose to extinguish." Mills v. Maryland, supra, at 397 (REHNQUIST, C. J., dissenting). "The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of `circumstances of the crime' that mere mention will always be problematic." Brooks v. Kemp, 762 F.2d 1383, 1409 (CA11 1985) (en banc), vacated on other grounds, 478 U.S. 1016 (1986), judgment reinstated, 809 F.2d 700 *817 (CA11) (en banc), cert. denied, 483 U.S. 1010 (1987). In my view, nothing in the Eighth Amendment precludes the prosecutor from conveying to the jury a sense of the unique human being whose life the defendant has taken. More fundamentally, this case illustrates the one-sided nature of the moral judgment that the Court's broad reading of Booth would require of the capital sentencer. This Court has consistently required that a jury at the penalty phase be allowed to consider a wide range of information concerning the background of the defendant. Thus, not merely the circumstances of the crime are relevant, but as we stated in Lockett v. Ohio, 438 U.S. 586, 604 (1978): "[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death" (emphasis in original; footnote omitted). See also Eddings v. Oklahoma, 455 U.S. 104 (1982). Our decisions in Lockett and Eddings were based on the proposition that the decision of the capital sentencer is a profoundly moral one and must reflect the moral judgment of the community regarding the proper penalty to be inflicted on a particular individual for his or her actions. Evidence extraneous to the crime itself is deemed relevant and indeed, constitutionally so, "because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring). In this case, the sentencing jury heard testimony from respondent's mother, his sister, and his cousin, all indicating that he was an affectionate and caring person. Record 1183, 1187, 1199. Gathers' sixth grade teacher testified that he was a quiet and affectionate child but that he was not given sufficient guidance and discipline at home. Id., at 1193, 1195. None of this evidence was directly relevant to *818 the events of September 13, 1986, but all of it was relevant to the jury's assessment of respondent himself and his moral blameworthiness. Similarly, one of the factors that has long entered into society's conception of proper punishment is the harm caused by the defendant's actions. Thus, we have long recognized that retribution itself is a valid penological goal of the death penalty. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Indeed, we have expressly noted that while "retribution is an element of all punishments society imposes," it "clearly plays a more prominent role in a capital case." Spaziano v. Florida, 468 U.S. 447, 462 (1984). "The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender." Tison v. Arizona, 481 U.S. 137, 149 (1987). Moreover, one essential factor in determining the defendant's culpability is the extent of the harm caused. That the harm caused by a defendant's actions is relevant to the capital sentencer's moral judgment concerning the appropriate penalty, even if the defendant did not specifically intend that harm, is a principle recognized both in the decisions of this Court and in legislative decisions concerning appropriate levels of punishment. In Tison v. Arizona, supra, we held that the Eighth Amendment did not preclude imposing the death penalty on two brothers who participated substantially in their father's armed prison breakout and in a related kidnaping and robbery that resulted in four murders, even though neither defendant "took any act which he desired to, or was substantially certain would, cause death." Id., at 150. We found that the Tisons' involvement in the crime was such that "both subjectively appreciated that their acts were likely to result in the taking of innocent life," id., at 152, and that "the record would support a finding of the culpable mental state of reckless indifference to human life," id., at 151. We noted that "reckless indifference to the value of *819 human life may be every bit as shocking to the moral sense as an `intent to kill,' " id., at 157, and we remanded the case to the Supreme Court of Arizona for a specific determination whether the Tisons possessed that mental state, id., at 158. What was critical to the defendants' eligibility for the death penalty in Tison was the harm they helped bring about: the death of four innocent human beings. In a similar manner, society punishes reckless driving differently from vehicular homicide; the distinction rests not on any difference in the defendant's mental state but on the notion that one of the legitimate concerns of any sentencer is the harm that the defendant's actions have caused. See Booth, 482 U. S., at 516 (WHITE, J., dissenting) ("There is nothing aberrant in a juror's inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused"). In the death penalty context, no State authorizes infliction of the penalty for attempted murder, yet the criminal defendant who has attempted to kill another human being has the same mental state as the actual killer. Indeed, as JUSTICE SCALIA noted in dissent in Booth, the difference between murder and attempted murder may often hinge on a fortuity over which the defendant has no control at all. See id., at 519. The only distinction is the harm to the community which results from the defendant's actions, and this distinction is deemed sufficient to support a difference in punishment between a sentence of years and the ultimate penalty. Nothing in the Eighth Amendment precludes a State, if it chooses, from "includ[ing] as a sentencing consideration the particularized harm that an individual's murder causes to the rest of society," id., at 517 (WHITE, J., dissenting). Indeed, precisely because the harm caused to society by a particular victim's death is relevant to society's moral judgment concerning the proper punishment, I would decline to read Booth for the broad proposition that the victim's personal characteristics are irrelevant at the sentencing phase of *820 a capital trial. A rigid Eighth Amendment rule which excludes all such considerations is not supported by history or societal consensus, and it withholds information which a State may clearly deem relevant to the reasoned moral judgment of a capital sentencer. Thus, I would reverse the judgment of the South Carolina Supreme Court on this issue. In his closing argument in this case, the prosecutor focused on the heinous nature of respondent's crime. App. 40-41. The prosecutor brought the jury's attention to the fact that Richard Haynes was a religious person whose religious belongings were callously ransacked by Gathers during the attack. Id., at 41. The prosecutor commented on some of the specific items introduced into evidence, and he read the "Game Guy's Prayer," which was found at the scene of the murder. That "Prayer," which invokes sports metaphors and stresses the virtues of being an accepting and resilient "good sport" in the game of life, was used by the prosecutor to stress the vulnerability and simple humanity of the victim. As the prosecutor argued: "Reverend Minister Haynes, we know, was a very small person. He had his mental problems. Unable to keep a regular job. And he wasn't blessed with fame or fortune." Id., at 42. The prosecutor also commented on the victim's possession of a voter registration card at the time of his death, indicating that it "[s]peaks a lot about Reverend Minister Haynes," and exemplified the victim's "belie[f] in this community." In sum, the prosecutor stressed that the victim was an ordinary citizen who trusted that he could sit quietly on a public park bench without the risk of death. In my view, no aspect of the prosecutor's argument in this case violated the Eighth Amendment. The jury found at the guilt phase that Gathers made a conscious decision to kill another human being. Just as Gathers' own background was important to the jury's assessment of him as a "uniquely individual human bein[g]," see Woodson v. North Carolina, 428 U.S. 280, 304 (1976), so information about his equally unique *821 victim was relevant to the jury's assessment of the harm he had caused and the appropriate penalty. Nothing in the Eighth Amendment precludes the community from considering its loss in assessing punishment nor requires that the victim remain a faceless stranger at the penalty phase of a capital trial. That the victim in this case was a deeply religious and harmless individual who exhibited his care for his community by religious proselytization and political participation in its affairs was relevant to the community's loss at his demise, just as society would view with grief and anger the killing of the mother or father of small children. See Booth, supra, at 516 (WHITE, J., dissenting). The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed "cruel and unusual." Trop v. Dulles, 356 U.S. 86, 101 (1958). Because neither aspect of the Eighth Amendment was offended by the prosecutor's remarks, I would reverse the judgment below. III As an alternative ground supporting the judgment below, Gathers argues that the prosecutor engaged in "manipulation of the evidence and outright fabrication" in his portrait of the victim's personal characteristics based on inferences from the "Game Guy's Prayer" and the voter registration card. Brief for Respondent 22. Gathers also contends that the prosecutor's closing argument impermissibly invited the jury to impose the death sentence on the basis of the victim's religion and political affiliation in violation of the Due Process Clause. Id., at 23. It would indeed be improper for a prosecutor to urge that the death penalty be imposed because of the race, religion, or political affiliation of the victim. As JUSTICE WHITE wrote in dissent in Booth, "It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim's race in determining whether the death penalty is appropriate. Cf. McCleskey v. Kemp, 481 U. S. *822 279 (1987)." Booth, 482 U. S., at 517. See also Zant v. Stephens, 462 U.S. 862, 885 (1983) (if a State "attached the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant. . . due process of law would require that the jury's decision to impose death be set aside"); Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J., concurring); Brooks v. Kemp, 762 F. 2d, at 1409. Evaluation of Gathers' claim requires consideration of the entire record to determine whether any allegedly erroneous or improper remarks so infected the entire proceedings with unfairness as to render the resulting sentence a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168 (1986). Because the "Game Guy's Prayer" was already in evidence without objection and could have been read by the jury even if the prosecutor never mentioned it, the prosecutor's reading of that document during his closing argument may constitute harmless error. Nevertheless, I would remand this case to the South Carolina Supreme Court to conduct this inquiry in the first instance. Gathers also argues that he did not have the opportunity to rebut the prosecutor's positive statements about the victim's characteristics, and thus that his death sentence violates the dictates of Gardner v. Florida, 430 U.S. 349, 362 (1977) (opinion of STEVENS, J.) (due process precludes imposition of the death penalty on the basis of information in a presentence report which the defendant had no opportunity to rebut). Brief for Respondent 18-20. "No doubt a capital defendant must be allowed to introduce relevant evidence in rebuttal to a victim impact statement." Booth, 482 U. S., at 518 (WHITE, J., dissenting); id., at 506-507 (opinion of the Court). In this case, however, respondent has pointed to no evidence introduced at the penalty phase that he was precluded from rebutting. Rather, the prosecutor commented *823 upon evidence introduced without objection at the guilt phase of the trial and drew various inferences from that evidence. Just as the prosecutor could comment upon evidence in the record about the victim during his closing argument, so could defense counsel. In fact, defense counsel did comment upon the prosecutor's repeated reference to Haynes as "Reverend Minister." App. 45. But, like respondent's other due process claim, this issue is best addressed by the South Carolina Supreme Court on remand. Because the majority instead adopts an Eighth Amendment barrier to virtually any discussion of the victim's personal characteristics at the penalty phase of a murder trial, I respectfully dissent.

In this Court held that the Eighth Amendment prohibited a jury from considering a victim impact statement during the sentencing phase of a capital trial. The document at issue in was compiled by the Division of Parole and Probation on the basis of extensive interviews with the two murder victims' son, daughter, son-in-law, and granddaughter. In addition to evidence relating to the personal qualities of the victims themselves, the statement in described the emotional impact of the crime on the victims' family members, including their resulting sleeplessness, fear, depression, and constant painful memories. The statement also described *813 the family members' opinions about the crime, the defendant, and the proper penalty to be imposed. The majority in took the view that such information "may be wholly unrelated to the blameworthiness of a particular defendant," and could divert the capital sentencer's attention from the circumstances of the crime and the defendant's background and record, The majority noted that introduction of evidence of a victim's good character would entitle the defendant to rebut this evidence, resulting in "a `mini-trial' on the victim's character." The Court also expressed concern that the opinions of family members regarding the crime and the defendant could serve to "inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Since our decision in there has been considerable confusion in the lower courts about the precise scope of its holding. Some courts, like the South Carolina Supreme Court in this case, have read for the broad proposition that "the injection of the victim's personal characteristics into the sentencing determination" violates the Eighth Amendment. 295 S. C. 476, 484, Other courts have declined to read so broadly, holding that it does not prohibit prosecutorial argument at the penalty phase concerning the personal characteristics of the victim. See, e. g., ; See also ; I joined both dissents in see ; believing that the case was wrongly decided on its facts and rested on a misinterpretation of the Eighth Amendment and this Court's cases thereunder. Although I remain persuaded that was wrong when decided and stand ready *814 to overrule it if the Court would do so, we can reach a proper disposition in this case without such action. 's central holding that statements about the harm to a victim's family have no place in capital sentencing does not control the case before us today. At issue here are solely prosecutorial comments about the victim himself. Thus, we must decide whether to adopt a broad reading of as establishing a rigid Eighth Amendment rule eliminating virtually all consideration of the victim at the penalty phase, or a narrower reading of that decision which would allow jury consideration of information about the victim and the extent of the harm caused in arriving at its moral judgment concerning the appropriate punishment. See ("I do not interpret as foreclosing the introduction of all evidence, in whatever form, about a murder victim"). Because the Eighth Amendment itself requires "that the penalty imposed in a capital case be proportional to the harm caused and the defendant's blameworthiness," 458 U.S. I would reject a rigid Eighth Amendment rule which prohibits a sentencing jury from hearing argument or considering evidence concerning the personal characteristics of the victim. I would thus reverse the judgment of the South Carolina Supreme Court in this case. I also would decline respondent's invitation that this Court comb the record for indications that the prosecutor "misrepresented the evidence" in his closing argument or appealed to religious bias in violation of the Due Process Clause of the Fourteenth Amendment. See Brief for Respondent 21-24. Instead, I would remand the case to the South Carolina Supreme Court for that particular inquiry. I On a Saturday evening in September 1986, Richard Haynes sat peacefully on a park bench near his mother's home with a Bible and various religious items at his side. A *815 vulnerable man with a history of mental problems, Haynes called himself "Reverend Minister" and shared his religious views with those who would listen. Haynes was approached by respondent Demetrius Gathers and three companions who sat down on the bench next to him and drank beer. After Haynes told Gathers he did not wish to converse with him, Gathers and two of his companions beat Haynes brutally, and Gathers smashed a bottle over his head. App. 18-22. As Haynes lay helpless, Gathers and one of his compatriots rummaged through the various religious and other items in Haynes' possession, strewing them around on the ground as they looked for something to steal. Gathers' companions then left, but Gathers remained at the scene striking the unconscious Haynes with an umbrella and then forcing the umbrella into his anus. Gathers then departed and walked to a nearby apartment complex. Sometime later, Gathers and one other companion returned to the park with a knife. Gathers admitted that he then stabbed Haynes to death. At Gathers' trial for murder and criminal sexual conduct, Richard Haynes' mother testified without objection about her son's mental problems and his practice of carrying a Bible and other religious items and "talk[ing] to people all the time about the Lord." One of Gathers' companions testified that Haynes' Bible was clearly visible on the park bench as they approached him on the night of the murder. -27. All the items Haynes carried with him that night — including olive oil, plastic angels, rosary beads, two Bibles, a voter registration card, and the "Game Guy's Prayer" — were introduced into evidence without objection during the guilt phase of the trial. ; Record 565-567, -783, 785-787. Those items were reintroduced into evidence without objection at the penalty phase. *816 The jury convicted respondent of murder and first degree criminal sexual conduct. During his closing argument at the penalty phase, the prosecutor referred to the fact that Richard Haynes was a religious person as well as a vulnerable man with mental problems who was unable to keep a regular job. The prosecutor referred to several of the religious items that had been introduced into evidence. He also read the "Game Guy's Prayer" in its entirety, suggesting that Haynes was the sort of person who "took things as they came along" and "was prepared to deal with tragedies that he came across in his life." App. 43. The prosecutor also referred to Haynes' voter registration card found beside his body, arguing that the card "[s]peaks a lot about Reverend Minister Haynes" who "believed in this community" and believed "that in this country you could go to a public park and sit on a public bench and not be attacked by the likes of Demetrius Gathers." The sentencing jury was then given instructions which are not challenged here and returned a recommendation that the death sentence be imposed. The South Carolina Supreme Court reversed Gathers' death sentence, finding that the prosecutor's closing argument at the sentencing proceeding violated the Eighth Amendment "by focusing extensively on the personal characteristics of the victim." 295 S. C., at 482, II should not be read, in my view, to preclude prosecutorial comment which gives the sentencer a "glimpse of the life" a defendant "chose to extinguish." "The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of `circumstances of the crime' that mere mention will always be problematic." vacated on other grounds, judgment reinstated, (CA11) cert. denied, In my view, nothing in the Eighth Amendment precludes the prosecutor from conveying to the jury a sense of the unique human being whose life the defendant has taken. More fundamentally, this case illustrates the one-sided nature of the moral judgment that the Court's broad reading of would require of the capital sentencer. This Court has consistently required that a jury at the penalty phase be allowed to consider a wide range of information concerning the background of the defendant. Thus, not merely the circumstances of the crime are relevant, but as we stated in : "[T]he Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record that the defendant proffers as a basis for a sentence less than death" (emphasis in original; footnote omitted). See also Our decisions in Lockett and Eddings were based on the proposition that the decision of the capital sentencer is a profoundly moral one and must reflect the moral judgment of the community regarding the proper penalty to be inflicted on a particular individual for his or her actions. Evidence extraneous to the crime itself is deemed relevant and indeed, constitutionally so, "because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." In this case, the sentencing jury heard testimony from respondent's mother, his sister, and his cousin, all indicating that he was an affectionate and caring person. Record 1, 1187, 1199. Gathers' sixth grade teacher testified that he was a quiet and affectionate child but that he was not given sufficient guidance and discipline at home. None of this evidence was directly relevant to *818 the events of September 13, 1986, but all of it was relevant to the jury's assessment of respondent himself and his moral blameworthiness. Similarly, one of the factors that has long entered into society's conception of proper punishment is the harm caused by the defendant's actions. Thus, we have long recognized that retribution itself is a valid penological goal of the death penalty. See Indeed, we have expressly noted that while "retribution is an element of all punishments society imposes," it "clearly plays a more prominent role in a capital case." "The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender." Moreover, one essential factor in determining the defendant's culpability is the extent of the harm caused. That the harm caused by a defendant's actions is relevant to the capital sentencer's moral judgment concerning the appropriate penalty, even if the defendant did not specifically intend that harm, is a principle recognized both in the decisions of this Court and in legislative decisions concerning appropriate levels of punishment. In we held that the Eighth Amendment did not preclude imposing the death penalty on two brothers who participated substantially in their father's armed prison breakout and in a related kidnaping and robbery that resulted in four murders, even though neither defendant "took any act which he desired to, or was substantially certain would, cause death." We found that the Tisons' involvement in the crime was such that "both subjectively appreciated that their acts were likely to result in the taking of innocent life," and that "the record would support a finding of the culpable mental state of reckless indifference to human life," We noted that "reckless indifference to the value of *819 human life may be every bit as shocking to the moral sense as an `intent to kill,' " and we remanded the case to the Supreme Court of for a specific determination whether the Tisons possessed that mental state, What was critical to the defendants' eligibility for the death penalty in Tison was the harm they helped bring about: the death of four innocent human beings. In a similar manner, society punishes reckless driving differently from vehicular homicide; the distinction rests not on any difference in the defendant's mental state but on the notion that one of the legitimate concerns of any sentencer is the harm that the defendant's actions have caused. See 482 U. S., 16 ("There is nothing aberrant in a juror's inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused"). In the death penalty context, no State authorizes infliction of the penalty for attempted murder, yet the criminal defendant who has attempted to kill another human being has the same mental state as the actual killer. Indeed, as JUSTICE SCALIA noted in dissent in the difference between murder and attempted murder may often hinge on a fortuity over which the defendant has no control at all. See The only distinction is the harm to the community which results from the defendant's actions, and this distinction is deemed sufficient to support a difference in punishment between a sentence of years and the ultimate penalty. Nothing in the Eighth Amendment precludes a State, if it chooses, from "includ[ing] as a sentencing consideration the particularized harm that an individual's murder causes to the rest of society," 17 Indeed, precisely because the harm caused to society by a particular victim's death is relevant to society's moral judgment concerning the proper punishment, I would decline to read for the broad proposition that the victim's personal characteristics are irrelevant at the sentencing phase of *820 a capital trial. A rigid Eighth Amendment rule which excludes all such considerations is not supported by history or societal consensus, and it withholds information which a State may clearly deem relevant to the reasoned moral judgment of a capital sentencer. Thus, I would reverse the judgment of the South Carolina Supreme Court on this issue. In his closing argument in this case, the prosecutor focused on the heinous nature of respondent's crime. App. 40-41. The prosecutor brought the jury's attention to the fact that Richard Haynes was a religious person whose religious belongings were callously ransacked by Gathers during the attack. The prosecutor commented on some of the specific items introduced into evidence, and he read the "Game Guy's Prayer," which was found at the scene of the murder. That "Prayer," which invokes sports metaphors and stresses the virtues of being an accepting and resilient "good sport" in the game of life, was used by the prosecutor to stress the vulnerability and simple humanity of the victim. As the prosecutor argued: "Reverend Minister Haynes, we know, was a very small person. He had his mental problems. Unable to keep a regular job. And he wasn't blessed with fame or fortune." The prosecutor also commented on the victim's possession of a voter registration card at the time of his death, indicating that it "[s]peaks a lot about Reverend Minister Haynes," and exemplified the victim's "belie[f] in this community." In sum, the prosecutor stressed that the victim was an ordinary citizen who trusted that he could sit quietly on a public park bench without the risk of death. In my view, no aspect of the prosecutor's argument in this case violated the Eighth Amendment. The jury found at the guilt phase that Gathers made a conscious decision to kill another human being. Just as Gathers' own background was important to the jury's assessment of him as a "uniquely individual human bein[g]," see so information about his equally unique *821 victim was relevant to the jury's assessment of the harm he had caused and the appropriate penalty. Nothing in the Eighth Amendment precludes the community from considering its loss in assessing punishment nor requires that the victim remain a faceless stranger at the penalty phase of a capital trial. That the victim in this case was a deeply religious and harmless individual who exhibited his care for his community by religious proselytization and political participation in its affairs was relevant to the community's loss at his demise, just as society would view with grief and anger the killing of the mother or father of small children. See 16 The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed "cruel and unusual." Because neither aspect of the Eighth Amendment was offended by the prosecutor's remarks, I would reverse the judgment below. III As an alternative ground supporting the judgment below, Gathers argues that the prosecutor engaged in "manipulation of the evidence and outright fabrication" in his portrait of the victim's personal characteristics based on inferences from the "Game Guy's Prayer" and the voter registration card. Brief for Respondent 22. Gathers also contends that the prosecutor's closing argument impermissibly invited the jury to impose the death sentence on the basis of the victim's religion and political affiliation in violation of the Due Process Clause. It would indeed be improper for a prosecutor to urge that the death penalty be imposed because of the race, religion, or political affiliation of the victim. As JUSTICE WHITE wrote in dissent in "It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim's race in determining whether the death penalty is appropriate. Cf. McCleskey v. Kemp, 481 U. S. *822 279" 482 U. S., 17. See also U.S. 862, (if a State "attached the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant. due process of law would require that the jury's decision to impose death be set aside"); ; 762 F. 2d, at Evaluation of Gathers' claim requires consideration of the entire record to determine whether any allegedly erroneous or improper remarks so infected the entire proceedings with unfairness as to render the resulting sentence a denial of due process. See ; Because the "Game Guy's Prayer" was already in evidence without objection and could have been read by the jury even if the prosecutor never mentioned it, the prosecutor's reading of that document during his closing argument may constitute harmless error. Nevertheless, I would remand this case to the South Carolina Supreme Court to conduct this inquiry in the first instance. Gathers also argues that he did not have the opportunity to rebut the prosecutor's positive statements about the victim's characteristics, and thus that his death sentence violates the dictates of (due process precludes imposition of the death penalty on the basis of information in a presentence report which the defendant had no opportunity to rebut). Brief for Respondent 18-20. "No doubt a capital defendant must be allowed to introduce relevant evidence in rebuttal to a victim impact statement." 482 U. S., 18 ; 06-507 In this case, however, respondent has pointed to no evidence introduced at the penalty phase that he was precluded from rebutting. Rather, the prosecutor commented * upon evidence introduced without objection at the guilt phase of the trial and drew various inferences from that evidence. Just as the prosecutor could comment upon evidence in the record about the victim during his closing argument, so could defense counsel. In fact, defense counsel did comment upon the prosecutor's repeated reference to Haynes as "Reverend Minister." App. 45. But, like respondent's other due process claim, this issue is best addressed by the South Carolina Supreme Court on remand. Because the majority instead adopts an Eighth Amendment barrier to virtually any discussion of the victim's personal characteristics at the penalty phase of a murder trial, I respectfully dissent.

per_curiam

per_curiam

Thompson v. Louisiana

https://www.courtlistener.com/opinion/111282/thompson-v-louisiana/

https://www.courtlistener.com/api/rest/v3/clusters/111282/

1984-003

In this case, the Louisiana Supreme Court upheld the validity of a warrantless "murder scene" search of petitioner's home. Because this holding is in direct conflict with our opinion in Mincey v. Arizona, 437 U.S. 385 (1978), we reverse. I The Louisiana Supreme Court states the facts as follows: "On May 18, 1982, several deputies from the Jefferson parish Sheriff's Department arrived at [petitioner's] home in response to a report by the [petitioner's] daughter of a homicide. The deputies entered the house, made a cursory search and discovered [petitioner's] husband dead of a gunshot wound in a bedroom and the [petitioner] lying unconscious in another bedroom due to an apparent drug overdose. According to the [petitioner's] daughter, the [petitioner] had shot her husband, then ingested a quantity of pills in a suicide attempt, and then, changing her mind, called her daughter, informed her of the situation and requested help. The daughter then contacted the police. Upon their arrival, the daughter admitted them into the house and directed them to the rooms containing the [petitioner] and the victim. The deputies immediately transported the then unconscious [petitioner] to a hospital and secured the scene. Thirty-five minutes later two members of the homicide unit of the Jefferson Parish Sheriff's Office arrived and conducted a follow-up investigation of the homicide and attempted suicide. "The homicide investigators entered the residence and commenced what they described at the motion to suppress hearing as a `general exploratory search for evidence of a crime.' During their search, which lasted *19 approximately two hours, the detectives examined each room of the house." 448 So. 2d 666, 668 (1984). Petitioner was subsequently indicted for the second-degree murder of her husband. She moved to suppress three items of evidence discovered during the search, including a pistol found inside a chest of drawers in the same room as the deceased's body, a torn up note found in a wastepaper basket in an adjoining bathroom, and another letter (alleged to be a suicide note) found folded up inside an envelope containing a Christmas card on the top of a chest of drawers. All of this evidence was found in the "general exploratory search for evidence" conducted by two homicide investigators who arrived at the scene approximately 35 minutes after petitioner was sent to the hospital. See ibid. By the time those investigators arrived, the officers who originally arrived at the scene had already searched the premises for other victims or suspects. See Mincey, supra, at 392. The investigators testified that they had time to secure a warrant before commencing the search, see 448 So. 2d, at 668, and that no one had given consent to the search, see App. C to Pet. for Cert. 7-8, 16, 19-20 (transcript of testimony of Detectives Zinna and Masson at suppression hearing). The trial court originally denied petitioner's motion to suppress. However, the trial court then granted petitioner's motion for reconsideration and partially reversed its former decision, holding that the gun and the suicide letter found in the Christmas card were obtained in violation of the Fourth Amendment and therefore must be suppressed. The Louisiana Court of Appeal denied the State's application for a writ of review. A sharply divided Louisiana Supreme Court subsequently held all of the evidence seized to be admissible. II As we stated in United States v. Chadwick, 433 U.S. 1, 9 (1977), "in this area we do not write on a clean slate." In a long line of cases, this Court has stressed that "searches *20 conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). This was not a principle freshly coined for the occasion in Katz, but rather represented this Court's longstanding understanding of the relationship between the two Clauses of the Fourth Amendment.[1] See Katz, supra, at 357, nn. 18 and 19. Since the time of Katz, this Court has recognized the existence of additional exceptions. See, e. g., Donovan v. Dewey, 452 U.S. 594 (1981); United States v. MartinezFuerte, 428 U.S. 543 (1976); South Dakota v. Opperman, 428 U.S. 364 (1976). However, we have consistently reaffirmed our understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the "persons, houses, papers, and effects" of citizens. See, e. g., Welsh v. Wisconsin, 466 U.S. 740, 748-750 (1984); United States v. Place, 462 U.S. 696, 701-702 (1983); United States v. Ross, 456 U.S. 798, 824-825 (1982); Steagald v. United States, 451 U.S. 204, 211-212 (1981); Mincey, supra, at 390; Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971) (plurality opinion); Vale v. Louisiana, 399 U.S. 30, 34 (1970); Terry v. Ohio, 392 U.S. 1, 20 (1968). A Although the homicide investigators in this case may well have had probable cause to search the premises, it is undisputed *21 that they did not obtain a warrant.[2] Therefore, for the search to be valid, it must fall within one of the narrow and specifically delineated exceptions to the warrant requirement. In Mincey v. Arizona, 437 U.S. 385 (1978), we unanimously rejected the contention that one of the exceptions to the Warrant Clause is a "murder scene exception." Although we noted that police may make warrantless entries on premises where "they reasonably believe that a person within is in need of immediate aid," id., at 392, and that "they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises," ibid., we held that "the `murder scene exception' . . . is inconsistent with the Fourth and Fourteenth Amendments — that the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there." Id., at 395. Mincey is squarely on point in the instant case. B The Louisiana Supreme Court attempted to distinguish Mincey in several ways. The court noted that Mincey involved a 4-day search of the premises, while the search in this case took only two hours and was conducted on the same day as the murder. See 448 So. 2d, at 671. Although we agree that the scope of the intrusion was certainly greater in Mincey than here, nothing in Mincey turned on the length of time taken in the search or the date on which it was conducted. A 2-hour general search remains a significant intrusion on petitioner's privacy and therefore may only be conducted subject to the constraints — including the warrant requirement — of the Fourth Amendment. *22 The Louisiana Supreme Court also believed that petitioner had a "diminished" expectation of privacy in her home, thus validating a search that otherwise would have been unconstitutional. 448 So. 2d, at 671. The court noted that petitioner telephoned her daughter to request assistance. The daughter then called the police and let them in the residence. These facts, according to the court, demonstrated a diminished expectation of privacy in petitioner's dwelling and therefore legitimated the warrantless search.[3] Petitioner's attempt to get medical assistance does not evidence a diminished expectation of privacy on her part. To be sure, this action would have justified the authorities in seizing evidence under the plain-view doctrine while they were in petitioner's house to offer her assistance. In addition, the same doctrine may justify seizure of evidence obtained in the limited "victim-or-suspect" search discussed in Mincey. However, the evidence at issue here was not discovered in plain view while the police were assisting petitioner to the hospital, nor was it discovered during the "victim-or-suspect" search that had been completed by the time the homicide investigators arrived. Petitioner's call for help can hardly be seen as an invitation to the general public that would have converted her home into the sort of public place for which no warrant to search would be necessary. Therefore, the Louisiana Supreme Court's diminished-expectation-of-privacy argument fails to distinguish this case from Mincey.[4] *23 The State contends that there was a sufficient element of consent in this case to distinguish it from the facts of Mincey. The Louisiana Supreme Court's decision does not attempt to validate the search as consensual, although it attempts to support its diminished-expectation-of-privacy argument by reference to the daughter's "apparent authority" over the premises when she originally permitted the police to enter. 448 So. 2d, at 671. Because the issue of consent is ordinarily a factual issue unsuitable for our consideration in the first instance, we express no opinion as to whether the search at issue here might be justified as consensual. However, we note that both homicide investigators explicitly testified that they had received no consent to search. Any claim of valid consent in this case would have to be measured against the standards of United States v. Matlock, 415 U.S. 164 (1974), and Schneckcloth v. Bustamonte, 412 U.S. 218 (1973). III For the reasons stated above, petitioner's motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, the judgment of the Louisiana Supreme Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

In this case, the Louisiana Supreme Court upheld the validity of a warrantless "murder scene" search of petitioner's home. Because this holding is in direct conflict with our opinion in we reverse. I The Louisiana Supreme Court states the facts as follows: "On May 18, 182, several deputies from the Jefferson parish Sheriff's Department arrived at [petitioner's] home in response to a report by the [petitioner's] daughter of a homicide. The deputies entered the house, made a cursory search and discovered [petitioner's] husband dead of a gunshot wound in a bedroom and the [petitioner] lying unconscious in another bedroom due to an apparent drug overdose. According to the [petitioner's] daughter, the [petitioner] had shot her husband, then ingested a quantity of pills in a suicide attempt, and then, changing her mind, called her daughter, informed her of the situation and requested help. The daughter then contacted the police. Upon their arrival, the daughter admitted them into the house and directed them to the rooms containing the [petitioner] and the victim. The deputies immediately transported the then unconscious [petitioner] to a hospital and secured the scene. Thirty-five minutes later two members of the homicide unit of the Jefferson Parish Sheriff's Office arrived and conducted a follow-up investigation of the homicide and attempted suicide. "The homicide investigators entered the residence and commenced what they described at the motion to suppress hearing as a `general exploratory search for evidence of a crime.' During their search, which lasted *1 approximately two hours, the detectives examined each room of the house." Petitioner was subsequently indicted for the second-degree murder of her husband. She moved to suppress three items of evidence discovered during the search, including a pistol found inside a chest of drawers in the same room as the deceased's body, a torn up note found in a wastepaper basket in an adjoining bathroom, and another letter (alleged to be a suicide note) found folded up inside an envelope containing a Christmas card on the top of a chest of drawers. All of this evidence was found in the "general exploratory search for evidence" conducted by two homicide investigators who arrived at the scene approximately 35 minutes after petitioner was sent to the hospital. See By the time those investigators arrived, the officers who originally arrived at the scene had already searched the premises for other victims or suspects. See The investigators testified that they had time to secure a warrant before commencing the search, see 448 So. 2d, at and that no one had given consent to the search, see App. C to Pet. for Cert. 7-8, 16, 1- (transcript of testimony of Detectives Zinna and Masson at suppression hearing). The trial court originally denied petitioner's motion to suppress. However, the trial court then granted petitioner's motion for reconsideration and partially reversed its former decision, holding that the gun and the suicide letter found in the Christmas card were obtained in violation of the Fourth Amendment and therefore must be suppressed. The Louisiana Court of Appeal denied the State's application for a writ of review. A sharply divided Louisiana Supreme Court subsequently held all of the evidence seized to be admissible. II As we stated in United "in this area we do not write on a clean slate." In a long line of cases, this Court has stressed that "searches * conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." 38 U.S. 7, (167) This was not a principle freshly coined for the occasion in but rather represented this Court's longstanding understanding of the relationship between the two Clauses of the Fourth Amendment.[1] See at nn. 18 and 1. Since the time of this Court has recognized the existence of additional exceptions. See, e. g., 452 U.S. 54 (181); United (176); South (176). However, we have consistently reaffirmed our understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the "persons, houses, papers, and effects" of citizens. See, e. g., ; United 462 U.S. 66, (183); United 456 U.S. 78, (182); (181); at 30; (171) ; 3 U.S. 30, (170); 32 U.S. 1, (168). A Although the homicide investigators in this case may well have had probable cause to search the premises, it is undisputed *21 that they did not obtain a warrant.[2] Therefore, for the search to be valid, it must fall within one of the narrow and specifically delineated exceptions to the warrant requirement. In we unanimously rejected the contention that one of the exceptions to the Warrant Clause is a "murder scene exception." Although we noted that police may make warrantless entries on premises where "they reasonably believe that a person within is in need of immediate aid," and that "they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises," we held that "the `murder scene exception' is inconsistent with the Fourth and Fourteenth Amendments — that the warrantless search of 's apartment was not constitutionally permissible simply because a homicide had recently occurred there." at 35. is squarely on point in the instant case. B The Louisiana Supreme Court attempted to distinguish in several ways. The court noted that involved a 4-day search of the premises, while the search in this case took only two hours and was conducted on the same day as the murder. See Although we agree that the scope of the intrusion was certainly greater in than here, nothing in turned on the length of time taken in the search or the date on which it was conducted. A 2-hour general search remains a significant intrusion on petitioner's privacy and therefore may only be conducted subject to the constraints — including the warrant requirement — of the Fourth Amendment. *22 The Louisiana Supreme Court also believed that petitioner had a "diminished" expectation of privacy in her home, thus validating a search that otherwise would have been The court noted that petitioner telephoned her daughter to request assistance. The daughter then called the police and let them in the residence. These facts, according to the court, demonstrated a diminished expectation of privacy in petitioner's dwelling and therefore legitimated the warrantless search.[3] Petitioner's attempt to get medical assistance does not evidence a diminished expectation of privacy on her part. To be sure, this action would have justified the authorities in seizing evidence under the plain-view doctrine while they were in petitioner's house to offer her assistance. In addition, the same doctrine may justify seizure of evidence obtained in the limited "victim-or-suspect" search discussed in However, the evidence at issue here was not discovered in plain view while the police were assisting petitioner to the hospital, nor was it discovered during the "victim-or-suspect" search that had been completed by the time the homicide investigators arrived. Petitioner's call for help can hardly be seen as an invitation to the general public that would have converted her home into the sort of public place for which no warrant to search would be necessary. Therefore, the Louisiana Supreme Court's diminished-expectation-of-privacy argument fails to distinguish this case from[4] *23 The State contends that there was a sufficient element of consent in this case to distinguish it from the facts of The Louisiana Supreme Court's decision does not attempt to validate the search as consensual, although it attempts to support its diminished-expectation-of-privacy argument by reference to the daughter's "apparent authority" over the premises when she originally permitted the police to enter. Because the issue of consent is ordinarily a factual issue unsuitable for our consideration in the first instance, we express no opinion as to whether the search at issue here might be justified as consensual. However, we note that both homicide investigators explicitly testified that they had received no consent to search. Any claim of valid consent in this case would have to be measured against the standards of United (174), and (173). III For the reasons stated above, petitioner's motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, the judgment of the Louisiana Supreme Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Rehnquist

dissenting

New Jersey Welfare Rights Organization v. Cahill

https://www.courtlistener.com/opinion/108778/new-jersey-welfare-rights-organization-v-cahill/

https://www.courtlistener.com/api/rest/v3/clusters/108778/

1972-110

The New Jersey Legislature has enacted a statute entitled "Assistance to Families of the Working Poor," which is designed to provide grants to supplement the income of a discrete class of families with children when independent sources of income are inadequate to support the family unit. The program is completely financed by the State, and therefore need not conform to any of the strictures of the Social Security Act. The New Jersey program for assistance to the working poor does not provide financial grants to classes of children as such, as is the case under various federal plans. Instead, it provides grants to classes of families as units. The Court *622 holds that because benefits are limited to families "which consist of a household composed of two adults of the opposite sex ceremonially married to each other who have at least one minor child . . . of both, the natural child of one and adopted by the other, or a child adopted by both," the legislative scheme violates the Equal Protection Clause of the Fourteenth Amendment. The Court relies on Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), where a Louisiana statute that denied workmen's compensation benefits to an illegitimate child was invalidated. But the very language that the Court quotes from Weber shows how different this case is from that. There a disability was visited solely on an illegitimate child. Here the statute distinguishes among types of families. While the classification adopted by the New Jersey Legislature undoubtedly results in denying benefits to "families" consisting of a mother and father not ceremonially married who are living with natural children, whatever denial of benefits the classification makes is imposed equally on the parents as well as the children. Here the New Jersey Legislature has determined that special financial assistance should be given to family units that meet the statutory definition of "working poor." It does not seem to me irrational in establishing such a special program to condition the receipt of such grants on the sort of ceremonial marriage that could quite reasonably be found to be an essential ingredient of the family unit that the New Jersey Legislature is trying to protect from dissolution due to the economic vicissitudes of modern life. The Constitution does not require that special financial assistance designed by the legislature to help poor families be extended to "communes" as well. In the area of economics and social welfare the Equal Protection Clause does not prohibit a State from taking one step at a time in attempting to overcome a social ill, provided only that the classifications made by *623 the State are rational. Here the classification is based on a particular type of family unit, one of, if not the, core units of our social system. There being a rational basis for the legislative classification, the constitutionality of the law is governed by Dandridge v. Williams, 397 U.S. 471 (1970), rather than by Weber. I would affirm the judgment of the District Court.

The New Jersey Legislature has enacted a statute entitled "Assistance to Families of the Working Poor," which is designed to provide grants to supplement the income of a discrete class of families with children when independent sources of income are inadequate to support the family unit. The program is completely financed by the State, and therefore need not conform to any of the strictures of the Social Security Act. The New Jersey program for assistance to the working poor does not provide financial grants to classes of children as such, as is the case under various federal plans. Instead, it provides grants to classes of families as units. The Court *622 holds that because benefits are limited to families "which consist of a household composed of two adults of the opposite sex ceremonially married to each other who have at least one minor child of both, the natural child of one and adopted by the other, or a child adopted by both," the legislative scheme violates the Equal Protection Clause of the Fourteenth Amendment. The Court relies on where a Louisiana statute that denied workmen's compensation benefits to an illegitimate child was invalidated. But the very language that the Court quotes from Weber shows how different this case is from that. There a disability was visited solely on an illegitimate child. Here the statute distinguishes among types of families. While the classification adopted by the New Jersey Legislature undoubtedly results in denying benefits to "families" consisting of a mother and father not ceremonially married who are living with natural children, whatever denial of benefits the classification makes is imposed equally on the parents as well as the children. Here the New Jersey Legislature has determined that special financial assistance should be given to family units that meet the statutory definition of "working poor." It does not seem to me irrational in establishing such a special program to condition the receipt of such grants on the sort of ceremonial marriage that could quite reasonably be found to be an essential ingredient of the family unit that the New Jersey Legislature is trying to protect from dissolution due to the economic vicissitudes of modern life. The Constitution does not require that special financial assistance designed by the legislature to help poor families be extended to "communes" as well. In the area of economics and social welfare the Equal Protection Clause does not prohibit a State from taking one step at a time in attempting to overcome a social ill, provided only that the classifications made by *623 the State are rational. Here the classification is based on a particular type of family unit, one of, if not the, core units of our social system. There being a rational basis for the legislative classification, the constitutionality of the law is governed by rather than by Weber. I would affirm the judgment of the District Court.

Justice Rehnquist

majority

Minnesota v. Carter

https://www.courtlistener.com/opinion/118249/minnesota-v-carter/

https://www.courtlistener.com/api/rest/v3/clusters/118249/

1998-004

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer's viewing was a search that violated respondents' Fourth Amendment rights. We hold that no such violation occurred. James Thielen, a police officer in the Twin Cities' suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle's floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags. *86 After seizing the car, the police returned to apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2[1]20442 hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine. Carter and Johns were charged with conspiracy to commit a controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. §§ 152.021, subds. 1(1), 3(a), 609.05 (1996). They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several postarrest incriminating statements they had made. They argued that Thielen's initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson, 495 U.S. 91 (1990), Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen's observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals *87 held that respondent Carter did not have "standing" to object to Thielen's actions because his claim that he was predominantly a social guest was "inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs." 545 N.W.2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns' conviction, without addressing what it termed the "standing" issue. State v. Johns, No. C9-95-1765 (June 11, 1996), App. D-1, D-3 (unpublished). A divided Minnesota Supreme Court reversed, holding that respondents had "standing" to claim the protection of the Fourth Amendment because they had "`a legitimate expectation of privacy in the invaded place.' " 569 N.W.2d 169, 174 (1997) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). The court noted that even though "society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen's observations." 569 N.W.2d, at 176; see also 569 N.W.2d 180, 181 (1997). Based upon its conclusion that respondents had "standing" to raise their Fourth Amendment claims, the court went on to hold that Thielen's observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id., at 176-179. We granted certiorari, 523 U.S. 1003 (1998), and now reverse. The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of "standing" doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas. 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the *88 seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else's) Fourth Amendment rights, the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Id., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i. e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id., at 143-144, and n. 12. See also Smith v. Maryland, 442 U.S. 735, 740-741 (1979). The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment protects persons against unreasonable searches of "their persons [and] houses" and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment protects people, not places"). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that "capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas, supra, at 143. See also Rawlings v. Kentucky, 448 U.S. 98, 106 (1980). *89 The text of the Amendment suggests that its protections extend only to people in "their" houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson, 495 U.S. 91 (1990), for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said: "To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. . . . "From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend." Id., at 98-99. In Jones v. United States, 362 U.S. 257, 259 (1960), the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there "`maybe a night,' " and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant's *90 Fourth Amendment rights—is still valid, its statement that "anyone legitimately on the premises where a search occurs may challenge its legality," id., at 267, was expressly repudiated in Rakas v. Illinois, 439 U.S. 128 (1978). Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not. Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household.[*] While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business. Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700 (1987). And while it was a "home" in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his *91 own workplace. See, e. g., O'Connor v. Ortega, 480 U.S. 709 (1987). But there is no indication that respondents in this case had nearly as significant a connection to Thompson's apartment as the worker in O'Connor had to his own private office. See id., at 716-717. If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely "legitimately on the premises" as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights. Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer's observation constituted a "search." The judgments of the Supreme Court of Minnesota are accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer's viewing was a search that violated respondents' Fourth Amendment rights. We hold that no such violation occurred. James Thielen, a police officer in the Twin Cities' suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle's floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags. *86 After seizing the car, the police returned to apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2[1]20442 hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine. Carter and Johns were charged with conspiracy to commit a controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of subds. 1(1), 3(a), 609.05 They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several postarrest incriminating statements they had made. They argued that Thielen's initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen's observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals *87 held that respondent Carter did not have "standing" to object to Thielen's actions because his claim that he was predominantly a social guest was "inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs." In a separate appeal, the Court of Appeals also affirmed Johns' conviction, without addressing what it termed the "standing" issue. State v. Johns, No. C9-95-1765 App. D-1, D-3 (unpublished). A divided Minnesota Supreme Court reversed, holding that respondents had "standing" to claim the protection of the Fourth Amendment because they had "`a legitimate expectation of privacy in the invaded place.' " The court noted that even though "society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen's observations." ; see also Based upon its conclusion that respondents had "standing" to raise their Fourth Amendment claims, the court went on to hold that Thielen's observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. We granted certiorari, and now reverse. The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of "standing" doctrine, an analysis that this Court expressly rejected 20 years ago in -140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the *88 seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else's) Fourth Amendment rights, the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i. e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." at -144, and n. 12. See also The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment protects persons against unreasonable searches of "their persons [and] houses" and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that "capacity to claim the protection of the Fourth Amendment depends upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." at See also *89 The text of the Amendment suggests that its protections extend only to people in "their" houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said: "To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. "From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend." In the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there "`maybe a night,' " and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant's *90 Fourth Amendment rights—is still valid, its statement that "anyone legitimately on the premises where a search occurs may challenge its legality," was expressly repudiated in Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not. Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household.[*] While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business. Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." New And while it was a "home" in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his *91 own workplace. See, e. g., But there is no indication that respondents in this case had nearly as significant a connection to Thompson's apartment as the worker in O'Connor had to his own private office. See If we regard the overnight guest in as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely "legitimately on the premises" as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights. Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer's observation constituted a "search." The judgments of the Supreme Court of Minnesota are accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Justice Marshall

dissenting

Postal Service v. Council of Greenburgh Civic Assns.

https://www.courtlistener.com/opinion/110549/postal-service-v-council-of-greenburgh-civic-assns/

https://www.courtlistener.com/api/rest/v3/clusters/110549/

1980-137

When the Framers of the Constitution granted Congress the authority "[t]o establish Post Offices and Post Roads," Art. I, § 8, cl. 7, they placed the powers of the Federal Government behind a national communication service. Protecting the economic viability and efficiency of that service remains a legitimate and important congressional objective. This case involves a statute defended on that ground, but I believe it is unnecessary for achieving that purpose and inconsistent with the underlying commitment to communication. The challenged statute, 18 U.S. C. § 1725, prohibits anyone from knowingly placing unstamped "mailable matter" in any box approved by the United States Postal Service for receiving or depositing material carried by the Postal Service. Violators may be punished with fines of up to $300 for each offense. In this case, appellee civic associations claimed, and *143 the District Court agreed, that this criminal statute unreasonable restricts their First Amendment right of free expression. The Court today upholds the statute on the theory that its focus—the letterbox situated on residential property—is not a public forum to which the First Amendment guarantees access. I take exception to the result, the analysis, and the premise that private persons lose their prerogatives over the letterboxes they own and supply for mail service. First, I disagree with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is contentbased, see ante, at 132-133, and reasonable, ante, at 131, n. 7. Even if the Postal Service were not a public forum, which, as I later suggest, I do not accept, the statute advanced in its aid is a law challenged as an abridgment of free expression. Appellees seek to carry their own circulars and to deposit them in letterboxes owned by private persons who use them to receive mail, and challenge the criminal statute forbidding this use of private letterboxes. The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540 (1980); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cameron v. Johnson, 390 U.S. 611, 616-617 (1968); Thornhill v. Alabama, 310 U.S. 88, 96, 104-105 (1940). That appellee civic associations enjoy the First Amendment right of free expression cannot be doubted; both their purposes and their practices fall within the core of the First Amendment's protections. We have long recognized the constitutional rights of groups which seek, as appellees do, to "communicate ideas, positions on local issues, and civic information to their constituents"[1] through written handouts *144 and thereby to promote the free discussion of governmental affairs so central to our democracy. See, e. g., Martin v. City of Struthers, 319 U.S. 141, 146-147 (1943); Schneider v. State, 308 U.S. 147 (1939); Lovell v. Griffin, 303 U.S. 444 (1938). By traveling door to door to hand-deliver their messages to the homes of community members, appellees employ the method of written expression most accessible to those who are not powerful, established, or well financed. "Door to door distribution of circulars is essential to the poorly financed causes of little people." Martin v. City of Struthers, supra, at 146. See Schneider v. State, supra, at 164. Moreover, "[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). And such freedoms depend on liberty to circulate; "`indeed, without circulation, the publication would be of little value.'" Talley v. California, 362 U.S. 60, 64 (1960), quoting Lovell v. Griffin, supra, at 452. Countervailing public interests, such as protection against fraud and preservation of privacy, may warrant some limitation on door-to-door solicitation and canvassing. But we have consistently held that nay such restrictions, to be valid, must be narrowly drawn "`in such a manner as not to intrude upon the rights of free speech.'" Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 616 (1976), quoting Thomas v. Collins, 323 U.S. 516, 540-541 (1945). Consequently, I cannot agree with the Court's conclusion, ante, at 132-133, that we need not ask whether the ban against placing such messages in letterboxes is a restriction on appellees' free expression rights. Once appellees are at the doorstep, only § 1725 restricts them from placing their circulars in the box provided by the resident. The District Court determined after an evidentiary hearing that only by placing their circulars in the letterboxes may appellees be certain that their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without *145 notifying would-be burglars that no one has returned home to remove items from doorways or stoops. 490 F. Supp. 157, 160-163 (1980). The court concluded that the costs and delays of mail service put the mails out of appellees' reach, and that other alternatives, such as placing their circulars in doorways, are "much less satisfactory." Id., at 160.[2] We have in the past similarly recognized the burden placed on First Amendment rights when the alternative channels of communication involve more cost, less autonomy, and reduced likelihood of reaching the intended audience. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977). I see no ground to disturb these factual determinations of the trier of fact. And, given these facts, the Postal Service bears a heavy burden to show that its interests are legitimate and substantially served by the restriction of appellees' freedom of expression. See, e. g., Hynes v. Mayor and Council of the Borough of Oradell, supra, at 617-618; Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961); Marsh v. Alabama, 326 U.S. 501, 509 (1946). Although the majority does not rule that the trial court's findings were clearly erroneous, as would be required to set them aside, the Court finds persuasive the interests asserted by the Postal Service in defense of the statute. Those interests—"protect[ing] mail revenues while at the same time facilitating the secure and efficient delivery of the mails," ante, at 129—are indeed both legitimate and important. But mere assertion of an important, legitimate interest does not satisfy the requirement that the challenged restriction specifically and precisely serve that end. See Hynes v. Mayor and Council of the Borough of *146 Oradell, supra. See also Cox v. Louisiana, 379 U.S. 536, 557-558 (1965) (restriction must be applied uniformly and nondiscriminatorily). Here, the District Court concluded that the Postal Service "has not shown that failure to enforce the statute as to [appellees] would result in a substantial loss of revenue, or a significant reduction in the government's ability to protect the mails by investigating and prosecuting mail theft, mail fraud, or unauthorized private mail delivery service." 490 F. Supp., at 163.[3] In light of this failure of proof, I cannot join the Court's conclusion that the Federal Government may thus curtail appellees' ability to inform community residents about local civic matters. That decision, I fear, threatens a departure from this Court's belief that free expression, as "the matrix, the indispensable condition, of nearly every other form of freedom," Palko v. Connecticut, 302 U.S. 319, 327 (1937), must not yield unnecessarily before such governmental interests as economy or efficiency. Certainly, free expression should not have to yield here, where the intruding statute has seldom been enforced.[4] As the exceptions created *147 by the Postal Service itself demonstrate,[5] the statute's asserted purposes easily could be advanced by less intrusive alternatives, such as a nondiscriminatory permit requirement for depositing unstamped circulars in letterboxes.[6] Therefore, I would find 18 U.S. C. § 1725 constitutionally defective. Even apart from the result in this case, I must differ with the Court's use of the public forum concept to avoid application of the First Amendment. Rather than a threshold barrier that must be surmounted before reaching the terrain of the First Amendment, the concept of a public forum has more properly been used to open varied governmental locations to equal public access for free expression, subject to the constraints on time, place, or manner necessary to preserve the governmental function. E. g., Grayned v. City of Rockford, 408 U. S., at 115-117 (area around public school); Chicago Area Military Project v. Chicago, 508 F.2d 921 (CA7) (city airport), cert. denied, 421 U.S. 992 (1975); Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (CA2) (welfare office waiting room), cert. denied sub nom. Lavine v. Albany Welfare Rights Organization, 419 U.S. 838 (1974); *148 Wolin v. Port of New York Authority, 392 F.2d 83 (CA2) (port authority), cert. denied, 393 U.S. 940 (1968); Reilly v. Noel, 384 F. Supp. 741 (RI 1974) (rotunda of courthouse). See generally Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974); Stone, Fora Americana: Speech in Public Places, S. Ct. Rev. 233, 251-252 (1974). These decisions apply the public forum concept to secure the First Amendment's commitment to expression unfettered by governmental designation of its proper scope, audience, or occasion. I believe these precedents support my conclusion that appellees should prevail in their First Amendment claim. The traditional function of the mails led this Court to embrace Justice Holmes' statement that "`[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues . . . .'" Lamont v. Postmaster General, 381 U.S. 301, 305 (1965), quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting). Given its pervasive and traditional use as purveyor of written communication, the Postal Service, I believe, may properly be viewed as a public forum. The Court relies on easily distinguishable cases in reaching the contrary conclusion. For the Postal Service's very purpose is to facilitate communication, which surely differentiates it from the military bases, jails, and mass transportation discussed in cases relied on by the Court, ante, at 129-130.[7] Cf. Tinker v. Des Moines Independent School *149 Dist., 393 U.S. 503, 512 (1969). Drawing from the exceptional cases, where speech has been limited for special reasons, does not strike me as commendable analysis. The inquiry in our public forum cases has instead asked whether "the manner of expression is basically incompatible *150 with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U. S., at 116. Compare Grayned v. City of Rockford (restriction on speech permissible near school while in session) with Tinker v. Des Moines Independent School Dist., supra (symbolic speech protected even during school hours); Cameron v. Johnson, 390 U.S. 611 (1968) (restriction on picketing permitted where limited to entrance of courthouse), with Brown v. Louisiana, 383 U.S. 131 (1966) (silent protest in library protected); Adderley v. Florida, 385 U.S. 39 (1966) (protest near jailyard inconsistent with jail purposes), with Edwards v. South Carolina, 372 U.S. 229 (1963) (protest permitted on state capitol grounds). Assuming for the moment that the letterboxes, as "authorized depositories," are under governmental control and thus part of the governmental enterprise, their purpose is hardly incompatible with appellees' use. For the letterboxes are intended to receive written communication directed to the residents and to protect such materials from the weather or the intruding eyes of would-be burglars. Reluctance to treat the letterboxes as public forums might stem not from the Postal Service's approval of their form but instead from the fact that their ownership and use remain in the hands of private individuals.[8] Even that hesitation, I should think, would be misguided, for those owners necessarily retain the right to receive information as a counterpart of the right of speakers to speak. Kleindienst v. Mandel, 408 U.S. 753, 762-765 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390 (1969); Lamont v. Postmaster General, supra, at 307; Martin v. City of Struthers, 319 U. S., at 143. Cf. Procunier v. Martinez, 416 U.S. 396, 408 (1974) (communication by letter depends on receipt by addressee). On that basis alone, I would doubt the validity of 18 U.S. C. § 1725, for it deprives residents of the information *151 which civic groups or individuals may wish to deliver to these private receptacles.[9] I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier—and then the doorway, or even the room inside could fall within Postal Service control.[10] Instead of starting with the scope of governmental control, I would adhere to our usual analysis which looks to whether the exercise of a First Amendment right is burdened by the challenged governmental action, and then upholds that action only where it is necessary to advance a substantial and legitimate governmental interest. In my view, the statute criminalizing the placement of hand-delivered civic association notices in letterboxes fails this test. The brute force of the criminal sanction and other powers of the Government, I believe, may be *152 deployed to restrict free expression only with greater justification. I dissent.

When the Framers of the Constitution granted Congress the authority "[t]o establish Post Offices and Post Roads," Art. I, 8, cl. 7, they placed the powers of the Federal Government behind a national communication service. Protecting the economic viability and efficiency of that service remains a legitimate and important congressional objective. This case involves a statute defended on that ground, but I believe it is unnecessary for achieving that purpose and inconsistent with the underlying commitment to communication. The challenged statute, 18 U.S. C. 1725, prohibits anyone from knowingly placing unstamped "mailable matter" in any box approved by the United s Postal Service for receiving or depositing material carried by the Postal Service. Violators may be punished with fines of up to $300 for each offense. In this case, appellee civic associations claimed, and *143 the District Court agreed, that this criminal statute unreasonable restricts their First Amendment right of free expression. The Court today upholds the statute on the theory that its focus—the letterbox situated on residential property—is not a public forum to which the First Amendment guarantees access. I take exception to the result, the analysis, and the premise that private persons lose their prerogatives over the letterboxes they own and supply for mail service. First, I disagree with the Court's assumption that if no public forum is involved, the only First Amendment challenges to be considered are whether the regulation is contentbased, see ante, at 132-133, and reasonable, ante, at 131, n. 7. Even if the Postal Service were not a public forum, which, as I later suggest, I do not accept, the statute advanced in its aid is a law challenged as an abridgment of free expression. Appellees seek to carry their own circulars and to deposit them in letterboxes owned by private persons who use them to receive mail, and challenge the criminal statute forbidding this use of private letterboxes. The question, then, is whether this statute burdens any First Amendment rights enjoyed by appellees. If so, it must be determined whether this burden is justified by a significant governmental interest substantially advanced by the statute. See Consolidated Edison ; ; ; That appellee civic associations enjoy the First Amendment right of free expression cannot be doubted; both their purposes and their practices fall within the core of the First Amendment's protections. We have long recognized the constitutional rights of groups which seek, as appellees do, to "communicate ideas, positions on local issues, and civic information to their constituents"[1] through written handouts *144 and thereby to promote the free discussion of governmental affairs so central to our democracy. See, e. g., ; ; By traveling door to door to hand-deliver their messages to the homes of community members, appellees employ the method of written expression most accessible to those who are not powerful, established, or well financed. "Door to door distribution of circulars is essential to the poorly financed causes of little people." See Moreover, "[f]reedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." And such freedoms depend on liberty to circulate; "`indeed, without circulation, the publication would be of little value.'" quoting Countervailing public interests, such as protection against fraud and preservation of privacy, may warrant some limitation on door-to-door solicitation and canvassing. But we have consistently held that nay such restrictions, to be valid, must be narrowly drawn "`in such a manner as not to intrude upon the rights of free speech.'" quoting -541 Consequently, I cannot agree with the Court's conclusion, ante, at 132-133, that we need not ask whether the ban against placing such messages in letterboxes is a restriction on appellees' free expression rights. Once appellees are at the doorstep, only 1725 restricts them from placing their circulars in the box provided by the resident. The District Court determined after an evidentiary hearing that only by placing their circulars in the letterboxes may appellees be certain that their messages will be secure from wind, rain, or snow, and at the same time will alert the attention of the residents without *145 notifying would-be burglars that no one has returned home to remove items from doorways or stoops. The court concluded that the costs and delays of mail service put the mails out of appellees' reach, and that other alternatives, such as placing their circulars in doorways, are "much less satisfactory."[2] We have in the past similarly recognized the burden placed on First Amendment rights when the alternative channels of communication involve more cost, less autonomy, and reduced likelihood of reaching the intended audience. Linmark Associates, I see no ground to disturb these factual determinations of the trier of fact. And, given these facts, the Postal Service bears a heavy burden to show that its interests are legitimate and substantially served by the restriction of appellees' freedom of expression. See, e. g., Hynes v. Mayor and Council of the Borough of ; Konigsberg v. Bar of California, ; Although the majority does not rule that the trial court's findings were clearly erroneous, as would be required to set them aside, the Court finds persuasive the interests asserted by the Postal Service in defense of the statute. Those interests—"protect[ing] mail revenues while at the same time facilitating the secure and efficient delivery of the mails," ante, at 129—are indeed both legitimate and important. But mere assertion of an important, legitimate interest does not satisfy the requirement that the challenged restriction specifically and precisely serve that end. See Hynes v. Mayor and Council of the Borough of *146 See also Here, the District Court concluded that the Postal Service "has not shown that failure to enforce the statute as to [appellees] would result in a substantial loss of revenue, or a significant reduction in the government's ability to protect the mails by investigating and prosecuting mail theft, mail fraud, or unauthorized private mail delivery service."[3] In light of this failure of proof, I cannot join the Court's conclusion that the Federal Government may thus curtail appellees' ability to inform community residents about local civic matters. That decision, I fear, threatens a departure from this Court's belief that free expression, as "the matrix, the indispensable condition, of nearly every other form of freedom," (17), must not yield unnecessarily before such governmental interests as economy or efficiency. Certainly, free expression should not have to yield here, where the intruding statute has seldom been enforced.[4] As the exceptions created *147 by the Postal Service itself demonstrate,[5] the statute's asserted purposes easily could be advanced by less intrusive alternatives, such as a nondiscriminatory permit requirement for depositing unstamped circulars in letterboxes.[6] Therefore, I would find 18 U.S. C. 1725 constitutionally defective. Even apart from the result in this case, I must differ with the Court's use of the public forum concept to avoid application of the First Amendment. Rather than a threshold barrier that must be surmounted before reaching the terrain of the First Amendment, the concept of a public forum has more properly been used to open varied governmental locations to equal public access for free expression, subject to the constraints on time, place, or manner necessary to preserve the governmental function. E. g., U. S., at -117 ; Chicago Area Military (CA7) (city airport), cert. denied, ; Albany Welfare Rights 4 F.2d 1319 (CA2) (welfare office waiting room), cert. denied sub nom. ; *148 (CA2) (port authority), cert. denied, 3 U.S. 940 ; See generally ; Stone, Fora Americana: Speech in Public Places, S. Ct. Rev. 233, 251-252 These decisions apply the public forum concept to secure the First Amendment's commitment to expression unfettered by governmental designation of its proper scope, audience, or occasion. I believe these precedents support my conclusion that appellees should prevail in their First Amendment claim. The traditional function of the mails led this Court to embrace Justice Holmes' statement that "`[t]he United s may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues'" quoting United s ex rel. Milwaukee Social Democratic Pub. Given its pervasive and traditional use as purveyor of written communication, the Postal Service, I believe, may properly be viewed as a public forum. The Court relies on easily distinguishable cases in reaching the contrary conclusion. For the Postal Service's very purpose is to facilitate communication, which surely differentiates it from the military bases, jails, and mass transportation discussed in cases relied on by the Court, ante, at 129-130.[7] Cf. 3 U.S. 503, Drawing from the exceptional cases, where speech has been limited for special reasons, does not strike me as commendable analysis. The inquiry in our public forum cases has instead asked whether "the manner of expression is basically incompatible *150 with the normal activity of a particular place at a particular time." Compare (restriction on speech permissible near school while in session) with Tinker v. Des Moines Independent School ; with ; with Assuming for the moment that the letterboxes, as "authorized depositories," are under governmental control and thus part of the governmental enterprise, their purpose is hardly incompatible with appellees' use. For the letterboxes are intended to receive written communication directed to the residents and to protect such materials from the weather or the intruding eyes of would-be burglars. Reluctance to treat the letterboxes as public forums might stem not from the Postal Service's approval of their form but instead from the fact that their ownership and use remain in the hands of private individuals.[8] Even that hesitation, I should think, would be misguided, for those owners necessarily retain the right to receive information as a counterpart of the right of speakers to speak. ; Red Lion Broadcasting ; ; Cf. On that basis alone, I would doubt the validity of 18 U.S. C. 1725, for it deprives residents of the information *151 which civic groups or individuals may wish to deliver to these private receptacles.[9] I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier—and then the doorway, or even the room inside could fall within Postal Service control.[10] Instead of starting with the scope of governmental control, I would adhere to our usual analysis which looks to whether the exercise of a First Amendment right is burdened by the challenged governmental action, and then upholds that action only where it is necessary to advance a substantial and legitimate governmental interest. In my view, the statute criminalizing the placement of hand-delivered civic association notices in letterboxes fails this test. The brute force of the criminal sanction and other powers of the Government, I believe, may be *152 deployed to restrict free expression only with greater justification. I dissent.

per_curiam

per_curiam

Hutto v. Ross

https://www.courtlistener.com/opinion/109554/hutto-v-ross/

https://www.courtlistener.com/api/rest/v3/clusters/109554/

1976-009

In March 1972, in Johnson County, Ark., respondent was charged by information with the crime of embezzlement. With the assistance of counsel, respondent entered into plea negotiations with the prosecuting attorney, and the parties reached an agreement that respondent would enter a plea of guilty on the understanding that the prosecutor would recommend a 15-year prison sentence, with 10 years suspended. Approximately two weeks later, the prosecuting attorney asked respondent's counsel whether respondent would be willing to make a statement concerning the crimes.[1] Although counsel advised respondent of his Fifth Amendment privilege and informed him that the terms of the negotiated plea bargain were available regardless of his willingness to comply with the prosecuting attorney's request, the respondent agreed to make a statement confessing to the crime charged. The record discloses that the statement was *29 made under oath in the office of respondent's counsel, with counsel present, and after respondent had been advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).[2] Respondent subsequently withdrew from the plea bargain, retained new counsel, and demanded a jury trial. The trial court ruled, after hearing evidence outside the presence of the jury, that respondent had confessed voluntarily. The statement was admitted at trial, and respondent was convicted and sentenced to 21 years' imprisonment. On appeal, the Arkansas Supreme Court affirmed. Ross v. State, 257 Ark. 44, 514 S.W.2d 409 (1974). This Court denied certiorari. 421 U.S. 931 (1975). Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Arkansas challenging the state court's finding of voluntariness. 28 U.S. C. § 2254. The District Court held an evidentiary hearing, and on May 23, 1975, denied the petition, agreeing with the state court that the confession was voluntary and therefore admissible. Mobley ex rel. Ross v. Meek, 394 F. Supp. 1219 (1975). The Court of Appeals for the Eighth Circuit reversed, finding the statement inadmissible because "it . . . was made in connection with an offer to plead guilty and after a [plea] bargain had been agreed upon." 531 F.2d 924, 926 (1976). It made no difference, in the court's view, that the confession was not an express precondition of the plea bargain; the confession became "part and parcel" of the plea bargain because "[the] confession would [not] have been made at the request of the prosecution but for the plea bargain." Ibid. (emphasis added). Since the plea bargain *30 had not been executed, the court found the confession involuntary and therefore inadmissible. The only question in this case is whether a confession is per se inadmissible in a criminal trial because it was made subsequent to an agreed upon plea bargain that did not call for such a confession.[3] We conclude that the Court of Appeals erred when it held that any statement made as a result of a plea bargain is inadmissible. The Court of Appeals reasoned that respondent's confession was involuntary because it was made "as a result of the plea bargain" and would not have been made "but for the plea bargain." Id., at 927, 926. But causation in that sense has never been the test of voluntariness. See Brady v. United States, 397 U.S. 742, 749-750 (1970). The test is whether the confession was " `extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.' " Bram v. United States, 168 U.S. 532, 542-543 (1897); see Brady v. United States, supra, at 753. The existence of the bargain may well have entered into respondent's decision to give a statement, but counsel made it clear to respondent that he could enforce the terms of the plea bargain whether or not he confessed. The confession thus does not appear to have been the result of " `any direct or implied promises' " or any coercion on the part of the prosecution, and was not involuntary. Bram v. United States, supra, at 542-543. *31 The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. MR. JUSTICE STEWART dissents. Agreeing with the reasoning of the Court of Appeals, he would affirm its judgment. It is so ordered.

In March 1972, in Johnson County, Ark., respondent was charged by information with the crime of embezzlement. With the assistance of counsel, respondent entered into plea negotiations with the prosecuting attorney, and the parties reached an agreement that respondent would enter a plea of guilty on the understanding that the prosecutor would recommend a 15-year prison sentence, with 10 years suspended. Approximately two weeks later, the prosecuting attorney asked respondent's counsel whether respondent would be willing to make a statement concerning the crimes.[1] Although counsel advised respondent of his Fifth Amendment privilege and informed him that the terms of the negotiated plea bargain were available regardless of his willingness to comply with the prosecuting attorney's request, the respondent agreed to make a statement confessing to the crime charged. The record discloses that the statement was *29 made under oath in the office of respondent's counsel, with counsel present, and after respondent had been advised of his rights under[2] Respondent subsequently withdrew from the plea bargain, retained new counsel, and demanded a jury trial. The trial court ruled, after hearing evidence outside the presence of the jury, that respondent had confessed voluntarily. The statement was admitted at trial, and respondent was convicted and sentenced to 21 years' imprisonment. On appeal, the Arkansas Supreme Court affirmed. This Court denied certiorari. Respondent then filed a petition for a writ of habeas corpus in the United District Court for the Western District of Arkansas challenging the state court's finding of voluntariness. 28 U.S. C. 2254. The District Court held an evidentiary hearing, and on May 23, denied the petition, agreeing with the state court that the confession was voluntary and therefore admissible. Mobley ex rel. The Court of Appeals for the Eighth Circuit reversed, finding the statement inadmissible because "it was made in connection with an offer to plead guilty and after a [plea] bargain had been agreed upon." It made no difference, in the court's view, that the confession was not an express precondition of the plea bargain; the confession became "part and parcel" of the plea bargain because "[the] confession would [not] have been made at the request of the prosecution but for the plea bargain." Since the plea bargain *30 had not been executed, the court found the confession involuntary and therefore inadmissible. The only question in this case is whether a confession is per se inadmissible in a criminal trial because it was made subsequent to an agreed upon plea bargain that did not call for such a confession.[3] We conclude that the Court of Appeals erred when it held that any statement made as a result of a plea bargain is inadmissible. The Court of Appeals reasoned that respondent's confession was involuntary because it was made "as a result of the plea bargain" and would not have been made "but for the plea bargain." at 927, But causation in that sense has never been the test of voluntariness. See The test is whether the confession was " `extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.' " ; see The existence of the bargain may well have entered into respondent's decision to give a statement, but counsel made it clear to respondent that he could enforce the terms of the plea bargain whether or not he confessed. The confession thus does not appear to have been the result of " `any direct or implied promises' " or any coercion on the part of the prosecution, and was not involuntary. at *31 The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. MR. JUSTICE STEWART dissents. Agreeing with the reasoning of the Court of Appeals, he would affirm its judgment. It is so ordered.

Justice Scalia

dissenting

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

When we interpret a treaty, we accord the judgments of our sister signatories "`considerable weight.'" Air France v. Saks, 470 U.S. 392, 404 (1985). True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. See, e. g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173-174 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550-551 (1991); Saks, supra, at 404. Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations' courts have no role in enforcing. See Atkins v. Virginia, 536 U.S. 304, 316-317, n. 21 (2002) (whether the Eighth Amendment prohibits execution of the mentally retarded); Lawrence v. Texas, 539 U.S. 558, 576-577 (2003) (whether the Fourteenth Amendment prohibits the criminalization of homosexual conduct). One would have thought that foreign courts' interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant. The Court's new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today's holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent. I The Court holds that an airline's mere inaction can constitute an "accident" within the meaning of the Warsaw Convention. *659 Ante, at 654-657. It derives this principle from our definition of "accident" in Saks as "an unexpected or unusual event or happening that is external to the passenger." 470 U.S., at 405. The Court says this definition encompasses failures to act like the flight attendant's refusal to reseat Hanson in the face of a request for assistance. That is far from clear. The word "accident" is used in two distinct senses. One refers to something that is unintentional, not "on purpose" — as in, "the hundred typing monkeys' verbatim reproduction of War and Peace was an accident." The other refers to an unusual and unexpected event, intentional or not: One may say he has been involved in a "train accident," for example, whether or not the derailment was intentionally caused. As the Court notes, ante, at 651, n. 6, Saks adopted the latter definition rather than the former. That distinction is crucial because, while there is no doubt that inaction can be an accident in the former sense ("I accidentally left the stove on"), whether it can be so in the latter sense is questionable. Two of our sister signatories have concluded that it cannot. In Deep Vein Thrombosis and Air Travel Group Litigation, [2004] Q. B. 234, England's Court of Appeal, in an opinion by the Master of the Rolls that relied heavily on Abramson v. Japan Airlines Co., 739 F.2d 130 (CA3 1984), and analyzed more than a half-dozen other non-English decisions, held as follows: "A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis *660 of an accident." [2004] Q. B., at 247, ¶ 25 (Lord Phillips, M. R.). Six months later, the appellate division of the Supreme Court of Victoria, Australia, in an opinion that likewise gave extensive consideration to American and other foreign decisions, agreed: "The allegations in substance do no more than state a failure to do something, and this cannot be characterised as an event or happening, whatever be the concomitant background to that failure to warn or advise. That is not to say that a failure to take a specific required step in the course of flying an aircraft, or in picking up or setting down passengers, cannot lead to an event or happening of the requisite unusual or unexpected kind and thus be an accident for the purpose of the article. A failure by a pilot to use some device in the expected and correct manner, such as a failure to let down the landing wheels or a chance omission to adjust the level of pressurisation, may lead, as has been held, to an accident contemplated by Article 17, but I would venture to suggest that it is not the failure to take the step which is properly to be characterised as an accident but rather its immediate and disastrous consequence whether that be the dangerous landing on the belly of the aircraft or an immediate unexpected and dangerous drop in pressurisation." Qantas Ltd. v. Povey, [2003] VSCA 227, ¶ 17, 2003 WL 23000692 (Dec. 23, 2003) (Ormiston, J. A.). We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently. (The Warsaw Convention's preamble specifically acknowledges "the advantage of regulating in a uniform manner the conditions of . . . the liability *661 of the carrier." 49 Stat. 3014 (emphasis added).) Finally, even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration. The Court nonetheless dismisses Deep Vein Thrombosis and Povey in a footnote responding to this dissent. Ante, at 655-656, n. 9. As to the former, it claims (choosing its words carefully) that the "conclusion" it reaches is "not inconsistent" with that case. Ante, at 655 (emphasis added). The reader should not think this to be a contention that the Master of the Rolls' opinion might be read to agree with today's holding that inaction can constitute an "accident." (To repeat the conclusion of that opinion: "Inaction is the antithesis of an accident." [2004] Q. B., at 247, ¶ 25.) What it refers to is the fact that the Master of the Rolls distinguished the Court of Appeals' judgment below (announced in an opinion that assumed inaction was involved, but did not at all discuss the action-inaction distinction) on the ground that action was involved — namely, "insistence that [Hanson] remain seated in the area exposed to smoke." Id., ¶ 50.[1] As I explain below, see Part II, infra, that theory does not quite work because, *662 in fact, the flight attendant did not insist that Hanson remain seated. But we can ignore this detail for the time being. The point is that the English court thought Husain could recover, not because the action-inaction distinction was irrelevant, but because, even though action was indispensable, it had in fact occurred. The Court charts our course in exactly the opposite direction, spending three pages explaining why the action-inaction distinction is irrelevant. See ante, at 654-657. If the Court agrees with the Master of the Rolls that this case involves action, why does it needlessly place us in conflict with the courts of other signatories by deciding the then-irrelevant issue of whether inaction can constitute an accident? It would suffice to hold that our case involves action and end the analysis there. Whether inaction can constitute an accident under the Warsaw Convention is a significant issue on which international consensus is important; whether Husain can recover for her husband's death in this one case is not. As they stand, however, the core holdings of this case and Deep Vein Thrombosis — their rationes decidendi — are not only not "not inconsistent"; they are completely opposite.[2] *663 I would follow the holdings of Deep Vein Thrombosis and Povey, since the Court's analysis today is no more convincing than theirs. Merely pointing to dictionaries that define "`event'" as an "`occurrence'" or "`[s]omething that happens,'" ante, at 655, hardly resolves the problem; it only reformulates one question (whether "accident" includes nonevents) into an equivalent one (whether "accident" includes nonoccurrences and nonhappenings). Equally unavailing is the reliance, ante, at 656-657, on Article 25 of the Warsaw Convention (which lifts liability caps for injury caused by a "default" of the airline equivalent to willful misconduct) and Article 20 (which precludes the airline's due-care defense if it fails to take "all necessary measures" to avoid the injury). The Court's analytical error in invoking these provisions is to assume that the inaction these provisions contemplate is the accident itself. The treaty imposes no such requirement. If a pilot negligently forgets to lower the landing gear, causing the plane to crash and killing all passengers on board, then recovery is presumptively available (because the crash that caused the deaths is an accident), and the due-care defense is inapplicable (because the pilot's negligent omission also caused the deaths), even though the omission is not the accident. Similarly, if a flight attendant fails to prevent the boarding of an individual whom she knows to be a terrorist, and who later shoots a passenger, the damages cap might be lifted even though the accident (the shooting) and the default (the failure to prevent boarding) do not coincide. Without the invented restriction that the Article 20 or 25 default be the accident itself, the Court's argument based on those provisions loses all force. *664 As for the Court's hypothetical of the crew that refuses to divert after a passenger collapses, ante, at 656: This would be more persuasive as a reductio ad absurdum if the Eleventh Circuit had not already ruled out Article 17 liability in substantially these very circumstances. See Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1517-1522, 1527-1528 (1997). A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an "accident." Whatever that term means, it certainly does not equate to "outrageous conduct that causes grievous injury." It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue. See Tseng, 525 U. S., at 170-171. Unless there has been an accident, there is no liability, whether the claim is trivial, cf. Lee v. American Airlines Inc., 355 F.3d 386, 387 (CA5 2004) (suit for "loss of a `refreshing, memorable vacation'"), or cries out for redress. Were we confronting the issue in the first instance, perhaps the Court could persuade me to its view. But courts in two other countries have already rejected it, and their reasoning is no less compelling than the Court's. I would follow Deep Vein Thrombosis and Povey and hold that mere inaction cannot be an "accident" under Article 17. II Respondents argue that, even if the Convention distinguishes action from inaction, this case involves sufficient elements of action to support recovery. That argument is not implausible; as noted earlier, the court in Deep Vein Thrombosis suggested that "[t]he refusal of the attendant to move [Hanson] could be described as insistence that he remain seated in the area exposed to smoke." [2004] Q. B., at 254, *665 ¶ 50. I cannot agree with this analysis, however, because it miscomprehends the facts of this case. Preliminarily, I must note that this was not the rationale of the District Court. That court consistently referred to the relevant "accident" not as the flight attendant's insistence that Hanson remain seated, but as her "failure" or "refusal" to reseat him. See 116 F. Supp. 2d 1121, 1131-1135 (ND Cal. 2000). Its findings of fact were infected by its erroneous legal assumption that Article 17 makes no distinction between action and inaction. The only question is whether we can nonetheless affirm on the ground that, since there was action in any event, this error was harmless. It was not. True, in response to the first request, the flight attendant insisted that Husain and her husband "`have a seat.'" Id., at 1125. This insistence might still have been implicit in her response to the second request. But these responses were both given while the plane was still on the ground, preparing to take off. The flight attendant's response to Husain's third request — made once the plane was in the air and other passengers had started smoking — was quite different. She did not insist that Husain and her husband remain seated; on the contrary, she invited them to walk around the cabin in search of someone willing to switch. That the flight attendant explicitly refused Husain's pleas for help after the third request, rather than simply ignoring them, does not transform her inaction into action. The refusal acknowledged her inaction, but it was the inaction, not the acknowledgment, that caused Hanson's death. Unlike the previous responses, the third was a mere refusal to assist, and so cannot be the basis for liability under Article 17. The District Court's failure to make the distinction between the flight attendant's pretakeoff responses and her in-flight response undermines its decision in two respects. First, the court's findings as to airline and industry policy did not distinguish between reseating a passenger while in flight and reseating a passenger while still on the ground *666 preparing to take off. In fact, some of the evidence on this point specifically related only to in-flight behavior. See id., at 1132 (testimony of a chief cabin attendant that the flight attendant should have reseated Hanson immediately after Husain's third request); ibid. (testimony of a company official that its policy is to move passengers "who become ill during flights" (emphasis added)). To establish that it is company policy to reseat an asthmatic does not establish that it is company policy to do so before takeoff, while the attendants are busy securing the plane for departure and before anyone has started smoking. In other words, there may have been nothing unusual about the initial insistence that Hanson stay seated, and for that reason no "accident." We do not know the policy in this more specific regard. The District Court made no findings because it applied an erroneous legal standard that did not require it to distinguish among the three requests. But even if the flight attendant's insistence that Hanson remain seated before takeoff was unusual or unexpected, and hence an accident, it was not a compensable cause of Hanson's death. It was perhaps a but-for cause (had the flight attendant allowed him to move before takeoff, he might have lived, just as he might have lived if he had taken a different flight); but it was not a proximate cause, which is surely a predicate for recovery. Any early insistence that Hanson remain seated became moot once the attendant later told Husain and her husband they were free to move about. There is, however, one complication, which I think requires us to remand this case to the District Court: Although the flight attendant, once the plane was aloft, invited Husain to find another passenger willing to switch seats, she did not invite Husain to find an empty seat, but to the contrary affirmatively represented that the plane was full. If such a misrepresentation is unusual and unexpected; and (the more difficult question) if it can reasonably be said that it caused Hanson's death — i. e., that Husain would have searched for *667 and found an empty seat, although unwilling to ask another passenger to move — then a cause of action might lie. I would remand so that the District Court could consider in the first instance whether the flight attendant's misrepresentation about the plane's being full, independent of any failure to reseat, was an accident that caused Hanson's death. * * * Tragic though Dr. Hanson's death may have been, it does not justify the Court's putting us in needless conflict with other signatories to the Warsaw Convention. I respectfully dissent.

When we interpret a treaty, we accord the judgments of our sister signatories "`considerable weight.'" Air True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. See, e. g., El Al Israel Airlines, ; Eastern Airlines, ; at Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations' courts have no role in enforcing. See ; One would have thought that foreign courts' interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant. The Court's new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today's holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent. I The Court holds that an airline's mere inaction can constitute an "accident" within the meaning of the Warsaw Convention. *659 Ante, at 654-657. It derives this principle from our definition of "accident" in as "an unexpected or unusual event or happening that is external to the passenger." The Court says this definition encompasses failures to act like the flight attendant's refusal to reseat Hanson in the face of a request for assistance. That is far from clear. The word "accident" is used in two distinct senses. One refers to something that is unintentional, not "on purpose" — as in, "the hundred typing monkeys' verbatim reproduction of War and Peace was an accident." The other refers to an unusual and unexpected event, intentional or not: One may say he has been involved in a "train accident," for example, whether or not the derailment was intentionally caused. As the Court notes, ante, at 651, n. 6, adopted the latter definition rather than the former. That distinction is crucial because, while there is no doubt that inaction can be an accident in the former sense ("I accidentally left the stove on"), whether it can be so in the latter sense is questionable. Two of our sister signatories have concluded that it cannot. In Deep Vein Thrombosis and Air Travel Group Litigation, [] Q. B. 234, England's Court of Appeal, in an opinion by the Master of the Rolls that relied heavily on and analyzed more than a half-dozen other non-English decisions, held as follows: "A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis *660 of an accident." [] Q. B., at 247, ¶ 25 (Lord Phillips, M. R.). Six months later, the appellate division of the Supreme Court of Victoria, Australia, in an opinion that likewise gave extensive consideration to American and other foreign decisions, agreed: "The allegations in substance do no more than state a failure to do something, and this cannot be characterised as an event or happening, whatever be the concomitant background to that failure to warn or advise. That is not to say that a failure to take a specific required step in the course of flying an aircraft, or in picking up or setting down passengers, cannot lead to an event or happening of the requisite unusual or unexpected kind and thus be an accident for the purpose of the article. A failure by a pilot to use some device in the expected and correct manner, such as a failure to let down the landing wheels or a chance omission to adjust the level of pressurisation, may lead, as has been held, to an accident contemplated by Article 17, but I would venture to suggest that it is not the failure to take the step which is properly to be characterised as an accident but rather its immediate and disastrous consequence whether that be the dangerous landing on the belly of the aircraft or an immediate unexpected and dangerous drop in pressurisation." Qantas We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently. (The Warsaw Convention's preamble specifically acknowledges "the advantage of regulating in a uniform manner the conditions of the liability *661 of the carrier.") Finally, even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration. The Court nonetheless dismisses Deep Vein Thrombosis and Povey in a footnote responding to this dissent. Ante, at 655-656, n. 9. As to the former, it claims (choosing its words carefully) that the "conclusion" it reaches is "not inconsistent" with that case. Ante, at 655 The reader should not think this to be a contention that the Master of the Rolls' opinion might be read to agree with today's holding that inaction can constitute an "accident." (To repeat the conclusion of that opinion: "Inaction is the antithesis of an accident." [] Q. B., at 247, ¶ 25.) What it refers to is the fact that the Master of the Rolls distinguished the Court of Appeals' judgment below (announced in an opinion that assumed inaction was involved, but did not at all discuss the action-inaction distinction) on the ground that action was involved — namely, "insistence that [Hanson] remain seated in the area exposed to smoke."[1] As I explain below, see Part II, infra, that theory does not quite work because, *662 in fact, the flight attendant did not insist that Hanson remain seated. But we can ignore this detail for the time being. The point is that the English court thought Husain could recover, not because the action-inaction distinction was irrelevant, but because, even though action was indispensable, it had in fact occurred. The Court charts our course in exactly the opposite direction, spending three pages explaining why the action-inaction distinction is irrelevant. See ante, at 654-657. If the Court agrees with the Master of the Rolls that this case involves action, why does it needlessly place us in conflict with the courts of other signatories by deciding the then-irrelevant issue of whether inaction can constitute an accident? It would suffice to hold that our case involves action and end the analysis there. Whether inaction can constitute an accident under the Warsaw Convention is a significant issue on which international consensus is important; whether Husain can recover for her husband's death in this one case is not. As they stand, however, the core holdings of this case and Deep Vein Thrombosis — their rationes decidendi — are not only not "not inconsistent"; they are completely opposite.[2] *663 I would follow the holdings of Deep Vein Thrombosis and Povey, since the Court's analysis today is no more convincing than theirs. Merely pointing to dictionaries that define "`event'" as an "`occurrence'" or "`[s]omething that happens,'" ante, at 655, hardly resolves the problem; it only reformulates one question (whether "accident" includes nonevents) into an equivalent one (whether "accident" includes nonoccurrences and nonhappenings). Equally unavailing is the reliance, ante, at 656-657, on Article 25 of the Warsaw Convention (which lifts liability caps for injury caused by a "default" of the airline equivalent to willful misconduct) and Article 20 (which precludes the airline's due-care defense if it fails to take "all necessary measures" to avoid the injury). The Court's analytical error in invoking these provisions is to assume that the inaction these provisions contemplate is the accident itself. The treaty imposes no such requirement. If a pilot negligently forgets to lower the landing gear, causing the plane to crash and killing all passengers on board, then recovery is presumptively available (because the crash that caused the deaths is an accident), and the due-care defense is inapplicable (because the pilot's negligent omission also caused the deaths), even though the omission is not the accident. Similarly, if a flight attendant fails to prevent the boarding of an individual whom she knows to be a terrorist, and who later shoots a passenger, the damages cap might be lifted even though the accident (the shooting) and the default (the failure to prevent boarding) do not coincide. Without the invented restriction that the Article 20 or 25 default be the accident itself, the Court's argument based on those provisions loses all force. *664 As for the Court's hypothetical of the crew that refuses to divert after a passenger collapses, ante, at 656: This would be more persuasive as a reductio ad absurdum if the Eleventh Circuit had not already ruled out Article 17 liability in substantially these very circumstances. See A legal construction is not fallacious merely because it has harsh results. The Convention denies a remedy, even when outrageous conduct and grievous injury have occurred, unless there has been an "accident." Whatever that term means, it certainly does not equate to "outrageous conduct that causes grievous injury." It is a mistake to assume that the Convention must provide relief whenever traditional tort law would do so. To the contrary, a principal object of the Convention was to promote the growth of the fledgling airline industry by limiting the circumstances under which passengers could sue. See -171. Unless there has been an accident, there is no liability, whether the claim is trivial, cf. or cries out for redress. Were we confronting the issue in the first instance, perhaps the Court could persuade me to its view. But courts in two other countries have already rejected it, and their reasoning is no less compelling than the Court's. I would follow Deep Vein Thrombosis and Povey and hold that mere inaction cannot be an "accident" under Article 17. II Respondents argue that, even if the Convention distinguishes action from inaction, this case involves sufficient elements of action to support recovery. That argument is not implausible; as noted earlier, the court in Deep Vein Thrombosis suggested that "[t]he refusal of the attendant to move [Hanson] could be described as insistence that he remain seated in the area exposed to smoke." [] Q. B., at 254, *665 I cannot agree with this analysis, however, because it miscomprehends the facts of this case. Preliminarily, I must note that this was not the rationale of the District Court. That court consistently referred to the relevant "accident" not as the flight attendant's insistence that Hanson remain seated, but as her "failure" or "refusal" to reseat him. See Its findings of fact were infected by its erroneous legal assumption that Article 17 makes no distinction between action and inaction. The only question is whether we can nonetheless affirm on the ground that, since there was action in any event, this error was harmless. It was not. True, in response to the first request, the flight attendant insisted that Husain and her husband "`have a seat.'" This insistence might still have been implicit in her response to the second request. But these responses were both given while the plane was still on the ground, preparing to take off. The flight attendant's response to Husain's third request — made once the plane was in the air and other passengers had started smoking — was quite different. She did not insist that Husain and her husband remain seated; on the contrary, she invited them to walk around the cabin in search of someone willing to switch. That the flight attendant explicitly refused Husain's pleas for help after the third request, rather than simply ignoring them, does not transform her inaction into action. The refusal acknowledged her inaction, but it was the inaction, not the acknowledgment, that caused Hanson's death. Unlike the previous responses, the third was a mere refusal to assist, and so cannot be the basis for liability under Article 17. The District Court's failure to make the distinction between the flight attendant's pretakeoff responses and her in-flight response undermines its decision in two respects. First, the court's findings as to airline and industry policy did not distinguish between reseating a passenger while in flight and reseating a passenger while still on the ground *666 preparing to take off. In fact, some of the evidence on this point specifically related only to in-flight behavior. See ; (testimony of a company official that its policy is to move passengers "who become ill during flights" ). To establish that it is company policy to reseat an asthmatic does not establish that it is company policy to do so before takeoff, while the attendants are busy securing the plane for departure and before anyone has started smoking. In other words, there may have been nothing unusual about the initial insistence that Hanson stay seated, and for that reason no "accident." We do not know the policy in this more specific regard. The District Court made no findings because it applied an erroneous legal standard that did not require it to distinguish among the three requests. But even if the flight attendant's insistence that Hanson remain seated before takeoff was unusual or unexpected, and hence an accident, it was not a compensable cause of Hanson's death. It was perhaps a but-for cause (had the flight attendant allowed him to move before takeoff, he might have lived, just as he might have lived if he had taken a different flight); but it was not a proximate cause, which is surely a predicate for recovery. Any early insistence that Hanson remain seated became moot once the attendant later told Husain and her husband they were free to move about. There is, however, one complication, which I think requires us to remand this case to the District Court: Although the flight attendant, once the plane was aloft, invited Husain to find another passenger willing to switch seats, she did not invite Husain to find an empty seat, but to the contrary affirmatively represented that the plane was full. If such a misrepresentation is unusual and unexpected; and (the more difficult question) if it can reasonably be said that it caused Hanson's death — i. e., that Husain would have searched for *667 and found an empty seat, although unwilling to ask another passenger to move — then a cause of action might lie. I would remand so that the District Court could consider in the first instance whether the flight attendant's misrepresentation about the plane's being full, independent of any failure to reseat, was an accident that caused Hanson's death. * * * Tragic though Dr. Hanson's death may have been, it does not justify the Court's putting us in needless conflict with other signatories to the Warsaw Convention. I respectfully dissent.

Justice Rehnquist

majority

Dawson v. Delaware

https://www.courtlistener.com/opinion/112702/dawson-v-delaware/

https://www.courtlistener.com/api/rest/v3/clusters/112702/

1991-041

The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do. Shortly after midnight on December 1, 1986, petitioner David Dawson and three other inmates escaped from the Delaware Correctional Center near Smyrna, Delaware. Dawson stole a car and headed south, while the other three inmates stole another car and drove north. Early that *161 morning, Dawson burglarized a house near Kenton, Delaware, stealing a motorcycle jacket, several pocket watches, and containers of loose change. He then proceeded to the home of Richard and Madeline Kisner, located about half a mile from the burglary site. Mrs. Kisner was alone in the house, preparing to leave for work. Dawson brutally murdered Mrs. Kisner, stole the Kisners' car and some money, and fled further south. He reappeared later that evening at the Zoo Bar in Milford, Delaware, wearing a motorcycle jacket that was too big for him. While at the bar, Dawson introduced himself to Patty Dennis, and told her that his name was "Abaddon," which he said meant "[o]ne of Satan's disciples." App. 80-81. Dawson was subsequently asked to leave the bar. Later that evening, a Delaware state police officer responded to a call to investigate a one-car accident. The car involved in the accident had been stolen from a location near the Zoo Bar and had been driven into a ditch, but the driver had left the scene. The police began a house-to-house search for Dawson, and found him at 5:25 the next morning, on the floor of a Cadillac parked about three-tenths of a mile from the accident site. A jury convicted Dawson of first-degree murder, possession of a deadly weapon during the commission of a felony, and various other crimes. The trial court then conducted a penalty hearing before the jury to determine whether Dawson should be sentenced to death for the first-degree murder conviction. See Del. Code Ann., Tit. 11, § 4209 (1987). The prosecution gave notice that it intended to introduce (1) expert testimony regarding the origin and nature of the Aryan Brotherhood, as well as the fact that Dawson had the words "Aryan Brotherhood" tattooed on the back of his right hand, (2) testimony that Dawson referred to himself as "Abaddon" and had the name "Abaddon" tattooed in red letters across his stomach, and (3) photographs of multiple swastika tattoos on Dawson's back and a picture of a swastika he had painted *162 on the wall of his prison cell. Dawson argued that this evidence was inflammatory and irrelevant, and that its admission would violate his rights under the First and Fourteenth Amendments. Before the penalty phase began, the parties agreed to a stipulation regarding the Aryan Brotherhood evidence. The stipulation provided: "The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." App. 132. In return for Dawson's agreement to the stipulation, the prosecution agreed not to call any expert witnesses to testify about the Aryan Brotherhood. Although Dawson agreed to the stipulation in order to avoid presentation of this expert testimony, it is apparent from the record and from the opinion of the Supreme Court of Delaware that he continued to assert that the admission of the stipulated facts into evidence violated the Constitution. 581 A.2d 1078 (1990). At the penalty hearing, the prosecution read the stipulation to the jury and introduced evidence that Dawson had tattooed the words "Aryan Brotherhood" on his hand. The trial judge permitted the prosecution to present the evidence related to the name "Abaddon" as well, but excluded all of the swastika evidence. In addition, the prosecution submitted proof of Dawson's lengthy criminal record. Dawson, in turn, presented mitigating evidence based on the testimony of two family members and on the fact that he had earned good time credits in prison for enrolling in various drug and alcohol programs. The jury found three statutory aggravating circumstances, each making Dawson eligible for the death penalty under Delaware law; it determined (1) that the murder was committed by an escaped prisoner, (2) that the murder was committed during the commission of a burglary, and (3) *163 that the murder was committed for pecuniary gain. See id., at 1102, and n. 27. The jury further concluded that the aggravating evidence outweighed the mitigating evidence, and recommended that Dawson be sentenced to death. The trial court, bound by that recommendation, imposed the death penalty. The Supreme Court of Delaware affirmed the convictions and the death sentence. The court rejected Dawson's claim that the evidence concerning the Aryan Brotherhood and his use of the name "Abaddon" should have been excluded from the penalty hearing. It observed that having found at least one statutory aggravating factor, the jury was "required to make an individualized determination of whether Dawson should be executed or incarcerated for life, based upon Dawson's character, his record and the circumstances of the crime," and that it was desirable for the jury to have as much information before it as possible when making that decision. Id., at 1102-1103 (emphasis in original). The court acknowledged that the Constitution would prohibit the consideration of certain irrelevant factors during the sentencing process, but stated that "`[p]unishing a person for expressing his views or for associating with certain people is substantially different from allowing . . . evidence of [the defendant's] character [to be considered] where that character is a relevant inquiry.' " Id., at 1103. Because the evidence relating to the Aryan Brotherhood and the name "Abaddon" properly focused the jury's attention on Dawson's character, and did not appeal to the jury's prejudices concerning race, religion, or political affiliation, the court upheld its introduction during the penalty phase. We granted certiorari, 499 U.S. 946 (1991), to consider whether the admission of this evidence was constitutional error. We hold that its admission in this case was error and so reverse. We have held that the First Amendment protects an individual's right to join groups and associate with others holding similar beliefs. See Aptheker v. Secretary of State, 378 *164 U. S. 500, 507 (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Because his right to associate with the Aryan Brotherhood is constitutionally protected, Dawson argues, admission of evidence related to that association at his penalty hearing violated his constitutional rights. Relying on our statement in Zant v. Stephens, 462 U.S. 862 (1983), that an aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected," he contends that the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment. Id., at 885. We think this submission is, in the light of our decided cases, too broad. These cases emphasize that "the sentencing authority has always been free to consider a wide range of relevant material." Payne v. Tennessee, 501 U.S. 808, 820-821 (1991); United States v. Tucker, 404 U.S. 443, 446 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come"); Williams v. New York, 337 U.S. 241 (1949). We have previously upheld the consideration, in a capital sentencing proceeding, of evidence of racial intolerance and subversive advocacy where such evidence was relevant to the issues involved. In Barclay v. Florida, 463 U.S. 939 (1983), for example, we held that a sentencing judge in a capital case might properly take into consideration "the elements of racial hatred" in Barclay's crime as well as "Barclay's desire to start a race war." See id., at 949 (plurality opinion); id., at 970, and n. 18 (Stevens, J., concurring in judgment). One year later, in United States v. Abel, 469 U.S. 45 (1984), we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that membership *165 in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Although we cannot accept Dawson's broad submission, we nevertheless agree with him that, in this case, the receipt into evidence of the stipulation regarding his membership in the Aryan Brotherhood was constitutional error. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960's, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson's sentencing proceeding. As an initial matter, the second sentence of the stipulation, when carefully parsed, says nothing about the beliefs of the Aryan Brotherhood "chapter" in the Delaware prisons. Prior to trial, the prosecution acknowledged that there are differences among the various offshoots of the Aryan Brotherhood, stating that "there are cells or specific off-shoots within various local jurisdictions that don't see eye to eye or share a union, if you will." App. 33. But the juxtaposition *166 of the second sentence with the first sentence, which describes the Aryan Brotherhood in California prisons as a "white racist prison gang," invited the jury to infer that the beliefs of the Delaware chapter are identical to those of the California chapter. Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. In Barclay, on the contrary, the evidence showed that the defendant's membership in the Black Liberation Army, and his consequent desire to start a "racial war," were related to the murder of a white hitchhiker. See 463 U.S., at 942-944 (plurality opinion). We concluded that it was most proper for the sentencing judge to "tak[e] into account the elements of racial hatred in this murder." Id., at 949. In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing. Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant's associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter. Delaware counters that even these abstract beliefs constitute a portion of *167 Dawson's "character," and thus are admissible in their own right under Delaware law. Del. Code Ann., Tit. 11, § 4209(d) (1987). Whatever label is given to the evidence presented, however, we conclude that Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson's abstract beliefs. Cf. Texas v. Johnson, 491 U.S. 397, 414 (1989) ("[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson's part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence. Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. Eddings v. Oklahoma, 455 U.S. 104, 114 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion). But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. See Payne v. Tennessee, 501 U. S., at 825 ("[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in") (internal quotation marks omitted); id., at 860 (Stevens, J., dissenting). In this case, Dawson's mitigating evidence consisted of testimony about his kindness to family members, as well as evidence regarding good time credits he earned in prison for enrolling in various drug and alcohol programs. Delaware argues that because Dawson's evidence consisted of "good" character evidence, it was entitled to introduce any "bad" character *168 evidence in rebuttal, including that concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant "bad" character evidence in its own right. The dissent takes us to task for failing to recognize the broader implications of membership in a prison gang, and for extending the protection of the First Amendment to evidence introduced at a sentencing hearing. The material adduced by the dissent as to the nature of prison gangs—similar to the evidence which the prosecution in this case at one time considered adducing by expert testimony, supra, at 165—would, if it had been presented to the jury, have made this a different case. But we do not have the same confidence as the dissent does that jurors would be familiar with the court decisions and studies upon which it relies. Regarding the reach of the First Amendment, the dissent correctly points out that it prevents the State from criminalizing certain conduct in the first instance. But it goes further than that. It prohibits a State from denying admission to the bar on the grounds of previous membership in the Communist Party, when there is no connection between that membership and the "good moral character" required by the State to practice law. Schware v. Board of Bar Examiners of N. M., 353 U.S. 232 (1957). It prohibits the State from requiring information from an organization that would impinge on First Amendment associational rights if there is no connection between the information sought and the State's interest. Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). We think that it similarly prevents Delaware here from employing evidence of a defendant's abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried. The question whether the wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless *169 error is not before us at this time, and we therefore leave it open for consideration by the Supreme Court of Delaware on remand. See Clemons v. Mississippi, 494 U.S. 738 (1990). For the foregoing reasons, we vacate the judgment of the Supreme Court of Delaware and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.

The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do. Shortly after midnight on December 1, 1986, petitioner David Dawson and three other inmates escaped from the Delaware Correctional Center near Smyrna, Delaware. Dawson stole a car and headed south, while the other three inmates stole another car and drove north. Early that *161 morning, Dawson burglarized a house near Kenton, Delaware, stealing a motorcycle jacket, several pocket watches, and containers of loose change. He then proceeded to the home of Richard and Madeline Kisner, located about half a mile from the burglary site. Mrs. Kisner was alone in the house, preparing to leave for work. Dawson brutally murdered Mrs. Kisner, stole the Kisners' car and some money, and fled further south. He reappeared later that evening at the Zoo Bar in Milford, Delaware, wearing a motorcycle jacket that was too big for him. While at the bar, Dawson introduced himself to Patty Dennis, and told her that his name was "Abaddon," which he said meant "[o]ne of Satan's disciples." App. 80-81. Dawson was subsequently asked to leave the bar. Later that evening, a Delaware state police officer responded to a call to investigate a one-car accident. The car involved in the accident had been stolen from a location near the Zoo Bar and had been driven into a ditch, but the driver had left the scene. The police began a house-to-house search for Dawson, and found him at 5:25 the next morning, on the floor of a Cadillac parked about three-tenths of a mile from the accident site. A jury convicted Dawson of first-degree murder, possession of a deadly weapon during the commission of a felony, and various other crimes. The trial court then conducted a penalty hearing before the jury to determine whether Dawson should be sentenced to death for the first-degree murder conviction. See Del. Code Ann., Tit. 11, 4209 (1987). The prosecution gave notice that it intended to introduce (1) expert regarding the origin and nature of the Aryan Brotherhood, as well as the fact that Dawson had the words "Aryan Brotherhood" tattooed on the back of his right hand, (2) that Dawson referred to himself as "Abaddon" and had the name "Abaddon" tattooed in red letters across his stomach, and (3) photographs of multiple swastika tattoos on Dawson's back and a picture of a swastika he had painted *162 on the wall of his prison cell. Dawson argued that this evidence was inflammatory and irrelevant, and that its admission would violate his rights under the First and Fourteenth Amendments. Before the penalty phase began, the parties agreed to a stipulation regarding the Aryan Brotherhood evidence. The stipulation provided: "The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." App. 132. In return for Dawson's agreement to the stipulation, the prosecution agreed not to call any expert witnesses to testify about the Aryan Brotherhood. Although Dawson agreed to the stipulation in order to avoid presentation of this expert it is apparent from the record and from the opinion of the Supreme Court of Delaware that he continued to assert that the admission of the stipulated facts into evidence violated the Constitution. At the penalty hearing, the prosecution read the stipulation to the jury and introduced evidence that Dawson had tattooed the words "Aryan Brotherhood" on his hand. The trial judge permitted the prosecution to present the evidence related to the name "Abaddon" as well, but excluded all of the swastika evidence. In addition, the prosecution submitted proof of Dawson's lengthy criminal record. Dawson, in turn, presented mitigating evidence based on the of two family members and on the fact that he had earned good time credits in prison for enrolling in various drug and alcohol programs. The jury found three statutory aggravating circumstances, each making Dawson eligible for the death penalty under Delaware law; it determined (1) that the murder was committed by an escaped prisoner, (2) that the murder was committed during the commission of a burglary, and (3) *163 that the murder was committed for pecuniary gain. See and n. 27. The jury further concluded that the aggravating evidence outweighed the mitigating evidence, and recommended that Dawson be sentenced to death. The trial court, bound by that recommendation, imposed the death penalty. The Supreme Court of Delaware affirmed the convictions and the death sentence. The court rejected Dawson's claim that the evidence concerning the Aryan Brotherhood and his use of the name "Abaddon" should have been excluded from the penalty hearing. It observed that having found at least one statutory aggravating factor, the jury was "required to make an individualized determination of whether Dawson should be executed or incarcerated for life, based upon Dawson's character, his record and the circumstances of the crime," and that it was desirable for the jury to have as much information before it as possible when making that decision. -1103 The court acknowledged that the Constitution would prohibit the consideration of certain irrelevant factors during the sentencing process, but stated that "`[p]unishing a person for expressing his views or for associating with certain people is substantially different from allowing evidence of [the defendant's] character [to be considered] where that character is a relevant inquiry.' " Because the evidence relating to the Aryan Brotherhood and the name "Abaddon" properly focused the jury's attention on Dawson's character, and did not appeal to the jury's prejudices concerning race, religion, or political affiliation, the court upheld its introduction during the penalty phase. We granted certiorari, to consider whether the admission of this evidence was constitutional error. We hold that its admission in this case was error and so reverse. We have held that the First Amendment protects an individual's right to join groups and associate with others holding similar beliefs. See ; Because his right to associate with the Aryan Brotherhood is constitutionally protected, Dawson argues, admission of evidence related to that association at his penalty hearing violated his constitutional rights. Relying on our statement in that an aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected," he contends that the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment. We think this submission is, in the light of our decided cases, too broad. These cases emphasize that "the sentencing authority has always been free to consider a wide range of relevant material." ; United ; We have previously upheld the consideration, in a capital sentencing proceeding, of evidence of racial intolerance and subversive advocacy where such evidence was relevant to the issues involved. In for example, we held that a sentencing judge in a capital case might properly take into consideration "the elements of racial hatred" in Barclay's crime as well as "Barclay's desire to start a race war." See ; and n. 18 (Stevens, J., concurring in judgment). One year later, in United we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that membership *165 in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Although we cannot accept Dawson's broad submission, we nevertheless agree with him that, in this case, the receipt into evidence of the stipulation regarding his membership in the Aryan Brotherhood was constitutional error. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960's, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson's sentencing proceeding. As an initial matter, the second sentence of the stipulation, when carefully parsed, says nothing about the beliefs of the Aryan Brotherhood "chapter" in the Delaware prisons. Prior to trial, the prosecution acknowledged that there are differences among the various offshoots of the Aryan Brotherhood, stating that "there are cells or specific off-shoots within various local jurisdictions that don't see eye to eye or share a union, if you will." App. 33. But the juxtaposition *166 of the second sentence with the first sentence, which describes the Aryan Brotherhood in California prisons as a "white racist prison gang," invited the jury to infer that the beliefs of the Delaware chapter are identical to those of the California chapter. Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. In Barclay, on the contrary, the evidence showed that the defendant's membership in the Black Liberation Army, and his consequent desire to start a "racial war," were related to the murder of a white hitchhiker. See -944 We concluded that it was most proper for the sentencing judge to "tak[e] into account the elements of racial hatred in this murder." In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing. Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant's associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter. Delaware counters that even these abstract beliefs constitute a portion of *167 Dawson's "character," and thus are admissible in their own right under Delaware law. Del. Code Ann., Tit. 11, 4209(d) (1987). Whatever label is given to the evidence presented, however, we conclude that Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson's abstract beliefs. Cf. Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson's part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence. Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. ; But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. See (internal quotation marks omitted); In this case, Dawson's mitigating evidence consisted of about his kindness to family members, as well as evidence regarding good time credits he earned in prison for enrolling in various drug and alcohol programs. Delaware argues that because Dawson's evidence consisted of "good" character evidence, it was entitled to introduce any "bad" character *168 evidence in rebuttal, including that concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant "bad" character evidence in its own right. The dissent takes us to task for failing to recognize the broader implications of membership in a prison gang, and for extending the protection of the First Amendment to evidence introduced at a sentencing hearing. The material adduced by the dissent as to the nature of prison gangs—similar to the evidence which the prosecution in this case at one time considered adducing by expert at 165—would, if it had been presented to the jury, have made this a different case. But we do not have the same confidence as the dissent does that jurors would be familiar with the court decisions and studies upon which it relies. Regarding the reach of the First Amendment, the dissent correctly points out that it prevents the State from criminalizing certain conduct in the first instance. But it goes further than that. It prohibits a State from denying admission to the bar on the grounds of previous membership in the Communist Party, when there is no connection between that membership and the "good moral character" required by the State to practice law. It prohibits the State from requiring information from an organization that would impinge on First Amendment associational rights if there is no connection between the information sought and the State's interest. ; We think that it similarly prevents Delaware here from employing evidence of a defendant's abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried. The question whether the wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless *169 error is not before us at this time, and we therefore leave it open for consideration by the Supreme Court of Delaware on remand. See For the foregoing reasons, we vacate the judgment of the Supreme Court of Delaware and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Thomas

dissenting

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.

https://www.courtlistener.com/opinion/2771248/teva-pharmaceuticals-usa-inc-v-sandoz-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2771248/

2014-009

I agree with the Court’s conclusion that there is no special exception to Federal Rule of Civil Procedure 52(a)(6) for claim construction. But that is not the ques­ tion in this case. Because Rule 52(a)(6) provides for clear error review only of “findings of fact” and “does not apply to conclusions of law,” Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982), the question here is whether claim construction involves findings of fact.1 Because it does not, Rule 52(a)(6) does not apply, and the Court of Appeals properly applied a de novo standard of review. I In reaching the contrary conclusion, the majority fails to —————— 1 The majority argues that we are bound by petitioners’ phrasing of the question presented and by respondents’ concession at oral argu­ ment that claim construction “will sometimes require subsidiary factfinding.” Ante, at 10–11. But the parties’ stipulations that claim construction involves subsidiary factual determinations, with which I do not quarrel, do not settle the question whether those determinations are “findings of fact” within the meaning of Rule 52(a)(6). And to the extent that the majority premises its holding on what it sees as stipula­ tions that these determinations are “findings of fact” for purposes of Rule 52(a)(6), then its holding applies only to the present dispute, and other parties remain free to contest this premise in the future. 2 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting engage the “vexing . . . distinction between questions of fact and questions of law.” Id., at 288. Unfortunately, “Rule 52(a) does not furnish particular guidance with respect to distinguishing law from fact,” and we have found it difficult to discern “any other rule or principle that will unerringly” differentiate the two. Ibid. That inquiry is thus not as simple as pointing out the undeni- able “evidentiary underpinnings” of claim construction. Ante, at 10–11. Instead, we must consider how “findings of fact” and “conclusions of law” were understood at the time Rule 52 was adopted. Cf. Tome v. United States, 513 U.S. 150, 168 (1995) (SCALIA, J., concurring in part and concurring in judgment) (noting that, because the federal rules have their background in common-law principles, “the body of common law knowledge must be a source of guidance in our interpretation of the Rules” (internal quotation marks omitted)). Unfortunately, the pre-1937 evidence of this Court’s treatment of evidentiary determinations underly­ ing claim construction is inconclusive. In several deci­ sions, the Court considered extrinsic evidence related to claim construction with no apparent deference to the District Courts’ findings based on that evidence. Coupe v. Royer, 155 U.S. 565, 576 (1895); Loom Co. v. Higgins, 105 U.S. 580, 584–587 (1882); Tilghman v. Proctor, 102 U.S. 707, 729–731 (1881); Winans v. Denmead, 15 How. 330, 339 (1854). None of those decisions, however, expressly turned on a disagreement over a subsidiary evidentiary determination. Absent specific evidence of the treatment of a particular issue at the time Rule 52 was adopted, we have drawn analogies to the treatment of other issues under Rule 52(a)(6). See, e.g., Pullman, supra, at 288. In general, we have treated district-court determinations as “analytically more akin to a fact” the more they pertain to a simple historical fact of the case, and as “analytically more akin Cite as: 574 U. S. ____ (2015) 3 THOMAS, J., dissenting to . . . a legal conclusion” the more they define rules appli­ cable beyond the parties’ dispute. Miller v. Fenton, 474 U.S. 104, 116 (1985); see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984); Baum- gartner v. United States, 322 U.S. 665, 671 (1944). Under this approach, determinations underlying claim construc­ tion fall on the law side of the dividing line. A Patents are written instruments, so other written in­ struments supply the logical analogy. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 381 (1996). And as the majority recognizes, the construction of written instruments is generally a question of law. See ante, at 5. But in certain contexts, a court construing a written in­ strument makes subsidiary determinations that the law treats as findings of fact. The classic case of a written instrument whose construc­ tion does not involve subsidiary findings of fact is a stat­ ute. Our treatment of subsidiary evidentiary findings underlying statutory construction as conclusions of law makes sense for two reasons. First, although statutory construction may demand some inquiry into legislative “intent,” that inquiry is an- alytically legal: The meaning of a statute does not turn on what an individual lawmaker intended as a matter of fact, but only on what intent has been enacted into law through the constitutionally defined channels of bicamer­ alism and presentment. See Wyeth v. Levine, 555 U.S. 555, 587 (2009) (THOMAS, J., concurring in judgment). This remains so even if deciding what passed through those channels requires a court to determine a “fact” of historical understanding through an examination of ex­ trinsic evidence. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 714–715 (2004) (examining the historical under­ standing of the term “law of nations” when the Alien Tort 4 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting Statute was enacted); see also, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 359–366 (1995) (THOMAS, J., concurring in judgment) (construing a consti­ tutional provision by asking how the words were originally understood and marshaling evidence of that understand­ ing). The Court has given no hint that this practice changes when the statute it construes is a land patent— that is, a public land grant. See Leo Sheep Co. v. United States, 440 U.S. 668, 669 (1979) (making detailed histori­ cal findings in the course of construing a land grant be­ cause “ ‘courts, in construing a statute, may with propriety recur to the history of the times when it was passed . . . in order to ascertain the reason as well as the meaning of particular provisions in it’ ”); see also Marvin M. Brandt Revocable Trust v. United States, 572 U. S. ___, ___ (2014) (slip op., at 10) (looking to the historical background against which a land grant was passed to confirm its interpretation). Second, statutes govern the rights and duties of the public as a whole, so subsidiary evidentiary findings shape legal rules that apply far beyond the boundaries of the dispute involved. Our rules of construction for legislative acts have long been consciously shaped by the public’s stake in those acts. See, e.g., The Binghamton Bridge, 3 Wall. 51, 75 (1866) (describing a rule of construction bor­ rowed from English common law and reflected in the decisions of the several States). The construction of contracts and deeds, by contrast, sometimes involves subsidiary findings of fact. Our treatment of subsidiary evidentiary findings as findings of fact in this context makes sense because, in construing contracts and deeds, “the avowed purpose and primary function of the court is to ascertain the intention of the parties.” 11 R. Lord, Williston on Contracts §30:2, pp. 17– 18 (4th ed. 2012) (Williston); see also Reed v. Proprietors of Locks and Canals on Merrimac River, 8 How. 274, 288– Cite as: 574 U. S. ____ (2015) 5 THOMAS, J., dissenting 289 (1850). Sometimes that intention is clearly “set forth in the express language of the contract,” 11 Williston §31:1, at 341–342, so no subsidiary findings of fact are necessary to its construction, id., §30:1. But when ambi­ guities require a court to look beyond the express lan­ guage, its search for intent becomes factual in nature. That search focuses on “real intention[s]”—embodied in an actual meeting of minds or an actual conveyance of a physical parcel of land—that have an existence outside the written instrument and that the instrument merely rec­ ords. See William & James Brown & Co. v. McGran, 14 Pet. 479, 493 (1840) (Story, J.); Reed, supra, at 289. See generally Union Pacific R. Co. v. United States, 10 Ct. Cl. 548, 577–578 (1874) (declining to interpret a contract-like statute according to contract rules because “[a]ll the terms of the compact are dictated and accepted by one side, and the only intent which judicial construction can make certain is the intent of the legislative power”), cited in 3 N. Singer, Sutherland on Statutory Construction §63:1, p. 405, n. 6 (7th ed. 2008). Of course, not all subsidiary inquiries that a court makes in the course of construing contracts amount to findings of fact. For example, when a court searches for the meaning that a hypothetical person “conversant with the subject-matter with which the contract is dealing” would give to the words of the contract, its conclusion often remains one of law. Silver King Coalition Mines Co. of Nevada v. Silver King Consol. Mining Co. of Utah, 204 F. 166 (CA8 1913), cited in Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 52, 28 U.S. C. App., p. 686. The question we must ask, then, is whether the subsidi­ ary findings underlying claim construction more closely resemble the subsidiary findings underlying the construc­ tion of statutes or those underlying the construction of contracts and deeds that are treated as findings of fact. This, in turn, depends on whether patent claims are more 6 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting like statutes or more like contracts and deeds. B A patent, generally speaking, is “an official document reflecting a grant by a sovereign that is made public, or ‘patent.’ ” Marvin M. Brandt Revocable Trust, supra, at ___ (slip op., at 5). Invention patents originated not as private property rights, but as royal prerogatives. See 4 W. Holdsworth, A History of English Law 350–351 (1924). They could be issued and revoked only by the Crown, which sometimes used the patent to delegate governmen­ tal power to regulate an industry. Id., at 344–347. Pro­ voked by the Crown’s use of these so-called “monopoly patents” to promote private economic interests over inno­ vation and beneficial commerce, Parliament enacted the Statute of Monopolies in 1624. Id., at 353. But even under the regime that Parliament put in place, patents remained sovereign grants, issued, enforced, and revoked by the Privy Council. Lemley, Why Do Juries Decide if Patents are Valid? 99 Va. L. Rev. 1673, 1681 (2013). The Framers adopted a similar scheme. Article I of the U. S. Constitution vests the patent power in Congress, authorizing it “[t]o 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.” U. S. Const. Art. I, §8, cl. 8. Although Congress could issue such patents as special statutes, see, e.g., Bloomer v. McQuewan, 14 How. 539, 549–550 (1853), it has mostly acted by authorizing the Executive Branch to issue patents when certain statutory requirements are met. See 35 U.S. C. §151; see also Act of July 8, 1870, §31, 16 Stat. 202; Act of July 4, 1836, §7, 5 Stat. 119; Act of Apr. 10, 1790, ch. 7, §1, 1 Stat. 109–110. Like the royal prerogatives that were their historical antecedents, patents have a regulatory effect: They “re­ strain others from manufacturing, using or selling that Cite as: 574 U. S. ____ (2015) 7 THOMAS, J., dissenting which [the patent holder] has invented” for a specified period of time. Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510 (1917) (emphasis added). And because the regulatory scope of a patent is deter­ mined by the claims in the patent, the subsidiary findings that a court makes during claim construction contribute to rules that limit conduct by the public at large. Because they are governmental dispositions and provide rules that bind the public at large, patent claims resemble statutes. The scope of a patent holder’s monopoly right is defined by claims legally actualized through the proce­ dures established by Congress pursuant to its patent power. Thus, a patent holder’s actual intentions have effect only to the extent that they are expressed in the public record. See Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 279 (1877); see also Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 227 (1880) (examin­ ing “the avowed understanding of the patentee,” but dis­ claiming any holding that such understanding “c[ould] be allowed to enlarge, diminish, or vary the language of a patent afterwards issued”). Moreover, because the ultimate meaning of a patent claim, like the ultimate meaning of a statute, binds the public at large, it should not depend on the specific evi­ dence presented in a particular infringement case. Al­ though the party presentations shape even statutory con- struction, de novo review on appeal helps to ensure that the construction is not skewed by the specific evidence presented in a given case. C For purposes of construction, contracts and deeds are less natural analogies for patents. In particular, patents lack the characteristics of those instruments that have justified departing from the usual practice of treating document construction as a wholly legal inquiry, not sub­ 8 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting ject to subsidiary findings of fact. To be sure, we have occasionally characterized a patent as “a carefully crafted bargain” between the inventor and the public. Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 63 (1998); see also Kendall v. Winsor, 21 How. 322, 327–328 (1859); Grant v. Raymond, 6 Pet. 218, 242 (1832). But, as our decisions have also recognized, the patent is perhaps better characterized as a reward for feats already accom­ plished—that is, innovation and public disclosure—than as a mutual exchange of executory promises. See, e.g., Motion Picture Patents Co., supra, at 513; Seymour v. Osborne, 11 Wall. 516, 533–534 (1871); Grant, supra, at 242; see also Markman v. Westview Instruments, Inc., 52 F.3d 967, 985, n. 14 (CA Fed. 1995), aff ’d 517 U.S. 370 (1996) (distinguishing patents from contracts). In grant­ ing a patent, the Government is acting not as a party to a bilateral contract binding upon itself alone, but instead as a sovereign bestowing upon the inventor a right to exclude the public at large from the invention marked out by his claims. In this sense, patents are more closely analogous to deeds, Motion Picture Patents Co., supra, at 510 (collecting cases), because they share the common characteristic of describing rights that the owner holds against the world. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989). But in the context of land patents, we have been unwilling to interpret sovereign dispositions in the same way we interpret analogous private convey­ ances. See, e.g., Leo Sheep Co., 440 U.S., at 680–682; Missouri, K. & T. R. Co. v. Kansas Pacific R. Co., 97 U.S. 491, 497 (1878); Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733, 740–741 (1876); see also Marvin M. Brandt Revocable Trust, supra (interpreting a land grant as a statute rather than as a deed). We should not blithely extend the rules governing the construction of deeds to Cite as: 574 U. S. ____ (2015) 9 THOMAS, J., dissenting their even more distant cousins, invention patents.2 Bearing these differences in mind, the subsidiary facts relevant to the construction of patents, on the one hand, and contracts and deeds, on the other, differ substantially. As explained above, we have justified treating subsidiary determinations about the actual intentions of parties to contracts and deeds as findings of fact. But the subsidiary determinations about patent claims that the majority identifies as factual do not concern historical facts, such as what the parties agreed to do or how a given parcel of land —————— 2 The Anglo-American legal tradition has long distinguished between “core” private rights—including the traditional property rights repre­ sented by deeds—and other types of rights. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007) (Nelson). These other rights fall into two categories: “ ‘public rights belonging to the people at large,’ ” and “privileges” or “franchises,” “which public author­ ities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.” Id., at 566–567 Not­ withstanding a movement to recognize a “core” property right in inven­ tions, the English common law placed patents squarely in the final category, as franchises that “depend upon express legislation,” and “hath [their] essence by positive municipal law.” 7 W. Holdsworth, A History of English Law 479, n. 7, 480, and n. 4, 497 (1926). The distinc­ tion between “core” private rights, on the one hand, and public rights and government-created privileges, on the other, has traditionally had significant implications for the way in which rights are adjudicated. Nelson, supra. Thus, no matter how closely a franchise resembles some “core” private right, it does not follow that it must be subject to the same rules of judicial interpretation as its counterpart. Cases interpreting deeds and land patents exemplify this rule and show why the majority’s assertion that patents affect fewer people than statutes, in addition to being a dubious overgeneralization, is not a material distinction. Land patents are more like deeds than statutes in the sense that their effects are more localized, yet the judicial power approaches them differently because they dispose of public rights held by the government on behalf of the people, Nelson 566. See also The Binghamton Bridge, 3 Wall. 51, 75 (1866) (interpreting a state grant of a corporate charter as a “contract” but subject to the special common- law rule that all ambiguities must be construed in favor of the State because “in grants by the public nothing passes by implication”). 10 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting is situated. See William & James Brown & Co., 14 Pet., at 493; Reed, 8 How., at 289. For example, the “fact” of how a skilled artisan would understand a given term or phrase at a particular point in history is a legal fiction; it has no existence independent of the claim construction process. There is no actual “skilled artisan” who, at the moment the application was filed, formed an understanding of the terms of the claim—an understanding that an omniscient factfinder could ascer­ tain. Neither is the skilled artisan’s understanding a proxy for some external fact that, could the court know it, would supply the meaning of a patent claim. Whatever the scope of the inventor’s right under the patent before the introduction of claims, the law has limited that right to the claims as written in the patent. See Markman, supra, at 379. Our decision in Markman rested in part on this characteristic of claim construction, distinguishing it from other patent determinations that must go to a jury because they require the factfinder to inspect “ ‘an embod­ ied conception outside of the patent itself ’ ” or things “ ‘which have their existence in pais.’ ” 517 U.S., at 385– 386 (distinguishing Bischoff v. Wethered, 9 Wall. 812 (1870)). Because the skilled artisan inquiry in claim construction more closely resembles determinations categorized as “conclusions of law” than determinations categorized as “findings of fact,” I would hold that it falls outside the scope of Rule 52(a)(6) and is subject to de novo review. II A The majority makes little effort to justify its assertion that the subsidiary determinations a district court makes in the course of claim construction are findings of fact. And the few analogies that it attempts to draw either lack support or prove too much. Cite as: 574 U. S. ____ (2015) 11 THOMAS, J., dissenting For example, relying on Great Northern R. Co. v. Mer- chants Elevator Co., 259 U.S. 285, 292 (1922), the major- ity compares the search for the meaning of “ ‘technical words or phrases not commonly understood’ ” in claim construction to “questions of fact” about the scope of a railway tariff. See ante, at 6. It is true that, in Great Northern, the Court referred to questions of fact arising in the context of contract construction, which, it pointed out, must go to a jury. 259 U.S., at 292–293. But the Court’s conclusion that similar questions must be settled by the Interstate Commerce Commission (ICC) when they relate to the interpretation of a railway tariff merely proves the point that the allocation of a technical usage inquiry de­ pends upon the legal instrument that the court is constru­ ing. In that case, the Court was faced with a tariff filed with, and administered by, the ICC. And it was not con­ cerned with allocating evidentiary determinations be­ tween trial and appellate courts, but with allocating them between an agency and the judiciary. Id., at 289. So understood, the distinction the Court drew pertains more to an emerging rule of administrative deference than to a definitive classification of judicial determinations. Further reinforcing the point that the nature of the legal instrument dictates our treatment of subsidiary findings is that, although terms in statutes and regulations frequently have technical meanings unknown outside the special- ized community they are meant to regulate, we treat the inquiry into those meanings as involving only conclusions of law. See, e.g., Norfolk & Western R. Co. v. Hiles, 516 U.S. 400, 401–407, 413–414 (1996); Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390 (1984). The majority’s unexamined reliance on technical usage could be read to cast doubt on this prac­ tice, as well as on our holding in Markman that claim construction is exclusively for the court. If claim construc­ tion involves subsidiary questions of technical meaning or 12 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting usage that are indistinguishable from those questions submitted to the jury in the contract context, see 12 Wil­ liston §34:19, then one might wonder why such issues are not submitted to the jury in the patent and statute con­ texts, too. The majority also analogizes to the obviousness inquiry in patent law, which involves findings of fact subject to Rule 52(a)(6). Ante, at 11 (citing Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809, 811 (1986) (per curiam)). But this analogy is even further off the mark because obviousness turns on historical facts about the circum­ stances of the invention, rather than on the construction of a written instrument. Id., at 810–811. Cf. Markman, supra, at 386 (distinguishing the novelty inquiry from claim construction on these grounds). B Nor does the majority attempt to justify its holding by reference to which “ ‘judicial actor is better positioned . . . to decide the issue in question,’ ” Markman, supra, at 388—an inquiry that we have also treated as relevant to the classification of fact versus law, Miller, 474 U.S., at 114. In resolving issues of judicial administration, we have considered that federal appellate courts are “exposi­ tor[s] of law,” ibid., and have acknowledged that they are better positioned than district courts to promote uniform- ity, Markman, supra, at 390; see also Ornelas v. United States, 517 U.S. 690, 697–698 (1996). We have recog­ nized, however, that trial courts have a special competence in judging witness credibility and weighing the evidence, Miller, supra, at 114, and have been cautious not to waste judicial and party resources through needless relitigation, see Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). To the extent that the construction of a patent claim turns on testimony of expert witnesses, especially live testimony, there is no denying that it falls within the Cite as: 574 U. S. ____ (2015) 13 THOMAS, J., dissenting bounds of a district court’s special competence. But as we recognized in Markman, and as the majority is careful to reiterate today, “subsidiary factfinding is unlikely to loom large in the universe of litigated claim construction.” Ante, at 10. The majority’s reluctance to highlight “alloca­ tion,” Miller, supra at 113, is thus understandable. The arguments favoring allocation to the district court, dimin­ ished by the majority’s own prediction, are outweighed by the remaining rule-of-law and uniformity considerations that factored into our allocation in Markman, 517 U.S., at 388–391. 1 We have long been cautious not to allocate issues in a way that would “strip a federal appellate court of its pri­ mary function as an expositor of law.” Miller, 474 U.S., at 114. Although we have recognized that “an issue does not lose its factual character merely because its resolution is dispositive of the ultimate” dispute, id., at 113, we have been less inclined to defer to seemingly factual determina­ tions that play a dispositive role in the development of legal rules. For example, we have sanctioned de novo appellate review of the mixed determinations of “probable cause” and “reasonable suspicion” on the ground that “the legal rules . . . acquire content only through application.” Ornelas, supra, 697; see also Miller, supra, at 116. Al- though such determinations depend on the specific facts in a case, their role in shaping rules of law demand a de novo standard of review. As previously noted, patents are authoritative govern­ mental dispositions. Thus, when a judge construes a patent, he is, in a very real sense, “say[ing] what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), not just for the parties to the dispute, but for the public at large. It follows that, any time a district court’s claim construction turns on subsidiary evidentiary disputes, the 14 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting majority’s rule will distort the appellate court’s construc­ tion of the law by requiring it to defer to subsidiary deter­ minations that are dispositive as to its meaning. Surely the majority would not countenance such an abdication of the appellate court’s role in the construction of statutes. Yet the majority has not justified applying a different rule to the construction of legislative acts that take the form of a patent. 2 The need for uniformity in claim construction also weighs heavily in favor of de novo review of subsidiary evidentiary determinations. Uniformity is a critical fea­ ture of our patent system because “ ‘[t]he limits of a patent must be known for the protection of the patentee, the encouragement of the inventive genius of others and the assurance that the subject of the patent will be dedicated ultimately to the public.’ ” Markman, 517 U.S., at 390. If the boundaries of the patent right could shift from case to case, then the result would be “a ‘zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement.’ ” Ibid.; see also Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 731 (2002). So damaging is this unpredictability that we identified uniformity as an “independent” reason justify­ ing our allocation of claim construction to the court. See Markman, supra, at 390. The majority attempts to downplay the effect its deci­ sion will have on uniformity by pointing out that “prior cases [construing the same claim] will sometimes be bind­ ing because of issue preclusion, and sometimes will serve as persuasive authority.” Ante, at 9–10 (citing Markman, supra, at 391; citation omitted). But we have already rejected the notion that issue preclusion adequately safe­ guards the uniformity that our patent system requires. See Markman, supra, at 391. Cite as: 574 U. S. ____ (2015) 15 THOMAS, J., dissenting Perhaps the majority is correct that “subsidiary factfind­ ing is unlikely to loom large in the universe of litigated claim construction.” Ante, at 10. But I doubt it. If this case proves anything, it is that the line between fact and law is an uncertain one—made all the more uncertain by the majority’s failure to identify sound principles for the lines it draws. The majority’s rule provides litigants who prevail in district court a significant opportunity and incentive to take advantage of this uncertainty by arguing on appeal that the district court’s claim construction in­ volved subsidiary findings of fact. At best, today’s holding will spawn costly—and, if the majority is correct about the frequency with which these evidentiary determinations make a difference, meritless—collateral litigation over the line between law and fact. We generally avoid any rule of judicial administration that “results in a substantial expenditure of scarce judicial resources on difficult ques­ tions that have no effect on the outcome of the case,” Pear- son v. Callahan, 555 U.S. 223, 236–237 (2009), and there is no reason to embrace one here. But I fear worse: that today’s decision will result in fewer claim construction decisions receiving precedential effect, thereby injecting uncertainty into the world of invention and innovation. In short, the majority’s rule finds no support in either the historical understanding of “findings of fact” or consid­ erations of policy that have served as our guide when we have been confronted with a difficult question of fact-law classification. I would not adopt it. III The Court of Appeals reviewed de novo not only the District Court’s claim construction, but also its holding that the claims were sufficiently definite to satisfy 35 U.S. C. §112, ¶2 (2006 ed.). I would hold that the Court of Appeals correctly treated the indefiniteness inquiry as a question of law because it depends entirely on claim 16 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting construction. “[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable cer­ tainty, those skilled in the art about the scope of the in­ vention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 1). This standard falls somewhere between a notice requirement and a prohibi­ tion on ambiguity. See id., at ___ –___ (slip op., at 9–11). Determining whether a claim is indefinite is thus akin to other legal inquiries commonly performed in the course of interpreting written instruments. See, e.g., Mayo Founda- tion for Medical Ed. and Research v. United States, 562 U.S. 44, 52–53 (2011) (reviewing without deference the district court’s determination that a statute is unambigu­ ous at step one of Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U.S. 837 (1984)); 11 Williston §30:5, at 75 (“The determination of whether a contract is ambiguous is a question of law for the court”). Thus, a holding that a patent satisfies the definiteness requirement does not turn on “findings of fact” as that term is used in Rule 52(a)(6), and the Court of Appeals properly applied a de novo standard of review. * * * Although it relied on expert testimony to understand the science underlying petitioners’ claims, the District Court made no “findings of fact” as that term is used in Rule 52(a)(6). Thus, the Court of Appeals properly re­ viewed the District Court’s conclusions of law de novo. I respectfully dissent

I agree with the Court’s conclusion that there is no special exception to Federal Rule of Civil Procedure 52(a)(6) for claim construction. But that is not the ques­ tion in this case. Because Rule 52(a)(6) provides for clear error review only of “findings of fact” and “does not apply to conclusions of law,” -Standard v. Swint, 456 U.S. 273, 287 (1982), the question here is whether claim construction involves findings of fact.1 Because it does not, Rule 52(a)(6) does not apply, and the Court of Appeals properly applied a de novo standard of review. I In reaching the contrary conclusion, the majority fails to —————— 1 The majority argues that we are bound by petitioners’ phrasing of the question presented and by respondents’ concession at oral argu­ ment that claim construction “will sometimes require subsidiary factfinding.” Ante, at 10–11. But the parties’ stipulations that claim construction involves subsidiary factual determinations, with which I do not quarrel, do not settle the question whether those determinations are “findings of fact” within the meaning of Rule 52(a)(6). And to the extent that the majority premises its holding on what it sees as stipula­ tions that these determinations are “findings of fact” for purposes of Rule 52(a)(6), then its holding applies only to the present dispute, and other parties remain free to contest this premise in the future. 2 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting engage the “vexing distinction between questions of fact and questions of law.” Unfortunately, “Rule 52(a) does not furnish particular guidance with respect to distinguishing law from fact,” and we have found it difficult to discern “any other rule or principle that will unerringly” differentiate the two. That inquiry is thus not as simple as pointing out the undeni- able “evidentiary underpinnings” of claim construction. Ante, at 10–11. Instead, we must consider how “findings of fact” and “conclusions of law” were understood at the time Rule 52 was adopted. Cf. 168 (SCALIA, J., concurring in part and concurring in judgment) (noting that, because the federal rules have their background in common-law principles, “the body of common law knowledge must be a source of guidance in our interpretation of the Rules” (internal quotation marks omitted)). Unfortunately, the pre-1937 evidence of this Court’s treatment of evidentiary determinations underly­ ing claim construction is inconclusive. In several deci­ sions, the Court considered extrinsic evidence related to claim construction with no apparent deference to the District Courts’ findings based on that evidence. Coupe v. Royer, ; Loom v. Higgins, 105 U.S. 580, 584–587 (1882); Tilghman v. Proctor, 102 U.S. 707, 729– (1881); 339 (1854). None of those decisions, however, expressly turned on a disagreement over a subsidiary evidentiary determination. Absent specific evidence of the treatment of a particular issue at the time Rule 52 was adopted, we have drawn analogies to the treatment of other issues under Rule 52(a)(6). See, e.g., In general, we have treated district-court determinations as “analytically more akin to a fact” the more they pertain to a simple historical fact of the case, and as “analytically more akin Cite as: 574 U. S. (2015) 3 THOMAS, J., dissenting to a legal conclusion” the more they define rules appli­ cable beyond the parties’ dispute. v. Fenton, 474 U.S. 104, 116 ; see also Bose ; Baum- Under this approach, determinations underlying claim construc­ tion fall on the law side of the dividing line. A Patents are written instruments, so other written in­ struments supply the logical analogy. See v. Westview Instruments, Inc., And as the majority recognizes, the construction of written instruments is generally a question of law. See ante, at 5. But in certain contexts, a court construing a written in­ strument makes subsidiary determinations that the law treats as findings of fact. The classic case of a written instrument whose construc­ tion does not involve subsidiary findings of fact is a stat­ ute. Our treatment of subsidiary evidentiary findings underlying statutory construction as conclusions of law makes sense for two reasons. First, although statutory construction may demand some inquiry into legislative “intent,” that inquiry is an- alytically legal: The meaning of a statute does not turn on what an individual lawmaker intended as a matter of fact, but only on what intent has been enacted into law through the constitutionally defined channels of bicamer­ alism and presentment. See Wyeth v. Levine, 555 U.S. 555, 587 (THOMAS, J., concurring in judgment). This remains so even if deciding what passed through those channels requires a court to determine a “fact” of historical understanding through an examination of ex­ trinsic evidence. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 714–715 (2004) (examining the historical under­ standing of the term “law of nations” when the Alien Tort 4 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting Statute was enacted); see also, e.g., (THOMAS, J., concurring in judgment) (construing a consti­ tutional provision by asking how the words were originally understood and marshaling evidence of that understand­ ing). The Court has given no hint that this practice changes when the statute it construes is a land patent— that is, a public land grant. See Leo Sheep (making detailed histori­ cal findings in the course of construing a land grant be­ cause “ ‘courts, in construing a statute, may with propriety recur to the history of the times when it was passed in order to ascertain the reason as well as the meaning of particular provisions in it’ ”); see also Marvin M. Brandt Revocable v. United States, 572 U. S. (2014) (slip op., at 10) (looking to the historical background against which a land grant was passed to confirm its interpretation). Second, statutes govern the rights and duties of the public as a whole, so subsidiary evidentiary findings shape legal rules that apply far beyond the boundaries of the dispute involved. Our rules of construction for legislative acts have long been consciously shaped by the public’s stake in those acts. See, e.g., The Binghamton Bridge, 3 Wall. 51, (describing a rule of construction bor­ rowed from English common law and reflected in the decisions of the several States). The construction of contracts and deeds, by contrast, sometimes involves subsidiary findings of fact. Our treatment of subsidiary evidentiary findings as findings of fact in this context makes sense because, in construing contracts and deeds, “the avowed purpose and primary function of the court is to ascertain the intention of the parties.” 11 R. Lord, Williston on Contracts pp. 17– 18 (4th ed. 2012) (Williston); see also 288– Cite as: 574 U. S. (2015) 5 THOMAS, J., dissenting 289 (1850). Sometimes that intention is clearly “set forth in the express language of the contract,” 11 Williston at 341–342, so no subsidiary findings of fact are necessary to its construction, But when ambi­ guities require a court to look beyond the express lan­ guage, its search for intent becomes factual in nature. That search focuses on “real intention[s]”—embodied in an actual meeting of minds or an actual conveyance of a physical parcel of land—that have an existence outside the written instrument and that the instrument merely rec­ ords. See William & James Brown & v. McGran, 14 Pet. 479, 493 (1840) (Story, J.); See generally Union Pacific R. v. United States, 10 Ct. Cl. 548, 577–578 (1874) (declining to interpret a contract-like statute according to contract rules because “[a]ll the terms of the compact are dictated and accepted by one side, and the only intent which judicial construction can make certain is the intent of the legislative power”), cited in 3 N. Singer, Sutherland on Statutory Construction p. 405, n. 6 (7th ed. 2008). Of course, not all subsidiary inquiries that a court makes in the course of construing contracts amount to findings of fact. For example, when a court searches for the meaning that a hypothetical person “conversant with the subject-matter with which the contract is dealing” would give to the words of the contract, its conclusion often remains one of law. Silver King Coalition Mines of Nevada v. Silver King Consol. Mining of Utah, 204 F. 166 (CA8 1913), cited in Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 52, 28 U.S. C. App., p. 686. The question we must ask, then, is whether the subsidi­ ary findings underlying claim construction more closely resemble the subsidiary findings underlying the construc­ tion of statutes or those underlying the construction of contracts and deeds that are treated as findings of fact. This, in turn, depends on whether patent claims are more 6 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting like statutes or more like contracts and deeds. B A patent, generally speaking, is “an official document reflecting a grant by a sovereign that is made public, or ‘patent.’ ” Marvin M. Brandt Revocable at (slip op., at 5). Invention patents originated not as private property rights, but as royal prerogatives. See 4 W. Holdsworth, A History of English Law 350–351 (1924). They could be issued and revoked only by the Crown, which sometimes used the patent to delegate governmen­ tal power to regulate an industry. at 344–347. Pro­ voked by the Crown’s use of these so-called “monopoly patents” to promote private economic interests over inno­ vation and beneficial commerce, Parliament enacted the Statute of Monopolies in 1624. But even under the regime that Parliament put in place, patents remained sovereign grants, issued, enforced, and revoked by the Privy Council. Lemley, Why Do Juries Decide if Patents are Valid? The Framers adopted a similar scheme. Article I of the U. S. Constitution vests the patent power in Congress, authorizing it “[t]o 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.” U. S. Const. Art. I, cl. 8. Although Congress could issue such patents as special statutes, see, e.g., it has mostly acted by authorizing the Executive Branch to issue patents when certain statutory requirements are met. See 35 U.S. C. see also Act of July 8, 1870, ; Act of July 4, 1836, ; Act of Apr. 10, 1790, ch. 7, –110. Like the royal prerogatives that were their historical antecedents, patents have a regulatory effect: They “re­ strain others from manufacturing, using or selling that Cite as: 574 U. S. (2015) 7 THOMAS, J., dissenting which [the patent holder] has invented” for a specified period of time. Motion Picture Patents And because the regulatory scope of a patent is deter­ mined by the claims in the patent, the subsidiary findings that a court makes during claim construction contribute to rules that limit conduct by the public at large. Because they are governmental dispositions and provide rules that bind the public at large, patent claims resemble statutes. The scope of a patent holder’s monopoly right is defined by claims legally actualized through the proce­ dures established by Congress pursuant to its patent power. Thus, a patent holder’s actual intentions have effect only to the extent that they are expressed in the public record. See Keystone Bridge ; see also Goodyear Dental Vulcanite (examin­ ing “the avowed understanding of the patentee,” but dis­ claiming any holding that such understanding “c[ould] be allowed to enlarge, diminish, or vary the language of a patent afterwards issued”). Moreover, because the ultimate meaning of a patent claim, like the ultimate meaning of a statute, binds the public at large, it should not depend on the specific evi­ dence presented in a particular infringement case. Al­ though the party presentations shape even statutory con- struction, de novo review on appeal helps to ensure that the construction is not skewed by the specific evidence presented in a given case. C For purposes of construction, contracts and deeds are less natural analogies for patents. In particular, patents lack the characteristics of those instruments that have justified departing from the usual practice of treating document construction as a wholly legal inquiry, not sub­ 8 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting ject to subsidiary findings of fact. To be sure, we have occasionally characterized a patent as “a carefully crafted bargain” between the inventor and the public. (1998); see also 327–328 (1859); But, as our decisions have also recognized, the patent is perhaps better characterized as a reward for feats already accom­ plished—that is, innovation and public disclosure—than as a mutual exchange of executory promises. See, e.g., Motion Picture Patents ; Seymour v. Osborne, ; at ; see also v. Westview Instruments, Inc., 52 F.3d 967, 985, n. 14 aff ’d (distinguishing patents from contracts). In grant­ ing a patent, the Government is acting not as a party to a bilateral contract binding upon itself alone, but instead as a sovereign bestowing upon the inventor a right to exclude the public at large from the invention marked out by his claims. In this sense, patents are more closely analogous to deeds, Motion Picture Patents at (collecting cases), because they share the common characteristic of describing rights that the owner holds against the world. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989). But in the context of land patents, we have been unwilling to interpret sovereign dispositions in the same way we interpret analogous private convey­ ances. See, e.g., Leo Sheep –682; Missouri, K. & T. R. v. Kansas Pacific R. 97 U.S. 491, 497 (1878); Leavenworth, L. & G. R. ; see also Marvin M. Brandt Revocable (interpreting a land grant as a statute rather than as a deed). We should not blithely extend the rules governing the construction of deeds to Cite as: 574 U. S. (2015) 9 THOMAS, J., dissenting their even more distant cousins, invention patents.2 Bearing these differences in mind, the subsidiary facts relevant to the construction of patents, on the one hand, and contracts and deeds, on the other, differ substantially. As explained above, we have justified treating subsidiary determinations about the actual intentions of parties to contracts and deeds as findings of fact. But the subsidiary determinations about patent claims that the majority identifies as factual do not concern historical facts, such as what the parties agreed to do or how a given parcel of land —————— 2 The Anglo-American legal tradition has long distinguished between “core” private rights—including the traditional property rights repre­ sented by deeds—and other types of rights. Adjudication in the Political Branches, These other rights fall into two categories: “ ‘public rights belonging to the people at large,’ ” and “privileges” or “franchises,” “which public author­ ities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.” at 566– Not­ withstanding a movement to recognize a “core” property right in inven­ tions, the English common law placed patents squarely in the final category, as franchises that “depend upon express legislation,” and “hath [their] essence by positive municipal law.” 7 W. Holdsworth, A History of English Law 479, n. 7, 480, and n. 4, 497 (1926). The distinc­ tion between “core” private rights, on the one hand, and public rights and government-created privileges, on the other, has traditionally had significant implications for the way in which rights are adjudicated. Thus, no matter how closely a franchise resembles some “core” private right, it does not follow that it must be subject to the same rules of judicial interpretation as its counterpart. Cases interpreting deeds and land patents exemplify this rule and show why the majority’s assertion that patents affect fewer people than statutes, in addition to being a dubious overgeneralization, is not a material distinction. Land patents are more like deeds than statutes in the sense that their effects are more localized, yet the judicial power approaches them differently because they dispose of public rights held by the government on behalf of the people, 566. See also The Binghamton Bridge, (interpreting a state grant of a corporate charter as a “contract” but subject to the special common- law rule that all ambiguities must be construed in favor of the State because “in grants by the public nothing passes by implication”). 10 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting is situated. See William & James Brown & 14 Pet., at 493; 8 How., For example, the “fact” of how a skilled artisan would understand a given term or phrase at a particular point in history is a legal fiction; it has no existence independent of the claim construction process. There is no actual “skilled artisan” who, at the moment the application was filed, formed an understanding of the terms of the claim—an understanding that an omniscient factfinder could ascer­ tain. Neither is the skilled artisan’s understanding a proxy for some external fact that, could the court know it, would supply the meaning of a patent claim. Whatever the scope of the inventor’s right under the patent before the introduction of claims, the law has limited that right to the claims as written in the patent. See Our decision in rested in part on this characteristic of claim construction, distinguishing it from other patent determinations that must go to a jury because they require the factfinder to inspect “ ‘an embod­ ied conception outside of the patent itself ’ ” or things “ ‘which have their existence in pais.’ ” – 386 (distinguishing (1870)). Because the skilled artisan inquiry in claim construction more closely resembles determinations categorized as “conclusions of law” than determinations categorized as “findings of fact,” I would hold that it falls outside the scope of Rule 52(a)(6) and is subject to de novo review. II A The majority makes little effort to justify its assertion that the subsidiary determinations a district court makes in the course of claim construction are findings of fact. And the few analogies that it attempts to draw either lack support or prove too much. Cite as: 574 U. S. (2015) 11 THOMAS, J., dissenting For example, relying on Great Northern R. v. Mer- chants Elevator the major- ity compares the search for the meaning of “ ‘technical words or phrases not commonly understood’ ” in claim construction to “questions of fact” about the scope of a railway tariff. See ante, at 6. It is true that, in Great Northern, the Court referred to questions of fact arising in the context of contract construction, which, it pointed out, must go to a 259 U.S., at –293. But the Court’s conclusion that similar questions must be settled by the Interstate Commerce Commission (ICC) when they relate to the interpretation of a railway tariff merely proves the point that the allocation of a technical usage inquiry de­ pends upon the legal instrument that the court is constru­ ing. In that case, the Court was faced with a tariff filed with, and administered by, the ICC. And it was not con­ cerned with allocating evidentiary determinations be­ tween trial and appellate courts, but with allocating them between an agency and the judiciary. So understood, the distinction the Court drew pertains more to an emerging rule of administrative deference than to a definitive classification of judicial determinations. Further reinforcing the point that the nature of the legal instrument dictates our treatment of subsidiary findings is that, although terms in statutes and regulations frequently have technical meanings unknown outside the special- ized community they are meant to regulate, we treat the inquiry into those meanings as involving only conclusions of law. See, e.g., Norfolk & Western R. v. Hiles, 516 U.S. 400, 401–407, 413–414 ; Aluminum of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390 The majority’s unexamined reliance on technical usage could be read to cast doubt on this prac­ tice, as well as on our holding in that claim construction is exclusively for the court. If claim construc­ tion involves subsidiary questions of technical meaning or 12 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting usage that are indistinguishable from those questions submitted to the jury in the contract context, see 12 Wil­ liston then one might wonder why such issues are not submitted to the jury in the patent and statute con­ texts, too. The majority also analogizes to the obviousness inquiry in patent law, which involves findings of fact subject to Rule 52(a)(6). Ante, at 11 ). But this analogy is even further off the mark because obviousness turns on historical facts about the circum­ stances of the invention, rather than on the construction of a written instrument. at 810–. Cf. (distinguishing the novelty inquiry from claim construction on these grounds). B Nor does the majority attempt to justify its holding by reference to which “ ‘judicial actor is better positioned to decide the issue in question,’ ” at 388—an inquiry that we have also treated as relevant to the classification of fact versus law, 474 U.S., at 114. In resolving issues of judicial administration, we have considered that federal appellate courts are “exposi­ tor[s] of law,” ib and have acknowledged that they are better positioned than district courts to promote uniform- ity, ; see also We have recog­ nized, however, that trial courts have a special competence in judging witness credibility and weighing the evidence, and have been cautious not to waste judicial and party resources through needless relitigation, see 5 To the extent that the construction of a patent claim turns on testimony of expert witnesses, especially live testimony, there is no denying that it falls within the Cite as: 574 U. S. (2015) 13 THOMAS, J., dissenting bounds of a district court’s special competence. But as we recognized in and as the majority is careful to reiterate today, “subsidiary factfinding is unlikely to loom large in the universe of litigated claim construction.” Ante, at 10. The majority’s reluctance to highlight “alloca­ tion,” is thus understandable. The arguments favoring allocation to the district court, dimin­ ished by the majority’s own prediction, are outweighed by the remaining rule-of-law and uniformity considerations that factored into our allocation in 517 U.S., at 388–391. 1 We have long been cautious not to allocate issues in a way that would “strip a federal appellate court of its pri­ mary function as an expositor of law.” 474 U.S., at 114. Although we have recognized that “an issue does not lose its factual character merely because its resolution is dispositive of the ultimate” dispute, we have been less inclined to defer to seemingly factual determina­ tions that play a dispositive role in the development of legal rules. For example, we have sanctioned de novo appellate review of the mixed determinations of “probable cause” and “reasonable suspicion” on the ground that “the legal rules acquire content only through application.” ; see also Al- though such determinations depend on the specific facts in a case, their role in shaping rules of law demand a de novo standard of review. As previously noted, patents are authoritative govern­ mental dispositions. Thus, when a judge construes a patent, he is, in a very real sense, “say[ing] what the law is,” not just for the parties to the dispute, but for the public at large. It follows that, any time a district court’s claim construction turns on subsidiary evidentiary disputes, the 14 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting majority’s rule will distort the appellate court’s construc­ tion of the law by requiring it to defer to subsidiary deter­ minations that are dispositive as to its meaning. Surely the majority would not countenance such an abdication of the appellate court’s role in the construction of statutes. Yet the majority has not justified applying a different rule to the construction of legislative acts that take the form of a patent. 2 The need for uniformity in claim construction also weighs heavily in favor of de novo review of subsidiary evidentiary determinations. Uniformity is a critical fea­ ture of our patent system because “ ‘[t]he limits of a patent must be known for the protection of the patentee, the encouragement of the inventive genius of others and the assurance that the subject of the patent will be dedicated ultimately to the public.’ ” 517 U.S., If the boundaries of the patent right could shift from case to case, then the result would be “a ‘zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement.’ ” ; see also Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki (2002). So damaging is this unpredictability that we identified uniformity as an “independent” reason justify­ ing our allocation of claim construction to the court. See The majority attempts to downplay the effect its deci­ sion will have on uniformity by pointing out that “prior cases [construing the same claim] will sometimes be bind­ ing because of issue preclusion, and sometimes will serve as persuasive authority.” Ante, at 9–10 (citing ; citation omitted). But we have already rejected the notion that issue preclusion adequately safe­ guards the uniformity that our patent system requires. See Cite as: 574 U. S. (2015) 15 THOMAS, J., dissenting Perhaps the majority is correct that “subsidiary factfind­ ing is unlikely to loom large in the universe of litigated claim construction.” Ante, at 10. But I doubt it. If this case proves anything, it is that the line between fact and law is an uncertain one—made all the more uncertain by the majority’s failure to identify sound principles for the lines it draws. The majority’s rule provides litigants who prevail in district court a significant opportunity and incentive to take advantage of this uncertainty by arguing on appeal that the district court’s claim construction in­ volved subsidiary findings of fact. At best, today’s holding will spawn costly—and, if the majority is correct about the frequency with which these evidentiary determinations make a difference, meritless—collateral litigation over the line between law and fact. We generally avoid any rule of judicial administration that “results in a substantial expenditure of scarce judicial resources on difficult ques­ tions that have no effect on the outcome of the case,” Pear- and there is no reason to embrace one here. But I fear worse: that today’s decision will result in fewer claim construction decisions receiving precedential effect, thereby injecting uncertainty into the world of invention and innovation. In short, the majority’s rule finds no support in either the historical understanding of “findings of fact” or consid­ erations of policy that have served as our guide when we have been confronted with a difficult question of fact-law classification. I would not adopt it. III The Court of Appeals reviewed de novo not only the District Court’s claim construction, but also its holding that the claims were sufficiently definite to satisfy 35 U.S. C. ¶2 (2006 ed.). I would hold that the Court of Appeals correctly treated the indefiniteness inquiry as a question of law because it depends entirely on claim 16 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC. THOMAS, J., dissenting construction. “[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable cer­ tainty, those skilled in the art about the scope of the in­ vention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. (2014) (slip op., at 1). This standard falls somewhere between a notice requirement and a prohibi­ tion on ambiguity. See at – (slip op., at 9–11). Determining whether a claim is indefinite is thus akin to other legal inquiries commonly performed in the course of interpreting written instruments. See, e.g., Mayo Founda- tion for Medical Ed. and Research v. United States, 562 U.S. 44, 52–53 (2011) ); 11 Williston at (“The determination of whether a contract is ambiguous is a question of law for the court”). Thus, a holding that a patent satisfies the definiteness requirement does not turn on “findings of fact” as that term is used in Rule 52(a)(6), and the Court of Appeals properly applied a de novo standard of review. * * * Although it relied on expert testimony to understand the science underlying petitioners’ claims, the District Court made no “findings of fact” as that term is used in Rule 52(a)(6). Thus, the Court of Appeals properly re­ viewed the District Court’s conclusions of law de novo. I respectfully dissent

Justice Marshall

dissenting

Florida v. Jimeno

https://www.courtlistener.com/opinion/112595/florida-v-jimeno/

https://www.courtlistener.com/api/rest/v3/clusters/112595/

1990-079

The question in this case is whether an individual's general consent to a search of the interior of his car for narcotics should reasonably be understood as consent to a search of closed containers inside the car. Nothing in today's opinion dispels my belief that the two are not one and the same from the consenting individual's standpoint. Consequently, an individual's consent to a search of the interior of his car should not be understood to authorize a search of closed containers inside the car. I dissent. *253 In my view, analysis of this question must start by identifying the differing expectations of privacy that attach to cars and closed containers. It is well established that an individual has but a limited expectation of privacy in the interior of his car. A car ordinarily is not used as a residence or repository for one's personal effects, and its passengers and contents are generally exposed to public view. See Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion). Moreover, cars "are subjected to pervasive and continuing governmental regulation and controls," South Dakota v. Opperman, 428 U.S. 364, 368 (1976), and may be seized by the police when necessary to protect public safety or to facilitate the flow of traffic, see id., at 368-369. In contrast, it is equally well established that an individual has a heightened expectation of privacy in the contents of a closed container. See, e. g., United States v. Chadwick, 433 U.S. 1, 13 (1977). Luggage, handbags, paper bags, and other containers are common repositories for one's papers and effects, and the protection of these items from state intrusion lies at the heart of the Fourth Amendment. U. S. Const., Amdt. 4 ("The right of the people to be secure in their . . . papers, and effects, against unreasonable searches and seizures, shall not be violated"). By placing his possessions inside a container, an individual manifests an intent that his possessions be "preserve[d] as private," Katz v. United States, 389 U.S. 347, 351 (1967), and thus kept "free from public examination," United States v. Chadwick, supra, at 11. The distinct privacy expectations that a person has in a car as opposed to a closed container do not merge when the individual uses his car to transport the container. In this situation, the individual still retains a heightened expectation of privacy in the container. See Robbins v. California, 453 U.S. 420, 425 (1981) (plurality opinion); Arkansas v. Sanders, 442 U.S. 753, 763-764 (1979). Nor does an individual's heightened expectation of privacy turn on the type of container *254 in which he stores his possessions. Notwithstanding the majority's suggestion to the contrary, see ante, at 251-252, this Court has soundly rejected any distinction between "worthy" containers, like locked briefcases, and "unworthy" containers, like paper bags. "Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case." United States v. Ross, 456 U.S. 798, 822 (1982) (footnotes omitted). Because an individual's expectation of privacy in a container is distinct from, and far greater than, his expectation of privacy in the interior of his car, it follows that an individual's consent to a search of the interior of his car cannot necessarily be understood as extending to containers in the car. At the very least, general consent to search the car is ambiguous with respect to containers found inside the car. In my view, the independent and divisible nature of the privacy interests in cars and containers mandates that a police officer who wishes to search a suspicious container found during a consensual automobile search obtain additional consent to search the container. If the driver intended to authorize search of the container, he will say so; if not, then he will say no.[*] The only objection that the police could have to such a *255 rule is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages. According to the majority, it nonetheless is reasonable for a police officer to construe generalized consent to search an automobile for narcotics as extending to closed containers, because "[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container." Ante, at 251. This is an interesting contention. By the same logic a person who consents to a search of the car from the driver's seat could also be deemed to consent to a search of his person or indeed of his body cavities, since a reasonable person may be expected to know that drug couriers frequently store their contraband on their persons or in their body cavities. I suppose (and hope) that even the majority would reject this conclusion, for a person who consents to the search of his car for drugs certainly does not consent to a search of things other than his car for drugs. But this example illustrates that if there is a reason for not treating a closed container as something "other than" the car in which it sits, the reason cannot be based on intuitions about where people carry drugs. The majority, however, never identifies a reason for conflating the distinct privacy expectations that a person has in a car and in closed containers. The majority also argues that the police should not be required to secure specific consent to search a closed container, because "`[t]he community has a real interest in encouraging consent.'" Ante, at 252, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973). I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently, the majority's real concern is that if the police were required to ask for additional consent to search a closed container found during the *256 consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that "the community has a real interest" not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates. Almost 20 years ago, this Court held that an individual could validly "consent" to a search—or, in other words, waive his right to be free from an otherwise unlawful search—without being told that he had the right to withhold his consent. See Schneckloth v. Bustamonte, supra. In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here. "I must conclude, with some reluctance, that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be "practical" for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb." 412 U.S., at 288. I dissent.

The question in this case is whether an individual's general consent to a search of the interior of his car for narcotics should reasonably be understood as consent to a search of closed containers inside the car. Nothing in today's opinion dispels my belief that the two are not one and the same from the consenting individual's standpoint. Consequently, an individual's consent to a search of the interior of his car should not be understood to authorize a search of closed containers inside the car. I dissent. *253 In my view, analysis of this question must start by identifying the differing expectations of privacy that attach to cars and closed containers. It is well established that an individual has but a limited expectation of privacy in the interior of his car. A car ordinarily is not used as a residence or repository for one's personal effects, and its passengers and contents are generally exposed to public view. See Moreover, cars "are subjected to pervasive and continuing governmental regulation and controls," South and may be seized by the police when necessary to protect public safety or to facilitate the flow of traffic, see at -369. In contrast, it is equally well established that an individual has a heightened expectation of privacy in the contents of a closed container. See, e. g., United Luggage, handbags, paper bags, and other containers are common repositories for one's papers and effects, and the protection of these items from state intrusion lies at the heart of the Fourth Amendment. U. S. Const., Amdt. 4 ("The right of the people to be secure in their papers, and effects, against unreasonable searches and seizures, shall not be violated"). By placing his possessions inside a container, an individual manifests an intent that his possessions be "preserve[d] as private," and thus kept "free from public examination," United The distinct privacy expectations that a person has in a car as opposed to a closed container do not merge when the individual uses his car to transport the container. In this situation, the individual still retains a heightened expectation of privacy in the container. See ; Nor does an individual's heightened expectation of privacy turn on the type of container *254 in which he stores his possessions. Notwithstanding the majority's suggestion to the contrary, see ante, at 251-252, this Court has soundly rejected any distinction between "worthy" containers, like locked briefcases, and "unworthy" containers, like paper bags. "Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case." United Because an individual's expectation of privacy in a container is distinct from, and far greater than, his expectation of privacy in the interior of his car, it follows that an individual's consent to a search of the interior of his car cannot necessarily be understood as extending to containers in the car. At the very least, general consent to search the car is ambiguous with respect to containers found inside the car. In my view, the independent and divisible nature of the privacy interests in cars and containers mandates that a police officer who wishes to search a suspicious container found during a consensual automobile search obtain additional consent to search the container. If the driver intended to authorize search of the container, he will say so; if not, then he will say no.[*] The only objection that the police could have to such a *255 rule is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages. According to the majority, it nonetheless is reasonable for a police officer to construe generalized consent to search an automobile for narcotics as extending to closed containers, because "[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container." Ante, at 251. This is an interesting contention. By the same logic a person who consents to a search of the car from the driver's seat could also be deemed to consent to a search of his person or indeed of his body cavities, since a reasonable person may be expected to know that drug couriers frequently store their contraband on their persons or in their body cavities. I suppose (and hope) that even the majority would reject this conclusion, for a person who consents to the search of his car for drugs certainly does not consent to a search of things other than his car for drugs. But this example illustrates that if there is a reason for not treating a closed container as something "other than" the car in which it sits, the reason cannot be based on intuitions about where people carry drugs. The majority, however, never identifies a reason for conflating the distinct privacy expectations that a person has in a car and in closed containers. The majority also argues that the police should not be required to secure specific consent to search a closed container, because "`[t]he community has a real interest in encouraging consent.'" Ante, at 252, quoting I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently, the majority's real concern is that if the police were required to ask for additional consent to search a closed container found during the *256 consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that "the community has a real interest" not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates. Almost 20 years ago, this Court held that an individual could validly "consent" to a search—or, in other words, waive his right to be free from an otherwise unlawful search—without being told that he had the right to withhold his consent. See In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here. "I must conclude, with some reluctance, that when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be "practical" for the police to ignore the commands of the Fourth Amendment, if by practicality we mean that more criminals will be apprehended, even though the constitutional rights of innocent people also go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb." I dissent.

Justice Rehnquist

majority

Metropolitan Edison Co. v. People Against Nuclear Energy

https://www.courtlistener.com/opinion/110903/metropolitan-edison-co-v-people-against-nuclear-energy/

https://www.courtlistener.com/api/rest/v3/clusters/110903/

1982-059

The issue in these cases is whether petitioner Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act of 1969, 83 Stat. 852, as amended, 42 U.S. C. § 4321 et seq. (1976 ed. and Supp. V) (NEPA), when it considered whether to permit petitioner Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant (TMI-1). The Court of Appeals for the District of Columbia Circuit held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community well-being of residents of the surrounding area. 219 U. S. App. D. C. 358, 678 F.2d 222 (1982). We reverse. Metropolitan owns two nuclear powerplants at Three Mile Island near Harrisburg, Pa. Both of these plants were licensed by the NRC after extensive proceedings, which included preparation of Environmental Impact Statements (EIS's). On March 28, 1979, TMI-1 was not operating; it had been shut down for refueling. TMI-2 was operating, and it suffered a serious accident that damaged the reactor.[1] Although, as it turned out, no dangerous radiation was released, *769 the accident caused widespread concern. The Governor of Pennsylvania recommended an evacuation of all pregnant women and small children, and many area residents did leave their homes for several days. After the accident, the NRC ordered Metropolitan to keep TMI-1 shut down until it had an opportunity to determine whether the plant could be operated safely. 44 Fed. Reg. 40461 (1979). The NRC then published a notice of hearing specifying several safety-related issues for consideration. Metropolitan Edison Co., 10 N. R. C. 141 (1979). The notice stated that the Commission had not determined whether to consider psychological harm or other indirect effects of the accident or of renewed operation of TMI-1. It invited interested parties to submit briefs on this issue. Id., at 148. Respondent People Against Nuclear Energy (PANE) intervened and responded to this invitation. PANE is an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor. PANE contended that restarting TMI-1 would cause both severe psychological health damage to persons living in the vicinity, and serious damage to the stability, cohesiveness, and well-being of the neighboring communities.[2] *770 The NRC decided not to take evidence concerning PANE's contentions. Metropolitan Edison Co., 12 N. R. C. 607 (1980); Metropolitan Edison Co., 14 N. R. C. 593 (1981).[3] PANE filed a petition for review in the Court of Appeals, contending that both NEPA and the Atomic Energy Act of 1954, 68 Stat. 921, as amended, 42 U.S. C. § 2011 et seq. (1976 ed. and Supp. V), require the NRC to address its contentions.[4] Metropolitan intervened on the side of the NRC. *771 The Court of Appeals concluded that the Atomic Energy Act does not require the NRC to address PANE's contentions. 219 U. S. App. D. C., at 385-389, 678 F.2d, at 249-253. It did find, however, that NEPA requires the NRC to evaluate "the potential psychological health effects of operating" TMI-1 which have arisen since the original EIS was prepared. Id., at 371, 678 F.2d, at 235. It also held that, if the NRC finds that significant new circumstances or information exist on this subject, it shall prepare a "supplemental [EIS] which considers not only the effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island." Id., at 371-372, 678 F.2d, at 235-236. We granted certiorari.[5] 459 U.S. 966 (1982). All the parties agree that effects on human health can be cognizable under NEPA, and that human health may include psychological health. The Court of Appeals thought these propositions were enough to complete a syllogism that disposes of the case: NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health asserted by PANE. See 219 U. S. App. D. C., at 364, 678 F.2d, at 228. PANE, using similar reasoning, contends that because the psychological health damage to its members would be caused by a change in the environment (renewed operation of TMI-1), NEPA requires the NRC to consider that damage. See Brief for *772 Respondents 23. Although these arguments are appealing at first glance, we believe they skip over an essential step in the analysis. They do not consider the closeness of the relationship between the change in the environment and the "effect" at issue. Section 102(C) of NEPA, 83 Stat. 853, 42 U.S. C. § 4332(C), directs all federal agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — "(i) the environmental impact of the proposed action, [and] "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented . . . ." To paraphrase the statutory language in light of the facts of this case, where an agency action significantly affects the quality of the human environment, the agency must evaluate the "environmental impact" and any unavoidable adverse environmental effects of its proposal. The theme of § 102 is sounded by the adjective "environmental": NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word "environmental" out of its context and give it the broadest possible definition, the words "adverse environmental effects" might embrace virtually any consequence of a governmental action that someone thought "adverse." But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment. The statements of two principal sponsors of NEPA, explaining to their colleagues the Conference Report on the bill that was ultimately enacted, illustrate this point: *773 "What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: That we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth." 115 Cong. Rec. 40416 (1969) (remarks of Sen. Jackson) (emphasis supplied). "[W]e can now move forward to preserve and enhance our air, aquatic, and terrestrial environments . . . to carry out the policies and goals set forth in the bill to provide each citizen of this great country a healthful environment." Id., at 40924 (remarks of Rep. Dingell) (emphasis supplied). Thus, although NEPA states its goals in sweeping terms of human health and welfare,[6] these goals are ends that Congress has chosen to pursue by means of protecting the physical environment. To determine whether § 102 requires consideration of a particular effect, we must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue. For example, if the Department of Health and Human Services were to implement extremely stringent requirements for hospitals and nursing homes receiving federal funds, many perfectly adequate hospitals and homes might be forced out of existence. The remaining facilities might be so limited or so expensive that *774 many ill people would be unable to afford medical care and would suffer severe health damage. Nonetheless, NEPA would not require the Department to prepare an EIS evaluating that health damage because it would not be proximately related to a change in the physical environment. Some effects that are "caused by" a change in the physical environment in the sense of "but for" causation, will nonetheless not fall within § 102 because the causal chain is too attenuated. For example, residents of the Harrisburg area have relatives in other parts of the country. Renewed operation of TMI-1 may well cause psychological health problems for these people. They may suffer "anxiety, tension and fear, a sense of helplessness," and accompanying physical disorders, n. 2, supra, because of the risk that their relatives may be harmed in a nuclear accident. However, this harm is simply too remote from the physical environment to justify requiring the NRC to evaluate the psychological health damage to these people that may be caused by renewed operation of TMI-1. Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms "environmental effect" and "environmental impact" in § 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. See generally W. Prosser, Law of Torts, ch. 7 (4th ed. 1971).[7] The issue before us, then, is how to give content to this requirement. This is a question of first impression in this Court. *775 The federal action that affects the environment in this case is permitting renewed operation of TMI-1.[8] The direct effects on the environment of this action include release of low-level radiation, increased fog in the Harrisburg area (caused by operation of the plant's cooling towers), and the release of warm water into the Susquehanna River. The NRC has considered each of these effects in its EIS, and again in the EIA. See App. 51-58. Another effect of renewed operation is a risk of a nuclear accident. The NRC has also considered this effect.[9] See id., at 58-60. PANE argues that the psychological health damage it alleges "will flow directly from the risk of [a nuclear] accident." Brief for Respondents 23. But a risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE's members are necessary middle links.[10] We believe that the element of risk lengthens the causal chain beyond the reach of NEPA. Risk is a pervasive element of modern life; to say more would belabor the obvious. Many of the risks we face are generated by modern technology, which brings both the possibility of major accidents and opportunities for tremendous achievements. Medical experts apparently agree that risk *776 can generate stress in human beings, which in turn may rise to the level of serious health damage. For this reason, among many others, the question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue. Nonetheless, it is quite different from the question whether the same gains are worth a given level of alteration of our physical environment or depletion of our natural resources. The latter question rather than the former is the central concern of NEPA. Time and resources are simply too limited for us to believe that Congress intended to extend NEPA as far as the Court of Appeals has taken it. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551 (1978). The scope of the agency's inquiries must remain manageable if NEPA's goal of "insur[ing] a fully informed and well-considered decision," id., at 558, is to be accomplished. If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions. The available resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources. As we said in another context in United States v. Dow, 357 U.S. 17, 25 (1958), "[w]e cannot attribute to Congress the intention to . . . open the door to such obvious incongruities and undesirable possibilities." This case bears strong resemblance to other cases in which plaintiffs have sought to require agencies to evaluate the risk of crime from the operation of a jail or other public facility in their neighborhood. See, e. g., Como-Falcon Coalition, Inc. v. Department of Labor, 609 F.2d 342 (CA8 1979) (Job Corps Center); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F.2d 225 (CA7 1975) (low-income housing); First National Bank of Chicago v. Richardson, 484 F.2d 1369 (CA7 1973) (jail). The plaintiffs in these cases could have alleged *777 that the risk of crime (or their dislike of the occupants of the facility) would cause severe psychological health damage.[11] The operation of the facility is an event in the physical environment, but the psychological health damage to neighboring residents resulting from unrealized risks of crime is too far removed from that event to be covered by NEPA. The psychological health damage alleged by PANE is no closer to an event in the environment or to environmental concerns. The Court of Appeals thought that PANE's contentions are qualitatively different from the harm at issue in the cases just described. It thought PANE raised an issue of health damage, while those cases presented questions of fear or policy disagreement. We do not believe this line is so easily drawn. Anyone who fears or dislikes a project may find himself suffering from "anxiety, tension[,] fear, [and] a sense of helplessness." N. 2, supra. Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.[12] We do not mean to denigrate the fears of PANE's members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a *778 government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that "flow directly," Brief for Respondents 23, from the risks associated with the same decision. It would be extraordinarily difficult for agencies to differentiate between "genuine" claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. See Maryland National Capital Park & Planning Comm'n v. U. S. Postal Service, 159 U. S. App. D. C. 158, 166, 487 F.2d 1029, 1037 (1973). The Court of Appeals' opinion seems at one point to acknowledge the force of these arguments, 219 U. S. App. D. C., at 365, 678 F.2d, at 229, but seeks to distinguish the situation suggested by the related cases. First, the Court of Appeals thought the harm alleged by PANE is far more severe than the harm alleged in other cases. Ibid. It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character.[13] If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply. Second, the Court of Appeals noted that PANE's claim was made "in the wake of a unique and traumatic nuclear accident." Ibid. We do not understand how the accident at TMI-2 transforms PANE's contentions into "environmental effects." The Court of Appeals "cannot believe that the psychological aftermath of the March 1979 accident falls outside" *779 NEPA. Id., at 366, 678 F.2d, at 230. On the contrary, NEPA is not directed at the effects of past accidents and does not create a remedial scheme for past federal actions. It was enacted to require agencies to assess the future effects of future actions. There is nothing in the language or the history of NEPA to suggest that its scope should be expanded "in the wake of" any kind of accident. For these reasons, we hold that the NRC need not consider PANE's contentions.[14] NEPA does not require agencies to evaluate the effects of risk qua risk. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to dismiss the petition for review. It is so ordered.

The issue in these cases is whether petitioner Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act of 1969, as amended, 42 U.S. C. 4321 et seq. (1976 ed. and Supp. V) (NEPA), when it considered whether to permit petitioner Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant (TMI-1). The Court of Appeals for the District of Columbia Circuit held that the NRC improperly failed to consider whether the risk of an accident at TMI-1 might cause harm to the psychological health and community well-being of residents of the surrounding area. 219 U. S. App. D. C. 358, We reverse. Metropolitan owns two nuclear powerplants at Three Mile Island near Harrisburg, Pa. Both of these plants were licensed by the NRC after extensive proceedings, which included preparation of Environmental Impact Statements (EIS's). On March 28, TMI-1 was not operating; it had been shut down for refueling. TMI-2 was operating, and it suffered a serious accident that damaged the reactor.[1] Although, as it turned out, no dangerous radiation was released, *769 the accident caused widespread concern. The Governor of Pennsylvania recommended an evacuation of all pregnant women and small children, and many area residents did leave their homes for several days. After the accident, the NRC ordered Metropolitan to keep TMI-1 shut down until it had an opportunity to determine whether the plant could be operated safely. The NRC then published a notice of hearing specifying several safety-related issues for consideration. Metropolitan Edison Co., 10 N. R. C. 141 The notice stated that the Commission had not determined whether to consider psychological harm or other indirect effects of the accident or of renewed operation of TMI-1. It invited interested parties to submit briefs on this issue. Respondent People Against Nuclear Energy (PANE) intervened and responded to this invitation. PANE is an association of residents of the Harrisburg area who are opposed to further operation of either TMI reactor. PANE contended that restarting TMI-1 would cause both severe psychological health damage to persons living in the vicinity, and serious damage to the stability, cohesiveness, and well-being of the neighboring communities.[2] *770 The NRC decided not to take evidence concerning PANE's contentions. Metropolitan Edison Co., 12 N. R. C. 607 (1980); Metropolitan Edison Co., 14 N. R. C. 593 (1981).[3] PANE filed a petition for review in the Court of Appeals, contending that both NEPA and the Atomic Energy Act of 1954, as amended, 42 U.S. C. 2011 et seq. (1976 ed. and Supp. V), require the NRC to address its contentions.[4] Metropolitan intervened on the side of the NRC. *771 The Court of Appeals concluded that the Atomic Energy Act does not require the NRC to address PANE's contentions. 219 U. S. App. D. C., at -3. It did find, however, that NEPA requires the NRC to evaluate "the potential psychological health effects of operating" TMI-1 which have arisen since the original EIS was prepared. It also held that, if the NRC finds that significant new circumstances or information exist on this subject, it shall prepare a "supplemental [EIS] which considers not only the effects on psychological health but also effects on the well-being of the communities surrounding Three Mile Island." -372, -236. We granted certiorari.[5] All the parties agree that effects on human health can be cognizable under NEPA, and that human health may include psychological health. The Court of Appeals thought these propositions were enough to complete a syllogism that disposes of the case: NEPA requires agencies to consider effects on health. An effect on psychological health is an effect on health. Therefore, NEPA requires agencies to consider the effects on psychological health asserted by PANE. See 219 U. S. App. D. C., at PANE, using similar reasoning, contends that because the psychological health damage to its members would be caused by a change in the environment (renewed operation of TMI-1), NEPA requires the NRC to consider that damage. See Brief for *772 Respondents 23. Although these arguments are appealing at first glance, we believe they skip over an essential step in the analysis. They do not consider the closeness of the relationship between the change in the environment and the "effect" at issue. Section 102(C) of NEPA, 42 U.S. C. 4332(C), directs all federal agencies to "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — "(i) the environmental impact of the proposed action, [and] "(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented" To paraphrase the statutory language in light of the facts of this case, where an agency action significantly affects the quality of the human environment, the agency must evaluate the "environmental impact" and any unavoidable adverse environmental effects of its proposal. The theme of 102 is sounded by the adjective "environmental": NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word "environmental" out of its context and give it the broadest possible definition, the words "adverse environmental effects" might embrace virtually any consequence of a governmental action that someone thought "adverse." But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment. The statements of two principal sponsors of NEPA, explaining to their colleagues the Conference Report on the bill that was ultimately enacted, illustrate this point: *773 "What is involved [in NEPA] is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger the continued existence or the health of mankind: That we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth." 115 Cong. Rec. 40416 (1969) (remarks of Sen. Jackson) (emphasis supplied). "[W]e can now move forward to preserve and enhance our air, aquatic, and terrestrial environments to carry out the policies and goals set forth in the bill to provide each citizen of this great country a healthful environment." (emphasis supplied). Thus, although NEPA states its goals in sweeping terms of human health and welfare,[6] these goals are ends that Congress has chosen to pursue by means of protecting the physical environment. To determine whether 102 requires consideration of a particular effect, we must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue. For example, if the Department of Health and Human Services were to implement extremely stringent requirements for hospitals and nursing homes receiving federal funds, many perfectly adequate hospitals and homes might be forced out of existence. The remaining facilities might be so limited or so expensive that *774 many ill people would be unable to afford medical care and would suffer severe health damage. Nonetheless, NEPA would not require the Department to prepare an EIS evaluating that health damage because it would not be proximately related to a change in the physical environment. Some effects that are "caused by" a change in the physical environment in the sense of "but for" causation, will nonetheless not fall within 102 because the causal chain is too attenuated. For example, residents of the Harrisburg area have relatives in other parts of the country. Renewed operation of TMI-1 may well cause psychological health problems for these people. They may suffer "anxiety, tension and fear, a sense of helplessness," and accompanying physical disorders, n. 2, because of the risk that their relatives may be harmed in a nuclear accident. However, this harm is simply too remote from the physical environment to justify requiring the NRC to evaluate the psychological health damage to these people that may be caused by renewed operation of TMI-1. Our understanding of the congressional concerns that led to the enactment of NEPA suggests that the terms "environmental effect" and "environmental impact" in 102 be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue. This requirement is like the familiar doctrine of proximate cause from tort law. See generally W. Prosser, Law of Torts, ch. 7 (4th ed. 1971).[7] The issue before us, then, is how to give content to this requirement. This is a question of first impression in this Court. *775 The federal action that affects the environment in this case is permitting renewed operation of TMI-1.[8] The direct effects on the environment of this action include release of low-level radiation, increased fog in the Harrisburg area (caused by operation of the plant's cooling towers), and the release of warm water into the Susquehanna River. The NRC has considered each of these effects in its EIS, and again in the EIA. See App. 51-58. Another effect of renewed operation is a risk of a nuclear accident. The NRC has also considered this effect.[9] See PANE argues that the psychological health damage it alleges "will flow directly from the risk of [a nuclear] accident." Brief for Respondents 23. But a risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world. In a causal chain from renewed operation of TMI-1 to psychological health damage, the element of risk and its perception by PANE's members are necessary middle links.[10] We believe that the element of risk lengthens the causal chain beyond the reach of NEPA. Risk is a pervasive element of modern life; to say more would belabor the obvious. Many of the risks we face are generated by modern technology, which brings both the possibility of major accidents and opportunities for tremendous achievements. Medical experts apparently agree that risk *776 can generate stress in human beings, which in turn may rise to the level of serious health damage. For this reason, among many others, the question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue. Nonetheless, it is quite different from the question whether the same gains are worth a given level of alteration of our physical environment or depletion of our natural resources. The latter question rather than the former is the central concern of NEPA. Time and resources are simply too limited for us to believe that Congress intended to extend NEPA as far as the Court of Appeals has taken it. See Vermont Yankee Nuclear Power The scope of the agency's inquiries must remain manageable if NEPA's goal of "insur[ing] a fully informed and well-considered decision," is to be accomplished. If contentions of psychological health damage caused by risk were cognizable under NEPA, agencies would, at the very least, be obliged to expend considerable resources developing psychiatric expertise that is not otherwise relevant to their congressionally assigned functions. The available resources may be spread so thin that agencies are unable adequately to pursue protection of the physical environment and natural resources. As we said in another context in United "[w]e cannot attribute to Congress the intention to open the door to such obvious incongruities and undesirable possibilities." This case bears strong resemblance to other cases in which plaintiffs have sought to require agencies to evaluate the risk of crime from the operation of a jail or other public facility in their neighborhood. See, e. g., Como-Falcon Coalition, ; Nucleus of Chicago Homeowners 524 F.2d 2 ; First National Bank of The plaintiffs in these cases could have alleged *777 that the risk of crime (or their dislike of the occupants of the facility) would cause severe psychological health damage.[11] The operation of the facility is an event in the physical environment, but the psychological health damage to neighboring residents resulting from unrealized risks of crime is too far removed from that event to be covered by NEPA. The psychological health damage alleged by PANE is no closer to an event in the environment or to environmental concerns. The Court of Appeals thought that PANE's contentions are qualitatively different from the harm at issue in the cases just described. It thought PANE raised an issue of health damage, while those cases presented questions of fear or policy disagreement. We do not believe this line is so easily drawn. Anyone who fears or dislikes a project may find himself suffering from "anxiety, tension[,] fear, [and] a sense of helplessness." N. 2, Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.[12] We do not mean to denigrate the fears of PANE's members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a *778 government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that "flow directly," Brief for Respondents 23, from the risks associated with the same decision. It would be extraordinarily difficult for agencies to differentiate between "genuine" claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. See Maryland National Capital Park & Planning The Court of Appeals' opinion seems at one point to acknowledge the force of these arguments, 219 U. S. App. D. C., at but seeks to distinguish the situation suggested by the related cases. First, the Court of Appeals thought the harm alleged by PANE is far more severe than the harm alleged in other cases. It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character.[13] If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply. Second, the Court of Appeals noted that PANE's claim was made "in the wake of a unique and traumatic nuclear accident." We do not understand how the accident at TMI-2 transforms PANE's contentions into "environmental effects." The Court of Appeals "cannot believe that the psychological aftermath of the March accident falls outside" *779 NEPA. On the contrary, NEPA is not directed at the effects of past accidents and does not create a remedial scheme for past federal actions. It was enacted to require agencies to assess the future effects of future actions. There is nothing in the language or the history of NEPA to suggest that its scope should be expanded "in the wake of" any kind of accident. For these reasons, we hold that the NRC need not consider PANE's contentions.[14] NEPA does not require agencies to evaluate the effects of risk qua risk. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to dismiss the petition for review. It is so ordered.

Justice Powell

majority

Simopoulos v. Virginia

https://www.courtlistener.com/opinion/110970/simopoulos-v-virginia/

https://www.courtlistener.com/api/rest/v3/clusters/110970/

1982-114

We have considered today mandatory hospitalization requirements for second-trimester abortions in City of Akron v. Akron Center for Reproductive Health, Inc., ante, p. 416, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, p. 476. The principal issue here is whether Virginia's mandatory hospitalization requirement is constitutional. I Appellant is a practicing obstetrician-gynecologist certified by the American Board of Obstetrics and Gynecology. In November 1979, he practiced at his office in Woodbridge, Va., at four local hospitals, and at his clinic in Falls Church, Va. The Falls Church clinic has an operating room and facilities for resuscitation and emergency treatment of cardiac/ respiratory arrest. Replacement and stabilization fluids are on hand. Appellant customarily performs first-trimester abortions at his clinic. During the time relevant to this case, the clinic was not licensed, nor had appellant sought any license for it. P. M. was a 17-year-old high school student when she went to appellant's clinic on November 8, 1979. She was unmarried, and told appellant that she was approximately 22 weeks pregnant. She requested an abortion but did not want her parents to know. Examination by appellant confirmed that P. M. was five months pregnant, well into the second trimester. Appellant testified that he encouraged her to confer with her parents and discussed with her the alternative of continuing the pregnancy to term. She did return home, but never advised her parents of her decision. Two days later, P. M. returned to the clinic with her boyfriend. The abortion was performed by an injection of saline solution. P. M. told appellant that she planned to deliver the fetus in a motel, and understood him to agree to this course. Appellant gave P. M. a prescription for an analgesic and a "Post-Injection Information" sheet that stated that she had *509 undergone "a surgical procedure" and warned of a "wide range of normal reactions." App. 199. The sheet also advised that she call the physician if "heavy" bleeding began. Although P. M. did not recall being advised to go to a hospital when labor began, this was included on the instruction sheet. Id., at 200. P. M. went to a motel. Alone, she aborted her fetus in the motel bathroom 48 hours after the saline injection. She left the fetus, followup instructions, and pain medication in the wastebasket at the motel. Her boyfriend took her home. Police found the fetus later that day and began an investigation.[1] Appellant was indicted[2] for unlawfully performing an abortion during the second trimester of pregnancy outside of a licensed hospital and was convicted by the Circuit Court of Fairfax County sitting without a jury. The Supreme Court of Virginia unanimously affirmed the conviction. 221 Va. 1059, *510 277 S.E.2d 194 (1981). This appeal followed. We noted probable jurisdiction, 456 U.S. 988, and now affirm. II Appellant raises two issues that do not require extended treatment. He first contends that Va. Code § 18.2-71 (1982) was applied unconstitutionally to him, because lack of medical necessity for the abortion was not alleged in the indictment, addressed in the prosecution's case, or mentioned by the trier of fact. Appellant contends that this failure renders his conviction unconstitutional for two reasons: (i) the State failed to meet its burden of alleging necessity in the indictment, as required by United States v. Vuitch, 402 U.S. 62 (1971); and (ii) the prosecution failed to meet its burden of persuasion, as required by Patterson v. New York, 432 U.S. 197 (1977). The authoritative construction of § 18.2-71 by the Supreme Court of Virginia makes it clear that, at least with respect to the defense of medical necessity, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. See 221 Va., at 1069, 277 S. E. 2d, at 200. Appellant's reliance on Vuitch thus is misplaced: the District of Columbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See 402 U.S., at 70. Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally permissible. See Engle v. Isaac, 456 U.S. 107, 120-121, and n. 20 (1982); Mullaney v. Wilbur, 421 U.S. 684, 701-703, nn. 28, 30, 31 (1975). Appellant also contends that the prosecution failed to prove that his acts in fact caused the death of the fetus. In view of the undisputed facts proved at trial, summarized above, this contention is meritless. See 221 Va., at 1069-1070, 277 S. E. 2d, at 200-201. III We consistently have recognized and reaffirm today that a State has an "important and legitimate interest in the health *511 of the mother" that becomes " `compelling' . . . at approximately the end of the first trimester." Roe v. Wade, 410 U.S. 113, 163 (1973). See City of Akron, ante, at 428. This interest embraces the facilities and circumstances in which abortions are performed. See 410 U.S., at 150. Appellant argues, however, that Virginia prohibits all nonhospital second-trimester abortions and that such a requirement imposes an unconstitutional burden on the right of privacy. In City of Akron and Ashcroft, we upheld such a constitutional challenge to the acute-care hospital requirements at issue there. The State of Virginia argues here that its hospitalization requirement differs significantly from the hospitalization requirements considered in City of Akron and Ashcroft and that it reasonably promotes the State's interests. A In furtherance of its compelling interest in maternal health, Virginia has enacted a hospitalization requirement for abortions performed during the second trimester. As a general proposition, physicians' offices are not regulated under Virginia law.[3] Virginia law does not, however, permit a *512 physician licensed in the practice of medicine and surgery to perform an abortion during the second trimester of pregnancy unless "such procedure is performed in a hospital licensed by the State Department of Health." Va. Code § 18.2-73 (1982). The Virginia abortion statute itself does not define the term "hospital." This definition is found in Va. Code § 32.1-123.1 (1979),[4] that defines "hospital" to include "outpatient . . . hospitals."[5] Section 20.2.11 of the *513 Department of Health's Rules and Regulations for the Licensure of Outpatient Hospitals in Virginia (1977) (regulations)[6]*514 defines "outpatient hospitals" in pertinent part as "[i]nstitutions. . . which primarily provide facilities for the performance of surgical procedures on outpatients"[7] and provides that second-trimester abortions may be performed in these clinics.[8] Thus, under Virginia law, a second-trimester abortion *515 may be performed in an outpatient surgical hospital provided that facility has been licensed as a "hospital" by the State. The Virginia regulations applicable to the performance of second-trimester abortions in outpatient surgical hospitals are, with few exceptions, the same regulations applicable to all outpatient surgical hospitals in Virginia, and may be grouped for purposes of discussion into three main categories. The first grouping relates to organization, management, policies, procedures, and staffing. These regulations require personnel and facilities "necessary to meet patient and program needs." Va. Regs. (Outpatient Hospitals) § 40.3 (1977); see also § 40.1. They also require a policy and procedures manual, § 43.2, an administrative officer, § 40.6, a licensed physician who must supervise clinical services and perform surgical procedures, § 42.1, and a registered nurse to be on duty at all times while the facility is in use, § 42.2. The second category of requirements outlines construction standards for outpatient surgical clinics, but also provides that "deviations from the requirements prescribed herein may be approved if it is determined that the purposes of the minimum requirements have been fulfilled," § 50.2.1. There are also construction requirements that set forth standards for the public areas, clinical areas, laboratory and radiology services, *516 §§ 52.1, 52.2, 52.3, and general building, §§ 50.6.1, 50.7.1, 50.8.1, 52.4. The final group of regulations relates to patient care services. Most of these set the requirements for various services that the facility may offer, such as anesthesia, § 43.1, laboratory, §§ 43.6.1, 64.1.3, 64.1.4, and pathology, §§ 43.6.3, 64.2.4. Some of the requirements relate to sanitation, laundry, and the physical plant. §§ 43.2, 43.10, 43.11, 43.12.6. There are also guidelines on medical records, § 43.7, preoperative admission, § 43.8, and postoperative recovery, § 43.9. Finally, the regulations mandate some emergency services and evacuation planning. §§ 43.4.1, 43.5. B It is readily apparent that Virginia's second-trimester hospitalization requirement differs from those at issue in City of Akron, ante, at 431-432, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, at 481. In those cases, we recognized the medical fact that, "at least during the early weeks of the second trimester[,] D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital." City of Akron, ante, at 437. The requirements at issue, however, mandated that "all second-trimester abortions must be performed in general, acute-care facilities." Ashcroft, ante, at 481. In contrast, the Virginia statutes and regulations do not require that second-trimester abortions be performed exclusively in full-service hospitals. Under Virginia's hospitalization requirement, outpatient surgical hospitals may qualify for licensing as "hospitals" in which second-trimester abortions lawfully may be performed. Thus, our decisions in City of Akron and Ashcroft are not controlling here. In view of its interest in protecting the health of its citizens, the State necessarily has considerable discretion in determining standards for the licensing of medical facilities. Although its discretion does not permit it to adopt abortion regulations that depart from accepted medical practice, it does have a legitimate interest in regulating second-trimester *517 abortions and setting forth the standards for facilities in which such abortions are performed. On their face, the Virginia regulations appear to be generally compatible with accepted medical standards governing outpatient second-trimester abortions. The American Public Health Association (APHA) (Resolution No. 7907), although recognizing "that greater use of the Dilatation and Evacuation procedure makes it possible to perform the vast majority of second trimester abortions during or prior to the 16th week after the last menstrual period," still "[u]rges endorsement of the provision of second trimester abortion in free-standing qualified clinics that meet the state standards required for certification." APHA, The Right to Second Trimester Abortion 1, 2 (1979). The medical profession has not thought that a State's standards need be relaxed merely because the facility performs abortions: "Ambulatory care facilities providing abortion services should meet the same standards of care as those recommended for other surgical procedures performed in the physician's office and outpatient clinic or the free-standing and hospital-based ambulatory setting." American College of Obstetricians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic Services 54 (5th ed. 1982). See also id., at 52 ("Free-standing or hospital-based ambulatory surgical facilities should be licensed to conform to requirements of state or federal legislation"). Indeed, the medical profession's standards for outpatient surgical facilities are stringent: "Such facilities should maintain the same surgical, anesthetic, and personnel standards as recommended for hospitals." Ibid. We need not consider whether Virginia's regulations are constitutional in every particular. Despite personal knowledge of the regulations at least by the time of trial, appellant has not attacked them as being insufficiently related to the State's interest in protecting health.[9] His challenge *518 throughout this litigation appears to have been limited to an assertion that the State cannot require all second-trimester abortions to be performed in full-service general hospitals. In essence, appellant has argued that Virginia's hospitalization requirements are no different in substance from those reviewed in the City of Akron and Ashcroft cases.[10] At the same time, however, appellant took the position — both before the Virginia courts and this Court — that a state licensing requirement for outpatient abortion facilities would be constitutional.[11] We can only assume that by continuing to challenge the Virginia hospitalization requirement appellant either views the Virginia regulations in some unspecified way as unconstitutional or challenges a hospitalization requirement that does not exist in Virginia. Yet, not until his reply brief in this Court did he elect to criticize the regulations apart from his broadside attack on the entire Virginia hospitalization requirement. Given the plain language of the Virginia regulations and the history of their adoption, see n. 6, supra, we see no reason to doubt that an adequately equipped clinic could, upon *519 proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions. We conclude that Virginia's requirement that second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the State's compelling interest in "protecting the woman's own health and safety." Roe, 410 U. S., at 150.[12] As we emphasized in Roe, "[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." Ibid. Unlike the provisions at issue in City of Akron and Ashcroft, Virginia's statute and regulations do not require that the patient be hospitalized as an inpatient or that the abortion be performed in a full-service, acute-care hospital. Rather, the State's requirement that second-trimester abortions be performed in licensed clinics appears to comport with accepted medical practice, and leaves the method and timing of the abortion precisely where they belong — with the physician and the patient. IV The judgment of the Supreme Court of Virginia is Affirmed. JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

We have considered today mandatory hospitalization requirements for second-trimester abortions in City of Akron v. Akron Center for Reproductive Health, Inc., ante, p. 41, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, p. 47. The principal issue here is whether Virginia's mandatory hospitalization requirement is constitutional. I Appellant is a practicing obstetrician-gynecologist certified by the American Board of Obstetrics and Gynecology. In November 1979, he practiced at his office in Woodbridge, Va., at four local hospitals, and at his clinic in Falls Church, Va. The Falls Church clinic has an operating room and facilities for resuscitation and emergency treatment of cardiac/ respiratory arrest. Replacement and stabilization fluids are on hand. Appellant customarily performs first-trimester abortions at his clinic. During the time relevant to this case, the clinic was not licensed, nor had appellant sought any license for it. P. M. was a 17-year-old high school student when she went to appellant's clinic on November 8, 1979. She was unmarried, and told appellant that she was approximately 22 weeks pregnant. She requested an abortion but did not want her parents to know. Examination by appellant confirmed that P. M. was five months pregnant, well into the second trimester. Appellant testified that he encouraged her to confer with her parents and discussed with her the alternative of continuing the pregnancy to term. She did return home, but never advised her parents of her decision. Two days later, P. M. returned to the clinic with her boyfriend. The abortion was performed by an injection of saline solution. P. M. told appellant that she planned to deliver the fetus in a motel, and understood him to agree to this course. Appellant gave P. M. a prescription for an analgesic and a "Post-Injection Information" sheet that stated that she had *509 undergone "a surgical procedure" and warned of a "wide range of normal reactions." App. 199. The sheet also advised that she call the physician if "heavy" bleeding began. Although P. M. did not recall being advised to go to a hospital when labor began, this was included on the instruction sheet. P. M. went to a motel. Alone, she aborted her fetus in the motel bathroom 48 hours after the saline injection. She left the fetus, followup instructions, and pain medication in the wastebasket at the motel. Her boyfriend took her home. Police found the fetus later that day and began an investigation.[1] Appellant was indicted[2] for unlawfully performing an abortion during the second trimester of pregnancy outside of a licensed hospital and was convicted by the Circuit Court of Fairfax County sitting without a jury. The Supreme Court of Virginia unanimously affirmed the conviction. This appeal followed. We noted probable jurisdiction, and now affirm. II Appellant raises two issues that do not require extended treatment. He first contends that Va. Code 18.2-71 was applied unconstitutionally to him, because lack of medical necessity for the abortion was not alleged in the indictment, addressed in the prosecution's case, or mentioned by the trier of fact. Appellant contends that this failure renders his conviction unconstitutional for two reasons: (i) the State failed to meet its burden of alleging necessity in the indictment, as required by United ; and (ii) the prosecution failed to meet its burden of persuasion, as required by The authoritative construction of 18.2-71 by the Supreme Court of Virginia makes it clear that, at least with respect to the defense of medical necessity, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invoked medical necessity as a defense. See 277 S. E. 2d, Appellant's reliance on Vuitch thus is misplaced: the District of Columbia statute in Vuitch, as construed by this Court, required the prosecution to make this allegation. See Placing upon the defendant the burden of going forward with evidence on an affirmative defense is normally permissible. See ; Appellant also contends that the prosecution failed to prove that his acts in fact caused the death of the fetus. In view of the undisputed facts proved at trial, summarized above, this contention is meritless. See -1070, 277 S. E. 2d, -201. III We consistently have recognized and reaffirm today that a State has an "important and legitimate interest in the health *511 of the mother" that becomes " `compelling' at approximately the end of the first trimester." See City of Akron, ante, at 428. This interest embraces the facilities and circumstances in which abortions are performed. See Appellant argues, however, that Virginia prohibits all nonhospital second-trimester abortions and that such a requirement imposes an unconstitutional burden on the right of privacy. In City of Akron and Ashcroft, we upheld such a constitutional challenge to the acute-care hospital requirements at issue there. The State of Virginia argues here that its hospitalization requirement differs significantly from the hospitalization requirements considered in City of Akron and Ashcroft and that it reasonably promotes the State's interests. A In furtherance of its compelling interest in maternal health, Virginia has enacted a hospitalization requirement for abortions performed during the second trimester. As a general proposition, physicians' offices are not regulated under Virginia law.[3] Virginia law does not, however, permit a *512 physician licensed in the practice of medicine and surgery to perform an abortion during the second trimester of pregnancy unless "such procedure is performed in a hospital licensed by the State Department of Health." Va. Code 18.2-73 The Virginia abortion statute itself does not define the term "hospital." This definition is found in Va. Code 32.1-123.1 (1979),[4] that defines "hospital" to include "outpatient hospitals."[5] Section 20.2.11 of the *513 Department of Health's Rules and Regulations for the Licensure of Outpatient Hospitals in Virginia (regulations)[]*514 defines "outpatient hospitals" in pertinent part as "[i]nstitutions. which primarily provide facilities for the performance of surgical procedures on outpatients"[7] and provides that second-trimester abortions may be performed in these clinics.[8] Thus, under Virginia law, a second-trimester abortion *515 may be performed in an outpatient surgical hospital provided that facility has been licensed as a "hospital" by the State. The Virginia regulations applicable to the performance of second-trimester abortions in outpatient surgical hospitals are, with few exceptions, the same regulations applicable to all outpatient surgical hospitals in Virginia, and may be grouped for purposes of discussion into three main categories. The first grouping relates to organization, management, policies, procedures, and staffing. These regulations require personnel and facilities "necessary to meet patient and program needs." Va. Regs. (Outpatient Hospitals) 40.3 ; see also 40.1. They also require a policy and procedures manual, 43.2, an administrative officer, 40., a licensed physician who must supervise clinical services and perform surgical procedures, 42.1, and a registered nurse to be on duty at all times while the facility is in use, 42.2. The second category of requirements outlines construction standards for outpatient surgical clinics, but also provides that "deviations from the requirements prescribed herein may be approved if it is determined that the purposes of the minimum requirements have been fulfilled," 50.2.1. There are also construction requirements that set forth standards for the public areas, clinical areas, laboratory and radiology services, *51 52.1, 52.2, 52.3, and general building, 50.1, 50.7.1, 50.8.1, 52.4. The final group of regulations relates to patient care services. Most of these set the requirements for various services that the facility may offer, such as anesthesia, 43.1, laboratory, 43.1, 4.1.3, 4.1.4, and pathology, 43.3, 4.2.4. Some of the requirements relate to sanitation, laundry, and the physical plant. 43.2, 43.10, 43.11, 43.12. There are also guidelines on medical records, 43.7, preoperative admission, 43.8, and postoperative recovery, 43.9. Finally, the regulations mandate some emergency services and evacuation planning. 43.4.1, 43.5. B It is readily apparent that Virginia's second-trimester hospitalization requirement differs from those at issue in City of Akron, ante, at 431-432, and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, ante, at 481. In those cases, we recognized the medical fact that, "at least during the early weeks of the second trimester[,] D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital." City of Akron, ante, at 437. The requirements at issue, however, mandated that "all second-trimester abortions must be performed in general, acute-care facilities." Ashcroft, ante, at 481. In contrast, the Virginia statutes and regulations do not require that second-trimester abortions be performed exclusively in full-service hospitals. Under Virginia's hospitalization requirement, outpatient surgical hospitals may qualify for licensing as "hospitals" in which second-trimester abortions lawfully may be performed. Thus, our decisions in City of Akron and Ashcroft are not controlling here. In view of its interest in protecting the health of its citizens, the State necessarily has considerable discretion in determining standards for the licensing of medical facilities. Although its discretion does not permit it to adopt abortion regulations that depart from accepted medical practice, it does have a legitimate interest in regulating second-trimester *517 abortions and setting forth the standards for facilities in which such abortions are performed. On their face, the Virginia regulations appear to be generally compatible with accepted medical standards governing outpatient second-trimester abortions. The American Public Health Association (APHA) (Resolution No. 7907), although recognizing "that greater use of the Dilatation and Evacuation procedure makes it possible to perform the vast majority of second trimester abortions during or prior to the 1th week after the last menstrual period," still "[u]rges endorsement of the provision of second trimester abortion in free-standing qualified clinics that meet the state standards required for certification." APHA, The Right to Second Trimester Abortion 1, 2 (1979). The medical profession has not thought that a State's standards need be relaxed merely because the facility performs abortions: "Ambulatory care facilities providing abortion services should meet the same standards of care as those recommended for other surgical procedures performed in the physician's office and outpatient clinic or the free-standing and hospital-based ambulatory setting." American College of Obstetricians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic Services 54 See also Indeed, the medical profession's standards for outpatient surgical facilities are stringent: "Such facilities should maintain the same surgical, anesthetic, and personnel standards as recommended for hospitals." We need not consider whether Virginia's regulations are constitutional in every particular. Despite personal knowledge of the regulations at least by the time of trial, appellant has not attacked them as being insufficiently related to the State's interest in protecting health.[9] His challenge *518 throughout this litigation appears to have been limited to an assertion that the State cannot require all second-trimester abortions to be performed in full-service general hospitals. In essence, appellant has argued that Virginia's hospitalization requirements are no different in substance from those reviewed in the City of Akron and Ashcroft cases.[10] At the same time, however, appellant took the position — both before the Virginia courts and this Court — that a state licensing requirement for outpatient abortion facilities would be constitutional.[11] We can only assume that by continuing to challenge the Virginia hospitalization requirement appellant either views the Virginia regulations in some unspecified way as unconstitutional or challenges a hospitalization requirement that does not exist in Virginia. Yet, not until his reply brief in this Court did he elect to criticize the regulations apart from his broadside attack on the entire Virginia hospitalization requirement. Given the plain language of the Virginia regulations and the history of their adoption, see n. we see no reason to doubt that an adequately equipped clinic could, upon *519 proper application, obtain an outpatient hospital license permitting the performance of second-trimester abortions. We conclude that Virginia's requirement that second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the State's compelling interest in "protecting the woman's own health and safety." Roe,[12] As we emphasized in Roe, "[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." Unlike the provisions at issue in City of Akron and Ashcroft, Virginia's statute and regulations do not require that the patient be hospitalized as an inpatient or that the abortion be performed in a full-service, acute-care hospital. Rather, the State's requirement that second-trimester abortions be performed in licensed clinics appears to comport with accepted medical practice, and leaves the method and timing of the abortion precisely where they belong — with the physician and the patient. IV The judgment of the Supreme Court of Virginia is Affirmed. JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

Justice Powell

dissenting

United States v. Locke

https://www.courtlistener.com/opinion/111403/united-states-v-locke/

https://www.courtlistener.com/api/rest/v3/clusters/111403/

1984-071

I agree with much of JUSTICE STEVENS' dissent. I write separately only because under the special circumstances of this case I do not believe it necessary to decide what Congress actually intended. Even if the Court is correct in believing that Congress intended to require filings on or before the next-to-the-last day of the year, rather than, more reasonably, by the end of the calendar year itself, the statutory deadline is too uncertain to satisfy constitutional requirements. It simply fails to give property holders clear and definite notice of what they must do to protect their existing property interests. As the Court acknowledges, ante, at 86, the Government since the 19th century has encouraged its citizens to discover and develop certain minerals on the public lands. Under the general mining laws, 30 U.S. C. § 22 et seq., an individual who locates a mining claim has the right of exclusive possession *113 of the land for mining purposes and may extract and sell minerals he finds there without paying a royalty to the Federal Government. § 26. After making a valuable mineral discovery, the claimant may hold the claim so long as he performs $100 worth of assessment work each year. § 28. If he performs certain additional conditions, the claimant may patent the claim for a nominal sum and thereby obtain further rights over the land and minerals. See § 29. Until recently, there were no federal recordation requirements. Faced with the uncertainty stale mining claims had created as to property rights on public lands, Congress enacted § 314 of the Federal Land Policy and Management Act of 1976, 90 Stat. 2769, 43 U.S. C. § 1744.[1] This provision required existing claimholders to record their claims in order to retain them. More specifically, it required that "within the three-year period following October 21, 1976 and prior to December 31 of each year thereafter," § 1744(a), claimholders file with *114 the Bureau of Land Management (BLM) a copy of a notice of intention to retain their claims, an affidavit of assessment work, or a special form, §§ 1744(a)(1) and (2). Failure to make either the initial or a subsequent yearly filing was to "be deemed conclusively to constitute an abandonment of the mining claim . . . ." § 1744(c). Appellees (the Lockes) are owners of 10 unpatented mining claims on federal land in Nevada. Appellees' predecessors located these claims in 1952 and 1954, and appellees have, since they purchased the claims in 1960, earned their livelihood by producing gravel and other building materials from them. From 1960 to the present, they have produced approximately $4 million worth of materials. During the 1979-1980 assessment year alone, they produced gravel and other materials worth more than $1 million. In no sense were their claims stale. The Lockes fully complied with § 314's initial recordation requirement by properly filing a notice of location on October 19, 1979. In order to ascertain how to comply with the subsequent yearly recordation requirements, the Lockes sent their daughter, who worked in their business office, to the Ely, Nevada, office of the BLM. There she inquired into how and when they should file the assessment notice and was told, among other things, that the documents should be filed at the Reno office "on or before December 31, 1980." 573 F. Supp. 472, 474 (Nev. 1983). Following this advice, the Lockes hand-delivered their documents at the Reno office on that date. On April 4, 1981, they received notice from the BLM that their mining claims were "abandoned and void," App. to Juris. Statement 22a, because they had filed on, rather than prior to, December 31.[2] It is this 1-day difference *115 in good-faith interpretation of the statutory deadline that gives rise to the present controversy. JUSTICE STEVENS correctly points to a number of circumstances that cast doubt both on the care with which Congress drafted § 314 and on its meaning. Specifically, he notes that (i) the section does not clearly describe what must be filed, let alone when it must be filed; (ii) BLM's rewording of the deadline in its implementing regulations, 43 CFR § 3833.2-1(a)(1) (1984), indicates that the BLM itself considered the statutory deadline confusing; (iii) lest there be any doubt that the BLM recognized this possible confusion, even it had described the section in a pamphlet distributed to miners in 1978 as requiring filing "on or before December 31"; (iv) BLM, charged with enforcing the section, has interpreted it quite flexibly; and (v) irrationally requiring property holders to file by one day before the end of the year, rather than by the end of the year itself, creates "a trap for the unwary," post, at 123. As JUSTICE STEVENS also states, these facts, particularly the last, suggest not only that Congress drafted § 314 inartfully but also that Congress may actually have intended to require filing "on or before," not "prior to," December 31. This is certainly the more reasonable interpretation of congressional intent and is consistent with all the policies of the Act. I do not believe, however, that given the special circumstances of this case we need determine what Congress actually intended. As the Court today recognizes, the Takings Clause imposes some limitations on the Government's power to impose forfeitures. Ante, at 103-108. In Texaco, Inc. v. Short, 454 U.S. 516 (1982), we identified one of the most important of these limitations when we stated that "the State has the power to condition the permanent retention of [a] *116 property right on the performance of reasonable conditions. . . ." Id., at 526 (emphasis added); accord, Jackson v. Lamphire, 3 Pet. 280, 290 (1830) ("Cases may occur where the [forfeiture] provisio[n] . . . may be so unreasonable as to amount to a denial of a right, and call for the interposition of the court . . ."). Furthermore, conditions, like those here, imposed after a property interest is created must also meet due process standards. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976). These standards require, among other things, that there be no question as to what actions an individual must take to protect his interests. Texaco, Inc. v. Short, supra, at 532-533. Together the Takings and Due Process Clauses prevent the Government from depriving an individual of property rights arbitrarily. In the present case there is no claim that a yearly filing requirement is itself unreasonable. Rather, the claim arises from the fact that the language "prior to December 31" creates uncertainty as to when an otherwise reasonable filing period ends.[3] Given the natural tendency to interpret this phrase as "by the end of the calendar year," rather than "on or before the next-to-the-last day of the calendar year," I believe this uncertainty violated the standard of certainty *117 and definiteness that the Constitution requires. The statement in at least one of the Government's own publications that filing was required "on or before December 31," Department of the Interior, Staking a Mining Claim on Federal Lands 10 (1978), supports this conclusion. Terminating a property interest because a property holder reasonably believed that under the statute he had an additional day to satisfy any filing requirements is no less arbitrary than terminating it for failure to satisfy these same conditions in an unreasonable amount of time. Cf. Wilson v. Iseminger, 185 U.S. 55, 62 (1902); Terry v. Anderson, 95 U.S. 628, 632-633 (1877). Although the latter may rest on impossibility, the former rests on good-faith performance a day late of what easily could have been performed the day before. Neither serves a purpose other than forcing an arbitrary forfeiture of property rights to the State. I believe the Constitution requires that the law inform the property holder with more certainty and definiteness than did § 314 when he must fulfill any recording requirements imposed after a property interest is created. Given the statutory uncertainty here, I would find a forfeiture imposed for filing on December 31 to be invalid.[4] I accordingly dissent.

I agree with much of JUSTICE STEVENS' dissent. I write separately only because under the special circumstances of this case I do not believe it necessary to decide what Congress actually intended. Even if the Court is correct in believing that Congress intended to require filings on or before the next-to-the-last day of the year, rather than, more reasonably, by the end of the calendar year itself, the statutory deadline is too uncertain to satisfy constitutional requirements. It simply fails to give property holders clear and definite notice of what they must do to protect their existing property interests. As the Court acknowledges, ante, at 86, the Government since the 19th century has encouraged its citizens to discover and develop certain minerals on the public lands. Under the general mining laws, 30 U.S. C. 22 et seq., an individual who locates a mining claim has the right of exclusive possession *113 of the land for mining purposes and may extract and sell minerals he finds there without paying a royalty to the Federal Government. 26. After making a valuable mineral discovery, the claimant may hold the claim so long as he performs $100 worth of assessment work each year. 28. If he performs certain additional conditions, the claimant may patent the claim for a nominal sum and thereby obtain further rights over the land and minerals. See 29. Until recently, there were no federal recordation requirements. Faced with the uncertainty stale mining claims had created as to property rights on public lands, Congress enacted 314 of the Federal Land Policy and Management Act of 1976, 43 U.S. C. 1744.[1] This provision required existing claimholders to record their claims in order to retain them. More specifically, it required that "within the three-year period following October 21, 1976 and prior to December 31 of each year thereafter," 1744(a), claimholders file with *114 the Bureau of Land Management (BLM) a copy of a notice of intention to retain their claims, an affidavit of assessment work, or a special form, 1744(a)(1) and (2). Failure to make either the initial or a subsequent yearly filing was to "be deemed conclusively to constitute an abandonment of the mining claim" 1744(c). Appellees (the Lockes) are owners of 10 unpatented mining claims on federal land in Nevada. Appellees' predecessors located these claims in 1952 and 1954, and appellees have, since they purchased the claims in 1960, earned their livelihood by producing gravel and other building materials from them. From 1960 to the present, they have produced approximately $4 million worth of materials. During the 1979-1980 assessment year alone, they produced gravel and other materials worth more than $1 million. In no sense were their claims stale. The Lockes fully complied with 314's initial recordation requirement by properly filing a notice of location on October 19, 1979. In order to ascertain how to comply with the subsequent yearly recordation requirements, the Lockes sent their daughter, who worked in their business office, to the Ely, Nevada, office of the BLM. There she inquired into how and when they should file the assessment notice and was told, among other things, that the documents should be filed at the Reno office "on or before December 31, 1980." Following this advice, the Lockes hand-delivered their documents at the Reno office on that date. On April 4, 1981, they received notice from the BLM that their mining claims were "abandoned and void," App. to Juris. Statement 22a, because they had filed on, rather than prior to, December 31.[2] It is this 1-day difference *115 in good-faith interpretation of the statutory deadline that gives rise to the present controversy. JUSTICE STEVENS correctly points to a number of circumstances that cast doubt both on the care with which Congress drafted 314 and on its meaning. Specifically, he notes that (i) the section does not clearly describe what must be filed, let alone when it must be filed; (ii) BLM's rewording of the deadline in its implementing regulations, 43 CFR 3833.2-1(a)(1) (1984), indicates that the BLM itself considered the statutory deadline confusing; (iii) lest there be any doubt that the BLM recognized this possible confusion, even it had described the section in a pamphlet distributed to miners in 1978 as requiring filing "on or before December 31"; (iv) BLM, charged with enforcing the section, has interpreted it quite flexibly; and (v) irrationally requiring property holders to file by one day before the end of the year, rather than by the end of the year itself, creates "a trap for the unwary," post, at 123. As JUSTICE STEVENS also states, these facts, particularly the last, suggest not only that Congress drafted 314 inartfully but also that Congress may actually have intended to require filing "on or before," not "prior to," December 31. This is certainly the more reasonable interpretation of congressional intent and is consistent with all the policies of the Act. I do not believe, however, that given the special circumstances of this case we need determine what Congress actually intended. As the Court today recognizes, the Takings Clause imposes some limitations on the Government's power to impose forfeitures. Ante, at 103-108. In Texaco, we identified one of the most important of these limitations when we stated that "the State has the power to condition the permanent retention of [a] *116 property right on the performance of reasonable conditions." ; accord, Furthermore, conditions, like those here, imposed after a property interest is created must also meet due process standards. These standards require, among other things, that there be no question as to what actions an individual must take to protect his interests. Texaco, Together the Takings and Due Process Clauses prevent the Government from depriving an individual of property rights arbitrarily. In the present case there is no claim that a yearly filing requirement is itself unreasonable. Rather, the claim arises from the fact that the language "prior to December 31" creates uncertainty as to when an otherwise reasonable filing period ends.[3] Given the natural tendency to interpret this phrase as "by the end of the calendar year," rather than "on or before the next-to-the-last day of the calendar year," I believe this uncertainty violated the standard of certainty *117 and definiteness that the Constitution requires. The statement in at least one of the Government's own publications that filing was required "on or before December 31," Department of the Interior, Staking a Mining Claim on Federal Lands 10 (1978), supports this conclusion. Terminating a property interest because a property holder reasonably believed that under the statute he had an additional day to satisfy any filing requirements is no less arbitrary than terminating it for failure to satisfy these same conditions in an unreasonable amount of time. Cf. ; 95 U.S. 8, Although the latter may rest on impossibility, the former rests on good-faith performance a day late of what easily could have been performed the day before. Neither serves a purpose other than forcing an arbitrary forfeiture of property rights to the State. I believe the Constitution requires that the law inform the property holder with more certainty and definiteness than did 314 when he must fulfill any recording requirements imposed after a property interest is created. Given the statutory uncertainty here, I would find a forfeiture imposed for filing on December 31 to be invalid.[4] I accordingly dissent.

Justice White

dissenting

Lechmere, Inc. v. NLRB

https://www.courtlistener.com/opinion/112684/lechmere-inc-v-nlrb/

https://www.courtlistener.com/api/rest/v3/clusters/112684/

1991-031

"We will uphold a Board rule so long as it is rational and consistent with the Act, . . . even if we would have formulated a different rule had we sat on the Board." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990). The judicial role is narrow: The Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978). In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), the Court said that where nonemployee union representatives seek access to the employer's parking lot for the purpose of communicating with employees, the employer's property rights and the organizational rights of employees must be "[a]ccommodat[ed] . . . with as little destruction of one as is consistent with the maintenance of the other." Although it said that it was slow to overturn an administrative decision, the Court disagreed with the balance the Board had struck in granting access to the union because the Board had failed to recognize that access by nonemployees required a different accommodation than where employees are involved. Id., at 112-113. The Court went on to say that "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property *542 has been required to yield to the extent needed to permit communication of information on the right to organize." Ibid. Later the Court said: "The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property." Id., at 113. The Court went on to hold that no such conditions were shown in the records of the cases before it. In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing §§ 7 and 8(a)(1) of the National Labor Relations Act (NLRA) to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer's place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board's order in this case, which rested on its prior decision in Jean Country, 291 N. L. R. B. 11 (1988), because, in the Court's view, Jean Country revealed the that Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case. For several reasons, the Court errs in this case. First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer's parking lot and would satisfy the Court's admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course the union must show that its "reasonable efforts," *543 without access, will not permit proper communication with employees. But I cannot believe that the Court in Babcock intended to confine the reach of such general considerations to the single circumstance that the Court now seizes upon. If the Court in Babcock indicated that nonemployee access to a logging camp would be required, it did not say that only in such situations could nonemployee access be permitted. Nor did Babcock require the Board to ignore the substantial difference between the entirely private parking lot of a secluded manufacturing plant and a shopping center lot which is open to the public without substantial limitation. Nor indeed did Babcock indicate that the Board could not consider the fact that employees' residences are scattered throughout a major metropolitan area; Babcock itself relied on the fact that the employees in that case lived in a compact area which made them easily accessible. Moreover, the Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate § 7 rights. 351 U.S., at 113. If employees are entitled to learn from others the advantages of self-organization, ibid., it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot. Second, the Court's reading of Babcock is not the reading of that case reflected in later opinions of the Court. We have consistently declined to define the principle of Babcock as a general rule subject to narrow exceptions, and have instead repeatedly reaffirmed that the standard is a neutral and flexible rule of accommodation. In Central Hardware Co. v. NLRB, 407 U.S. 539, 544 (1972), we explicitly stated that the "guiding principle" for adjusting conflicts between § 7 rights and property rights enunciated in Babcock is that contained in its neutral "accommodation" language. Hudgens v. NLRB, 424 U.S. 507 (1976), gave this Court the *544 occasion to provide direct guidance to the Board on this issue. In that case, we emphasized Babcock's necessity-toaccommodate admonition, pointed out the differences between Babcock and Hudgens, and left the balance to be struck by the Board. "The locus of that accommodation . . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance." 424 U.S., at 522. Hudgens did not purport to modify Babcock and surely indicates that Babcock announced a more flexible rule than the narrow, ironclad rule that the Court now extracts from that case. If Babcock means what the Court says it means, there is no doubt tension between that case and Hudgens. If that is so, Hudgens, as the later pronouncement on the question, issued as a directive to the Board, should be controlling.[*] *545 The majority today asserts that "[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights." Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between § 7 and property rights. The majority's assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two rights. The majority can hardly fault the Board for a decision which "conflates . . . two stages of the inquiry," ante, at 538, when no two-stage inquiry has been set forth by this Court. Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. Id., at 842. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency's view is based on a permissible construction of the statute. Id., at 843. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of § 7, which speaks only of the rights of employees; i. e., the Court might have found that § 7 extends no access rights at all to union representatives. But Babcock itself recognized that *546 employees have a right to learn from others about selforganization, 351 U.S., at 113, and itself recognized that in some circumstances, §§ 7 and 8 required the employer to grant the union access to parking lots. So have later Courts, and so does the Court today. That being the case, the Babcock Court should have recognized that the Board's construction of the statute was a permissible one and deferred to its judgment. Instead, the Court simply announced that as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency's job, not only by detailing how union organizer access should be determined but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule. Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board's change of mind. See NLRB v. Curtin Matheson Scientific, Inc., 494 U. S., at 787; NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-266 (1975). As it is, the Court's decision fails to recognize that Babcock is at odds with the current law of deference to administrative agencies and compounds that error by adopting the substantive approach Babcock applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly *547 does not require the reading the Court gives it today, and in any event later cases have put a gloss on Babcock that the Court should recognize. Finally, the majority commits a concluding error in its application of the outdated standard of Babcock to review the Board's conclusion that there were no reasonable alternative means available to the union. Unless the Court today proposes to turn back time in the law of judicial deference to administrative agencies, the proper standard for judicial review of the Board's rulings is no longer for "`erroneous legal foundations,'" ante, at 539, but for rationality and consistency with the statute. Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (1991); NLRB v. Curtin Matheson Scientific, Inc., supra; Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); NLRB v. Financial Institution Employees, 475 U.S. 192, 202 (1986); Beth Israel Hospital, 437 U. S., at 501. "The judicial role is narrow: . . . the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." Ibid. The Board's conclusion as to reasonable alternatives in this case was supported by evidence in the record. Even if the majority cannot defer to that application, because of the depth of its objections to the rule applied by the Board, it should remand to the Board for a decision under the rule it arrives at today, rather than sitting in the place Congress has assigned to the Board. The more basic legal error of the majority today, like that of the Court of Appeals in Chevron, is to adopt a static judicial construction of the statute when Congress has not commanded that construction. Cf. 467 U.S., at 842. By leaving open the question of how § 7 and private property rights were to be accommodated under the NLRA, Congress delegated authority over that issue to the Board, and a court should not substitute its own judgment for a reasonable construction by the Board. Cf. id., at 844. *548 Under the law that governs today, it is Babcock that rests on questionable legal foundations. The Board's decision in Jean Country, by contrast, is both rational and consistent with the governing statute. The Court should therefore defer to the Board, rather than resurrecting and extending the reach of a decision which embodies principles which the law has long since passed by. It is evident, therefore, that, in my view, the Court should defer to the Board's decision in Jean Country and its application of Jean Country in this case. With all due respect, I dissent.

"We will uphold a Board rule so long as it is rational and consistent with the Act, even if we would have formulated a different rule had we sat on the Board." The judicial role is narrow: The Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced. Beth Israel In the Court said that where nonemployee union representatives seek access to the employer's parking lot for the purpose of communicating with employees, the employer's property rights and the organizational rights of employees must be "[a]ccommodat[ed] with as little destruction of one as is consistent with the maintenance of the other." Although it said that it was slow to overturn an administrative decision, the Court disagreed with the balance the Board had struck in granting access to the union because the Board had failed to recognize that access by nonemployees required a different accommodation than where employees are involved. at -113. The Court went on to say that "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property *5 has been required to yield to the extent needed to permit communication of information on the right to organize." Later the Court said: "The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property." The Court went on to hold that no such conditions were shown in the records of the cases before it. In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing 7 and 8(a)(1) of the National Labor Relations Act (NLRA) to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer's place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board's order in this case, which rested on its prior decision in Jean Country, 291 N. L. R. B. 11 (1988), because, in the Court's view, Jean Country revealed the that Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case. For several reasons, the Court errs in this case. First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer's parking lot and would satisfy the Court's admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course the union must show that its "reasonable efforts," *543 without access, will not permit proper communication with employees. But I cannot believe that the Court in Babcock intended to confine the reach of such general considerations to the single circumstance that the Court now seizes upon. If the Court in Babcock indicated that nonemployee access to a logging camp would be required, it did not say that only in such situations could nonemployee access be permitted. Nor did Babcock require the Board to ignore the substantial difference between the entirely private parking lot of a secluded manufacturing plant and a shopping center lot which is open to the public without substantial limitation. Nor indeed did Babcock indicate that the Board could not consider the fact that employees' residences are scattered throughout a major metropolitan area; Babcock itself relied on the fact that the employees in that case lived in a compact area which made them easily accessible. Moreover, the Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate 7 351 U.S., If employees are entitled to learn from others the advantages of self-organization, ib it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot. Second, the Court's reading of Babcock is not the reading of that case reflected in later opinions of the Court. We have consistently declined to define the principle of Babcock as a general rule subject to narrow exceptions, and have instead repeatedly reaffirmed that the standard is a neutral and flexible rule of accommodation. In Central Hardware we explicitly stated that the "guiding principle" for adjusting conflicts between 7 rights and property rights enunciated in Babcock is that contained in its neutral "accommodation" language. gave this Court the * occasion to provide direct guidance to the Board on this issue. In that case, we emphasized Babcock's necessity-toaccommodate admonition, pointed out the differences between Babcock and Hudgens, and left the balance to be struck by the Board. "The locus of that accommodation may fall at differing points along the spectrum depending on the nature and strength of the respective 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance." Hudgens did not purport to modify Babcock and surely indicates that Babcock announced a more flexible rule than the narrow, ironclad rule that the Court now extracts from that case. If Babcock means what the Court says it means, there is no doubt tension between that case and Hudgens. If that is so, Hudgens, as the later pronouncement on the question, issued as a directive to the Board, should be controlling.[*] *545 The majority today asserts that "[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' " Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between 7 and property The majority's assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two The majority can hardly fault the Board for a decision which "conflates two stages of the inquiry," ante, at 538, when no two-stage inquiry has been set forth by this Court. Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U. S. A. When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency's view is based on a permissible construction of the statute. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of 7, which speaks only of the rights of employees; i. e., the Court might have found that 7 extends no access rights at all to union representatives. But Babcock itself recognized that *546 employees have a right to learn from others about 351 U.S., and itself recognized that in some circumstances, 7 and 8 required the employer to grant the union access to parking lots. So have later Courts, and so does the Court today. That being the case, the Babcock Court should have recognized that the Board's construction of the statute was a permissible one and deferred to its judgment. Instead, the Court simply announced that as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency's job, not only by detailing how union organizer access should be determined but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule. Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board's change of mind. See 494 U. S., at ; NLRB v. J. Weingarten, As it is, the Court's decision fails to recognize that Babcock is at odds with the current law of deference to administrative agencies and compounds that error by adopting the substantive approach Babcock applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly *547 does not require the reading the Court gives it today, and in any event later cases have put a gloss on Babcock that the Court should recognize. Finally, the majority commits a concluding error in its application of the outdated standard of Babcock to review the Board's conclusion that there were no reasonable alternative means available to the union. Unless the Court today proposes to turn back time in the law of judicial deference to administrative agencies, the proper standard for judicial review of the Board's rulings is no longer for "`erroneous legal foundations,'" ante, at 539, but for rationality and consistency with the statute. Litton Financial Printing U.S. 190 ; Fall River Dyeing & Finishing ; ; Beth Israel 437 U. S., at "The judicial role is narrow: the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." The Board's conclusion as to reasonable alternatives in this case was supported by evidence in the record. Even if the majority cannot defer to that application, because of the depth of its objections to the rule applied by the Board, it should remand to the Board for a decision under the rule it arrives at today, rather than sitting in the place Congress has assigned to the Board. The more basic legal error of the majority today, like that of the Court of Appeals in Chevron, is to adopt a static judicial construction of the statute when Congress has not commanded that construction. 467 U.S., By leaving open the question of how 7 and private property rights were to be accommodated under the NLRA, Congress delegated authority over that issue to the Board, and a court should not substitute its own judgment for a reasonable construction by the Board. *548 Under the law that governs today, it is Babcock that rests on questionable legal foundations. The Board's decision in Jean Country, by contrast, is both rational and consistent with the governing statute. The Court should therefore defer to the Board, rather than resurrecting and extending the reach of a decision which embodies principles which the law has long since passed by. It is evident, therefore, that, in my view, the Court should defer to the Board's decision in Jean Country and its application of Jean Country in this case. With all due respect, I dissent.

Justice O'Connor

majority

Lyng v. Payne

https://www.courtlistener.com/opinion/111696/lyng-v-payne/

https://www.courtlistener.com/api/rest/v3/clusters/111696/

1985-112

Federal law vests in the Secretary of Agriculture the authority to make emergency loans to farmers who suffer economic losses as a result of a natural disaster. See Consolidated Farm and Rural Development Act (Act), §§ 321-330, 75 Stat. 311, as amended, 7 U.S. C. §§ 1961-1971. *928 Pursuant to an agency rule, the Secretary required loan applicants suffering from disasters occurring between December 26, 1972, and April 20, 1973, to file their applications by April 2, 1974. 39 Fed. Reg. 7569 (1974) (later codified at 7 CFR § 1832.82(a) (1975)). That rule embodied a statutory command to keep the loan program open at least until that date. Pub. L. 93-237, 87 Stat. 1025. The question presented is whether a federal court has the remedial authority to reopen this long-terminated loan program on the basis of its finding that the Secretary, in alleged violation of another rule, failed adequately to notify affected farmers of the program's availability and terms. I In early April 1973 torrential rains struck 13 counties in the northern part of Florida. Initial estimates, which were later sharply reduced, projected that resulting crop and property losses would be in excess of $3 million. In light of the scope of these anticipated losses, on May 26, 1973, President Nixon declared the region a major disaster area. 38 Fed. Reg. 14800 (1973). See Disaster Relief Act of 1970, Pub. L. 91-606, 84 Stat. 1744 (repealed or transferred 1974). As a result of this declaration, the Secretary of Agriculture came under a statutory obligation to "make loans" to qualifying individuals in the region. 7 U.S. C. § 1961(b) (1970 ed., Supp. III). At the time of the declaration, the federal disaster relief program, like much of the rest of the Federal Government, had become embroiled in a budgetary dispute between the Executive and Legislative Branches. In 1972, Congress had passed Pub. L. 92-385, 86 Stat. 554, which authorized emergency loans under terms far more generous than those available under later versions of the Act. Under the 1972 law as implemented by the Secretary, loans carried a 1% interest rate and were not conditioned upon the unavailability of alternative sources of credit. In addition, the Secretary was *929 directed to forgive outright up to $5,000 of the principal of the loan. On December 27, 1972, as part of a larger, administrationwide effort to control what were viewed as excessive congressional appropriations, the Secretary directed that regional Farmers Home Administration (FmHA) officials effectively cease processing loan applications. See generally Berends v. Butz, 357 F. Supp. 143 (Minn. 1973); Impoundment of Appropriated Funds by the President: Joint Hearings before the Ad Hoc Subcommittee on Impoundment of Funds of the Senate Committee on Government Operations of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 532 (1973). Aware that the "forgiveness features and low interest rates provided for by Public Law 92-385" had contributed to the unilateral executive decision to curtail the program, Congress attempted to resolve the crisis by repealing those provisions. S. Rep. No. 93-85, p. 1 (1973). Public Law 93-24, 87 Stat. 24, which became effective on April 20, 1973, set the interest rate on emergency loans at 5%, limited the availability of loans to those unable to obtain credit from other sources, and eliminated entirely the provision that had previously allowed for cancellation of a portion of the principal. A grandfather clause provided that the terms of the earlier act, Pub. L. 92-385, would remain applicable to disasters designated between January 1 and December 27, 1972. Left unclear, however, was the status of disasters occurring during the 4-month period between December 27, 1972, and April 20, 1973, the effective date of Pub. L. 93-24. Congress resolved this uncertainty by passing Pub. L. 93-237, the provision at the center of this case. Section 4 of the new Act provided that, "[n]otwithstanding the provisions of Public Law 93-24," loans "with respect to natural disasters which occurred" during this interim period would be governed by the more generous terms of Pub. L. 92-385. In addition, § 10(c) provided that the deadline for applying for a loan would be extended 90 days beyond the date of the enactment *930 of Pub. L. 93-237. This 90-day extension supplanted the established regulatory policy of the Secretary to accept loan applications for crop losses only if filed within nine months of the formal disaster declaration. (For physical losses the deadline was 60 days.) According to the Conference Report, the purpose of the extension was to make sure that the FmHA's "administratively set deadlines" took into account the confusion among farmers concerning the numerous changes in federal disaster relief law in the recent past. S. Conf. Rep. No. 93-363, p. 6 (1973). The bill was signed into law on January 2, 1974. Thus, the congressionally mandated 90-day period for loans under Pub. L. 93-237 expired on April 2, 1974. The Florida flood coincided with this period of confusion in the administration of federal disaster relief. Between May 26, 1973 (the date the disaster was declared), and January 2, 1974 (the date Pub. L. 93-237 became law), the loan program was administered pursuant to the terms of Pub. L. 93-24. Accordingly, during this initial loan period, farmers had nine months, or until February 26, 1974, to submit applications for emergency loans. At the time of the May 26, 1973, Presidential disaster declaration, and throughout the initial loan period, FmHA rules required the agency to follow certain procedures designed to notify potential borrowers of the availability of disaster relief. 7 CFR § 1832.3(a)(1) (1973). In addition to a general obligation to "make such public announcements as appear appropriate," the regulations required the FmHA County Supervisor to inform various local officials and "agricultural lenders" of "the assistance available under [the] program." Ibid.[1] It is undisputed that during the initial loan period no applications were filed. *931 On February 15, 1974, approximately six weeks after the enactment of Pub. L. 93-237, the FmHA issued instructions to its staff concerning the implementation of the new emergency loan program. App. to Pet. for Cert. 48a. Shortly thereafter, the Secretary published these instructions without material change in the Federal Register.[2] 39 Fed. Reg. 7569 (1974) (later codified at 7 CFR §§ 1832.81-1832.92 (1975)). The Federal Register publication set out in detail the terms and conditions of the new program, including the 1% interest rate, the $5,000 forgiveness provision, and the absence of any requirement that the applicant demonstrate the unavailability of other credit. 39 Fed. Reg. 7571 (1974). The regulation also specified that "the termination date for acceptance of applications . . . will be April 2, 1974." Id., at 7570. Also included in the staff instructions were directions that "State Directors and County Supervisors . . . inform the news media, including newspapers, radio, and television in the affected counties of the provisions of P. L. 93-237." App. to Pet. for Cert. 49a (later published as § 1832.82(a) of the "Special Emergency Loan Policies . . . Implementing Applicable Provisions of Public Law 93-237," 39 Fed. Reg. 7569 (1974)). Attached to the instructions was a suggested news *932 release.[3] App. to Pet. for Cert. 50a-51a. The release explained that farmers who had not yet received an emergency loan could apply for such a loan at the local FmHA office. Although not setting out the details of the new program, the model release did state that "loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974." Id., at 51a. Consistent with these instructions, the State FmHA director forwarded the sample news release to local agency offices. Those offices in turn sent copies to the local media, and, on at least two occasions, the releases were carried in newspapers in the north Florida disaster area. Record, Defendants' Exhibits 10-12. During this second loan period, that is, the period between the enactment of Pub. L. 93-237 and the expiration of the 90-day deadline on April 2, 1974, no more than four farmers from the Florida disaster area applied for emergency loans. On August 19, 1976, respondent Payne, a north Florida farmer, instituted the present action in the United States District Court for the Middle District of Florida. Although he had received actual notice of the special 1974 emergency loan program, he sought to represent a class of approximately 2,500 farmers who had been eligible for loans under that program but, because of lack of notice, had not been aware of their eligibility. Contending that the FmHA's failure to publicize the program more fully violated the agency's own regulations and deprived them of property without due process of law, respondents sought an injunction directing the FmHA to reopen the loan program under the terms prevailing during the period "up to and including April 2, 1974." Complaint 6. The District Court certified the class and granted the requested relief.[4] In a variety of different ways, the court *933 found, the FmHA had failed to give adequate notice of the availability of loans. Most of the notice deficiencies specifically found by the court occurred during the initial loan period. It found, for example, that a number of farmers had left a June 1973 meeting with the incorrect impression that they were ineligible for loans, that FmHA officials knew of this misimpression, and that they failed to correct it. The court also found that press releases describing the terms of both the initial and new loan programs were incomplete. Finally, the court determined that, in violation of the specific requirements of 7 CFR § 1832.3(a)(1) (1973), the FmHA had failed to notify various state and county officials of the availability of emergency loans. The District Court did not allude to the specific notice requirements promulgated by the agency in connection with the implementation of Pub. L. 93-237. See 39 Fed. Reg. 7569 (1974) (§ 1832.82(a)). Apparently assuming, however, that the earlier notice requirements contained in 7 CFR § 1832.3(a)(1) (1973) continued to apply during the new loan period, the court held that the agency's failure to adhere to these requirements required it to reopen the new loan program for a 60-day period extending from April 15, 1981, to June 15, 1981. In particular, the court premised the remedy on the FmHA's failure "to make such public announcements as appear appropriate." Ibid. The Court of Appeals for the Eleventh Circuit affirmed, but on different grounds. Payne v. Block, 714 F.2d 1510 (1983). It accepted the District Court's various findings concerning the FmHA's failure to comply with the notice requirements set out in 7 CFR § 1832.3(a)(1) (1973). Those findings, however, "pertain[ed] only peripherally" to its decision to affirm. 714 F.2d, at 1519. Regardless of any violations of 7 CFR § 1832.3(a)(1), the court concluded, the FmHA had failed to comply with its self-imposed obligation to notify the *934 public of the new loan program. The agency had announced in the Federal Register that it would "inform the news media. . . of the provisions of P. L. 93-237." 39 Fed. Reg. 7570 (1974) (§ 1832.82(a)). This it had not done, the court believed, because the news releases announcing the new loan program had failed to explain its generous terms. In view of the established proposition that agencies are duty bound to adhere to their own procedures, the court held, the most appropriate remedy for the violation was an injunction directing the agency to reopen the loan program. In reaching this conclusion, the Court of Appeals rejected the Government's argument that the April 2, 1974, application deadline was required by an Act of Congress and, therefore, beyond the authority of the District Court to expand. In the court's view, Pub. L. 93-237 had merely required the FmHA to extend its administratively set deadline for 90 days. Nothing in the Act, however, divested the agency of discretion to extend it further. The Secretary sought review in this Court, and we granted the petition for certiorari, vacated the judgment below, and remanded for reconsideration in light of our decision in Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984). Block v. Payne, 469 U.S. 807 (1984). In Community Health Services, the Court held that, even assuming that principles of equitable estoppel ever applied against the Government, "a private party surely cannot prevail [on that theory] without at least demonstrating that the traditional elements of estoppel are present." 467 U.S., at 61. The Court of Appeals, observing that petitioners' liability was premised not on a theory of equitable estoppel but on the agency's failure to follow its own regulations, adhered to its prior views and reinstated its decision. Block v. Payne, 751 F.2d 1191 (1985). Because the decision below exposes the Federal Government to substantial potential liability and because its reasoning implicates important questions about a federal court's *935 remedial powers, we again granted certiorari. Block v. Payne, 474 U.S. 815 (1985). We now reverse. II The Secretary's principal argument in this Court is that the remedy granted below shares all of the essential characteristics of an equitable estoppel against the Government and, accordingly, should be analyzed on those terms. We acknowledge that the practical effect of the injunction requiring the reopening of the loan program is to estop the FmHA from relying on the validly promulgated regulatory deadline as a basis for refusing to process further loan applications.[5] And we readily agree that, had respondents sought relief on an equitable estoppel theory, they could not prevail. As we observed only recently, even assuming that the Government is ever subject to estoppel, a "private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present." Heckler v. Community Health Services of Crawford County, Inc., 467 U. S., at 61. An essential element of any estoppel is detrimental reliance on the adverse party's misrepresentations, id., at 59 (citing 3 J. Pomeroy, Equity Jurisprudence § 805, p. 192 (S. Symons ed. 1941)); and neither the named plaintiffs, much less the 2,500 members of the class they represent, have sought to demonstrate such reliance. Moreover, the only misconduct specifically found by the District Court was the failure to give effective notice of information that, at least with respect to the second loan period, was concededly published in the Federal Register. Our cases leave no doubt that "failure to fully publicize the rights . . . accorded" by an Act of Congress does not "give rise to an estoppel against the Government." INS *936 v. Hibi, 414 U.S. 5, 8-9 (1973) (per curiam). See also Heckler v. Community Health Services of Crawford County, Inc., supra, at 63 ("[T]hose who deal with the Government are expected to know the law"); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947). As the Court of Appeals correctly observed, however, respondents' inability to satisfy the stringent requirements of common-law estoppel does not independently decide the case. Indeed, beginning with their initial complaint and throughout the course of the litigation, respondents have never sought to rely on estoppel as a basis for recovery. Their theory instead, and the theory on which the lower courts granted the injunction, is that the Administrative Procedure Act (APA), 5 U.S. C. § 551 et seq., authorizes this kind of relief to remedy the FmHA's alleged failure to comply with its duly promulgated notice regulations. It may well be that some of the same concerns that limit the application of equitable estoppel against the Government bear on the appropriateness of awarding other remedies that have a close substantive resemblance to an estoppel. We reject, however, petitioners' suggestion that any remedy that can be analogized to an equitable estoppel is necessarily invalid, regardless of the source of the cause of action, unless the plaintiff succeeds in proving all the elements of common-law estoppel. Cf. Honda v. Clark, 386 U.S. 484, 494-495 (1967). Indeed, any other rule has the potential for divesting the courts of the remedial authority specifically envisioned by Congress under the APA. If, for example, a farmer had filed a loan application prior to the expiration of the loan deadline and a court determined that the denial of the application after the deadline's expiration was "arbitrary, capricious [and] not in accordance with law," 5 U.S. C. § 706(2)(A), the appropriate remedy under the APA would be to direct that the application be granted or reconsidered. Although this would, in a sense, estop the Government from applying the deadline, we have never suggested that the applicant would be under an *937 obligation to satisfy the requirements of proving an equitable estoppel to obtain the relief specifically available under the APA. The question before us then is not whether the Secretary should be estopped from applying the deadline, but whether the relief afforded by the District Court was appropriate under the APA. Respondents contend that the notice regulations, having been promulgated pursuant to the Secretary's delegated rulemaking authority, had the force and effect of law and therefore were binding on the agency. To remedy this noncompliance, they suggest, the District Court had the authority under 5 U.S. C. § 706 to "compe[l] `action unlawfully withheld' [notice] and `set aside agency action' [application of the deadline] found to be `without observance of procedures required by law.' " Brief for Respondents 21 (quoting 5 U.S. C. § 706) (bracketed material in original). To prevail on this theory, respondents must clear at least three substantial hurdles. At the outset, not all agency publications are of binding force, Schweiker v. Hansen, 450 U.S. 785, 789 (1981); and it remains to be shown that the notice provisions, which began life as unpublished staff instructions, are the kind of agency law the violation of which is remediable at all. Second, an agency's power is no greater than that delegated to it by Congress. Thus, even assuming that Pub. L. 93-237 left the Secretary some discretion to extend the 90-day deadline beyond April 2, 1974, it would hardly be an abuse of that discretion to refuse to do so many years after the disaster had receded if such an extension would be inconsistent with the intent of Congress. Finally, the "agency action" respondents seek to have set aside is the "application of the deadline." Yet, with the exception of respondent Payne, who clearly has no standing,[6] there is no *938 allegation that any member of the class has ever applied for a loan. Although the APA includes "failure to act" in its definition of reviewable agency action, 5 U.S. C. § 551(13), it is far from clear that relief under the APA is appropriate when the allegedly aggrieved party has failed entirely to present its claim to the agency. Cf. Mathews v. Eldridge, 424 U.S. 319, 328 (1976). We need not, however, definitively resolve any of these issues. Nor need we confront the Secretary's broader contention that it is in all instances inappropriate for a court, reviewing for agency compliance with the APA, to set aside one validly promulgated regulation to remedy an alleged violation of another entirely independent one. An essential predicate of the relief granted below is that the FmHA in fact failed to comply with its own rules. As we now explain, the Court of Appeals' conclusion that the FmHA violated its self-imposed obligation to give notice of the loan program is insupportable. The Court of Appeals relied exclusively on the FmHA's purported violation of § 1832.82(a), the new notice provision, to uphold the injunction directing the Secretary to reopen the loan program. Although the agency did issue press releases, the court reasoned, its failure to describe the generous terms of the new program breached its regulatory obligation to " `inform the news media . . . of the provisions of P. L. No. 93-237.' " 714 F.2d, at 1520, quoting 39 Fed. Reg. 7570 (1974) (emphasis supplied by Court of Appeals). This reasoning is demonstrably incorrect. Public Law 93-237 itself said nothing at all about the availability of a reduced interest rate, the possibility of partial forgiveness of the loan principal, or the elimination of the requirement that credit be unavailable from other sources. It merely stated that "[n]otwithstanding the provisions of Public Law 93-24," loans with respect to disasters occurring prior to April 20, 1973, would *939 be administered under Pub. L. 92-385. Thus, the statement in the news release that "loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974," though not a model of clarity, was no less informative than were the "provisions" of the Act the release was endeavoring to describe. App. to Pet. for Cert. 51a; 7 CFR § 1832.82(a) (1975). Moreover, the Court of Appeals' holding runs roughshod over the established proposition that an agency's construction of its own regulations is entitled to substantial deference. United States v. Larionoff, 431 U.S. 864, 872 (1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). The publicity directive that was later codified at 7 CFR § 1832.82(a) (1975) was originally issued as a staff instruction designed to describe the procedures for implementing Pub. L. 93-237. App. to Pet. for Cert. 48a-49a. Accompanying the instruction was a sample press release identical in all pertinent respects to those sent to the media in the area of the Florida disaster. Id., at 50a-51a. Because the suggested release obviously reflected the agency's contemporaneous understanding of the scope of the publicity directive, it is logically untenable to suggest that the agency violated the directive by issuing press releases modeled explicitly on the sample. The Court of Appeals specifically disclaimed any reliance on 7 CFR § 1832.3(a)(1) (1973), the Secretary's previous publicity directive, to support its affirmance of the District Court's judgment. As they are entitled to do, however, respondents now defend that judgment on the alternative theory that the agency's violation of this earlier notice provision warranted the remedy of an injunction reopening the loan program. We find this theory no more supportable than that relied on by the Court of Appeals. As an initial matter, any violations of this regulation that occurred during the first loan period are plainly irrelevant. Starting with their complaint, and throughout the course of this lengthy litigation, respondents have sought to have the loan program reopened *940 under the more generous terms available under Pub. L. 93-237. And such was the relief granted by the District Court. App. to Pet. for Cert. 45a. As a simple matter of causation, any failure to inform respondents about the old loan program cannot support the remedy of requiring the FmHA to process loan applications under the "terms and benefits" available under the new one. Ibid. Nor do we believe that any noncompliance with the terms of 7 CFR § 1832.3 during the second loan period would justify the District Court's remedy.[7] Although the District Court did find that this provision had been violated during the initial loan period, it is far from clear from the face of its opinion that it found any such violations during the second period. Even assuming such findings, however, we agree with the conclusion of the Court of Appeals for the Ninth Circuit that the notice provisions of 7 CFR § 1832.3 were no longer applicable during the period after the enactment of Pub. L. 93-237, at least with respect to disasters declared prior to the date the new law came into force. See Emergency Disaster Loan Assn., Inc. v. Block, 653 F.2d 1267, 1270 (1981). By its terms, § 1832.3(a) requires only notice of the loan program in place at the time of the Presidential disaster declaration. See also § 1832.92 (1975) (describing § 1832.3 as *941 setting out procedures for reporting natural disaster designations). Accordingly, its plain language casts serious doubt on respondents' assumption that it was also intended to serve as a means of giving notice of midcourse changes in the terms of the loan program long after the disaster had been declared. Any ambiguity about the regulation's reach is dispelled by the history of Pub. L. 93-237 itself. As the Court of Appeals recognized, Congress was acutely aware of confusion in the administration of the Nation's disaster relief laws when it enacted Pub. L. 93-237. 714 F.2d, at 1516-1517. S. Conf. Rep. No. 93-363, p. 6 (1973). A central objective of the new Act was to correct this confusion by clarifying the credit terms available during this period and by requiring the Secretary to extend the application deadline to compensate for prior "uncertain[ties]" in the law. Ibid. Consistent with that objective, the Secretary announced in the Federal Register the new procedures the agency would follow to "implemen[t] applicable provisions of Public Law 93-237." 39 Fed. Reg. 7569 (1974). These procedures, which included the notice provision later codified at 7 CFR § 1832.82(a), were designed to "supplemen[t] and modif[y]" the procedures that had been in place under the old regime, including 7 CFR § 1832.3(a). While this language is ambiguous, the regulatory history strongly suggests that in adopting notice procedures specifically geared to the new law, the Secretary intended for those procedures to be the principal mechanism for spreading the word about Pub. L. 93-237 in areas in which a disaster had already been declared. Aware of Congress' belief that prior efforts to implement the old program had failed, this history suggests, the Secretary sought to take a different tack to assure effective implementation of the new one — notification of the media pursuant to § 1832.82. This interpretation is confirmed by § 1832.92, also adopted as part of the FmHA's efforts to implement Pub. L. 93-237. 39 Fed. Reg. 7575 (1974). There, the Secretary specifically provided that for any "new" disaster designations, notice *942 should be given pursuant to § 1832.3. There is no mention whatever of § 1832.3 in the balance of the regulations dealing with disasters that had already been declared at the time the regulation was published. A fair inference from this omission is that for disasters, such as the Florida flood, that had already been declared at the time of the enactment of Pub. L. 93-237, the Secretary intended that § 1832.82(a), rather than § 1832.3, provide the appropriate mechanism for notifying affected farmers about the new loan program. Accordingly, any failure to follow the old notice provisions during the second loan period was entirely consistent with the Secretary's intended approach and provides no permissible basis for ordering the new program reopened. III We conclude, therefore, that the lower courts erred in holding that the Secretary's conduct violated the only notice procedures relevant to the implementation of Pub. L. 93-237. Accordingly, even assuming, arguendo, that reopening the loan program would have been an appropriate remedy had the relevant regulations been violated, awarding that relief was clearly improper in light of the FmHA's compliance with its own procedures. Nor can the relief be supported on the theory, not addressed by either court below, that inadequate notice of the loan program deprived respondents of property without due process of law. We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment. Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 320, n. 8 (1985). Even on the assumption that they do, however, the notice published in the Federal Register, as well as that afforded by the Secretary in full compliance with his own procedures, was more than ample to satisfy any due process concerns. See 44 U.S. C. § 1507 (Publication in *943 Federal Register "is sufficient to give notice of the contents of the document to a person subject to or affected by it"). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered.

Federal law vests in the Secretary of Agriculture the authority to make emergency loans to farmers who suffer economic losses as a result of a natural disaster. See Consolidated Farm and Rural Development Act (Act), 321-330, as amended, 7 U.S. C. 1961-1971. *928 Pursuant to an agency rule, the Secretary required loan applicants suffering from disasters occurring between December 26, 1972, and April 20, 1973, to file their applications by April 2, 1974. (1974) (later codified at (a) (1975)). That rule embodied a statutory command to keep the loan program open at least until that date. Stat. 1025. The question presented is whether a federal court has the remedial authority to reopen this long-terminated loan program on the basis of its finding that the Secretary, in alleged violation of another rule, failed adequately to notify affected farmers of the program's availability and terms. I In early April 1973 torrential rains struck 13 counties in the northern part of Florida. Initial estimates, which were later sharply reduced, projected that resulting crop and property losses would be in excess of $3 million. In light of the scope of these anticipated losses, on May 26, 1973, President Nixon declared the region a major disaster area. See Disaster Relief Act of 1970, Stat. 1744 (repealed or transferred 1974). As a result of this declaration, the Secretary of Agriculture came under a statutory obligation to "make loans" to qualifying individuals in the region. 7 U.S. C. 1961(b) (1970 ed., Supp. III). At the time of the declaration, the federal disaster relief program, like much of the rest of the Federal Government, had become embroiled in a budgetary dispute between the Executive and Legislative Branches. In 1972, Congress had passed Stat. 554, which authorized emergency loans under terms far more generous than those available under later versions of the Act. Under the 1972 law as implemented by the Secretary, loans carried a 1% interest rate and were not conditioned upon the unavailability of alternative sources of credit. In addition, the Secretary was *929 directed to forgive outright up to $5,000 of the principal of the loan. On December 27, 1972, as part of a larger, administrationwide effort to control what were viewed as excessive congressional appropriations, the Secretary directed that regional Farmers Home Administration (FmHA) officials effectively cease processing loan applications. See generally ; Impoundment of Appropriated Funds by the President: Joint Hearings before the Ad Hoc Subcommittee on Impoundment of Funds of the Senate Committee on Government Operations of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 532 Aware that the "forgiveness features and low interest rates provided for by " had contributed to the unilateral executive decision to curtail the program, Congress attempted to resolve the crisis by repealing those provisions. S. Rep. No. 93-85, p. 1 Stat. 24, which became effective on April 20, 1973, set the interest rate on emergency loans at 5%, limited the availability of loans to those unable to obtain credit from other sources, and eliminated entirely the provision that had previously allowed for cancellation of a portion of the principal. A grandfather clause provided that the terms of the earlier act, would remain applicable to disasters designated between January 1 and December 27, 1972. Left unclear, however, was the status of disasters occurring during the 4-month period between December 27, 1972, and April 20, 1973, the effective date of Congress resolved this uncertainty by passing the provision at the center of this case. Section 4 of the new Act provided that, "[n]otwithstanding the provisions of " loans "with respect to natural disasters which occurred" during this interim period would be governed by the more generous terms of In addition, 10(c) provided that the deadline for applying for a loan would be extended 90 days beyond the date of the enactment *930 of This 90-day extension supplanted the established regulatory policy of the Secretary to accept loan applications for crop losses only if filed within nine months of the formal disaster declaration. (For physical losses the deadline was 60 days.) According to the Conference Report, the purpose of the extension was to make sure that the FmHA's "administratively set deadlines" took into account the confusion among farmers concerning the numerous changes in federal disaster relief law in the recent past. S. Conf. Rep. No. 93-363, p. 6 The bill was signed into law on January 2, 1974. Thus, the congressionally mandated 90-day period for loans under expired on April 2, 1974. The Florida flood coincided with this period of confusion in the administration of federal disaster relief. Between May 26, 1973 (the date the disaster was declared), and January 2, 1974 (the date became law), the loan program was administered pursuant to the terms of Accordingly, during this initial loan period, farmers had nine months, or until February 26, 1974, to submit applications for emergency loans. At the time of the May 26, 1973, Presidential disaster declaration, and throughout the initial loan period, FmHA rules required the agency to follow certain procedures designed to notify potential borrowers of the availability of disaster relief. 7 CFR 1832.3(a)(1) In addition to a general obligation to "make such public announcements as appear appropriate," the regulations required the FmHA County Supervisor to inform various local officials and "agricultural lenders" of "the assistance available under [the] program." [1] It is undisputed that during the initial loan period no applications were filed. *931 On February 15, 1974, approximately six weeks after the enactment of the FmHA issued instructions to its staff concerning the implementation of the new emergency loan program. App. to Pet. for Cert. 48a. Shortly thereafter, the Secretary published these instructions without material change in the Federal Register.[2] (1974) (later codified at 7 CFR 1832.81-1832.92 (1975)). The Federal Register publication set out in detail the terms and conditions of the new program, including the 1% interest rate, the $5,000 forgiveness provision, and the absence of any requirement that the applicant demonstrate the unavailability of other credit. (1974). The regulation also specified that "the termination date for acceptance of applications will be April 2, 1974." Also included in the staff instructions were directions that "State Directors and County Supervisors inform the news media, including newspapers, radio, and television in the affected counties of the provisions of P. L. 93-237." App. to Pet. for Cert. 49a (later published as 1832.82(a) of the "Special Emergency Loan Policies Implementing Applicable Provisions of " (1974)). Attached to the instructions was a suggested news *932 release.[3] App. to Pet. for Cert. 50a-51a. The release explained that farmers who had not yet received an emergency loan could apply for such a loan at the local FmHA office. Although not setting out the details of the new program, the model release did state that "loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974." at 51a. Consistent with these instructions, the State FmHA director forwarded the sample news release to local agency offices. Those offices in turn sent copies to the local media, and, on at least two occasions, the releases were carried in newspapers in the north Florida disaster area. Record, Defendants' Exhibits 10-12. During this second loan period, that is, the period between the enactment of and the expiration of the 90-day deadline on April 2, 1974, no more than four farmers from the Florida disaster area applied for emergency loans. On August 19, 1976, respondent Payne, a north Florida farmer, instituted the present action in the United States District Court for the Middle District of Florida. Although he had received actual notice of the special 1974 emergency loan program, he sought to represent a class of approximately 2,500 farmers who had been eligible for loans under that program but, because of lack of notice, had not been aware of their eligibility. Contending that the FmHA's failure to publicize the program more fully violated the agency's own regulations and deprived them of property without due process of law, respondents sought an injunction directing the FmHA to reopen the loan program under the terms prevailing during the period "up to and including April 2, 1974." Complaint 6. The District Court certified the class and granted the requested relief.[4] In a variety of different ways, the court *933 found, the FmHA had failed to give adequate notice of the availability of loans. Most of the notice deficiencies specifically found by the court occurred during the initial loan period. It found, for example, that a number of farmers had left a June 1973 meeting with the incorrect impression that they were ineligible for loans, that FmHA officials knew of this misimpression, and that they failed to correct it. The court also found that press releases describing the terms of both the initial and new loan programs were incomplete. Finally, the court determined that, in violation of the specific requirements of 7 CFR 1832.3(a)(1) the FmHA had failed to notify various state and county officials of the availability of emergency loans. The District Court did not allude to the specific notice requirements promulgated by the agency in connection with the implementation of See (1974) ( 1832.82(a)). Apparently assuming, however, that the earlier notice requirements contained in 7 CFR 1832.3(a)(1) continued to apply during the new loan period, the court held that the agency's failure to adhere to these requirements required it to reopen the new loan program for a 60-day period extending from April 15, to June 15, In particular, the court premised the remedy on the FmHA's failure "to make such public announcements as appear appropriate." The Court of Appeals for the Eleventh Circuit affirmed, but on different grounds. It accepted the District Court's various findings concerning the FmHA's failure to comply with the notice requirements set out in 7 CFR 1832.3(a)(1) Those findings, however, "pertain[ed] only peripherally" to its decision to Regardless of any violations of 7 CFR 1832.3(a)(1), the court concluded, the FmHA had failed to comply with its self-imposed obligation to notify the *934 public of the new loan program. The agency had announced in the Federal Register that it would "inform the news media. of the provisions of P. L. 93-237." (1974) ( 1832.82(a)). This it had not done, the court believed, because the news releases announcing the new loan program had failed to explain its generous terms. In view of the established proposition that agencies are duty bound to adhere to their own procedures, the court held, the most appropriate remedy for the violation was an injunction directing the agency to reopen the loan program. In reaching this conclusion, the Court of Appeals rejected the Government's argument that the April 2, 1974, application deadline was required by an Act of Congress and, therefore, beyond the authority of the District Court to expand. In the court's view, had merely required the FmHA to extend its administratively set deadline for 90 days. Nothing in the Act, however, divested the agency of discretion to extend it further. The Secretary sought review in this Court, and we granted the petition for certiorari, vacated the judgment below, and remanded for reconsideration in light of our decision in In Community Health Services, the Court held that, even assuming that principles of equitable estoppel ever applied against the Government, "a private party surely cannot prevail [on that theory] without at least demonstrating that the traditional elements of estoppel are present." The Court of Appeals, observing that petitioners' liability was premised not on a theory of equitable estoppel but on the agency's failure to follow its own regulations, adhered to its prior views and reinstated its decision. Because the decision below exposes the Federal Government to substantial potential liability and because its reasoning implicates important questions about a federal court's *935 remedial powers, we again granted certiorari. We now reverse. II The Secretary's principal argument in this Court is that the remedy granted below shares all of the essential characteristics of an equitable estoppel against the Government and, accordingly, should be analyzed on those terms. We acknowledge that the practical effect of the injunction requiring the reopening of the loan program is to estop the FmHA from relying on the validly promulgated regulatory deadline as a basis for refusing to process further loan applications.[5] And we readily agree that, had respondents sought relief on an equitable estoppel theory, they could not prevail. As we observed only recently, even assuming that the Government is ever subject to estoppel, a "private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present." An essential element of any estoppel is detrimental reliance on the adverse party's misrepresentations, at 59 (citing 3 J. Pomeroy, Equity Jurisprudence 805, p. 192 (S. Symons ed. 1941)); and neither the named plaintiffs, much less the 2,500 members of the class they represent, have sought to demonstrate such reliance. Moreover, the only misconduct specifically found by the District Court was the failure to give effective notice of information that, at least with respect to the second loan period, was concededly published in the Federal Register. Our cases leave no doubt that "failure to fully publicize the rights accorded" by an Act of Congress does not "give rise to an estoppel against the Government." INS See also ; Federal Crop Ins. As the Court of Appeals correctly observed, however, respondents' inability to satisfy the stringent requirements of common-law estoppel does not independently decide the case. Indeed, beginning with their initial complaint and throughout the course of the litigation, respondents have never sought to rely on estoppel as a basis for recovery. Their theory instead, and the theory on which the lower courts granted the injunction, is that the Administrative Procedure Act (APA), 5 U.S. C. 551 et seq., authorizes this kind of relief to remedy the FmHA's alleged failure to comply with its duly promulgated notice regulations. It may well be that some of the same concerns that limit the application of equitable estoppel against the Government bear on the appropriateness of awarding other remedies that have a close substantive resemblance to an estoppel. We reject, however, petitioners' suggestion that any remedy that can be analogized to an equitable estoppel is necessarily invalid, regardless of the source of the cause of action, unless the plaintiff succeeds in proving all the elements of common-law estoppel. Cf. Indeed, any other rule has the potential for divesting the courts of the remedial authority specifically envisioned by Congress under the APA. If, for example, a farmer had filed a loan application prior to the expiration of the loan deadline and a court determined that the denial of the application after the deadline's expiration was "arbitrary, capricious [and] not in accordance with law," 5 U.S. C. 706(2)(A), the appropriate remedy under the APA would be to direct that the application be granted or reconsidered. Although this would, in a sense, estop the Government from applying the deadline, we have never suggested that the applicant would be under an *937 obligation to satisfy the requirements of proving an equitable estoppel to obtain the relief specifically available under the APA. The question before us then is not whether the Secretary should be estopped from applying the deadline, but whether the relief afforded by the District Court was appropriate under the APA. Respondents contend that the notice regulations, having been promulgated pursuant to the Secretary's delegated rulemaking authority, had the force and effect of law and therefore were binding on the agency. To remedy this noncompliance, they suggest, the District Court had the authority under 5 U.S. C. 706 to "compe[l] `action unlawfully withheld' [notice] and `set aside agency action' [application of the deadline] found to be `without observance of procedures required by law.' " Brief for Respondents 21 (quoting 5 U.S. C. 706) (bracketed material in original). To prevail on this theory, respondents must clear at least three substantial hurdles. At the outset, not all agency publications are of binding force, ; and it remains to be shown that the notice provisions, which began life as unpublished staff instructions, are the kind of agency law the violation of which is remediable at all. Second, an agency's power is no greater than that delegated to it by Congress. Thus, even assuming that left the Secretary some discretion to extend the 90-day deadline beyond April 2, 1974, it would hardly be an abuse of that discretion to refuse to do so many years after the disaster had receded if such an extension would be inconsistent with the intent of Congress. Finally, the "agency action" respondents seek to have set aside is the "application of the deadline." Yet, with the exception of respondent Payne, who clearly has no standing,[6] there is no *938 allegation that any member of the class has ever applied for a loan. Although the APA includes "failure to act" in its definition of reviewable agency action, 5 U.S. C. 551(13), it is far from clear that relief under the APA is appropriate when the allegedly aggrieved party has failed entirely to present its claim to the agency. Cf. We need not, however, definitively resolve any of these issues. Nor need we confront the Secretary's broader contention that it is in all instances inappropriate for a court, reviewing for agency compliance with the APA, to set aside one validly promulgated regulation to remedy an alleged violation of another entirely independent one. An essential predicate of the relief granted below is that the FmHA in fact failed to comply with its own rules. As we now explain, the Court of Appeals' conclusion that the FmHA violated its self-imposed obligation to give notice of the loan program is insupportable. The Court of Appeals relied exclusively on the FmHA's purported violation of 1832.82(a), the new notice provision, to uphold the injunction directing the Secretary to reopen the loan program. Although the agency did issue press releases, the court reasoned, its failure to describe the generous terms of the new program breached its regulatory obligation to " `inform the news media of the provisions of P. L. No. 93-237.' " quoting (1974) This reasoning is demonstrably incorrect. itself said nothing at all about the availability of a reduced interest rate, the possibility of partial forgiveness of the loan principal, or the elimination of the requirement that credit be unavailable from other sources. It merely stated that "[n]otwithstanding the provisions of " loans with respect to disasters occurring prior to April 20, 1973, would *939 be administered under Thus, the statement in the news release that "loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974," though not a model of clarity, was no less informative than were the "provisions" of the Act the release was endeavoring to describe. App. to Pet. for Cert. 51a; (a) (1975). Moreover, the Court of Appeals' holding runs roughshod over the established proposition that an agency's construction of its own regulations is entitled to substantial deference. United ; The publicity directive that was later codified at (a) (1975) was originally issued as a staff instruction designed to describe the procedures for implementing App. to Pet. for Cert. 48a-49a. Accompanying the instruction was a sample press release identical in all pertinent respects to those sent to the media in the area of the Florida disaster. at 50a-51a. Because the suggested release obviously reflected the agency's contemporaneous understanding of the scope of the publicity directive, it is logically untenable to suggest that the agency violated the directive by issuing press releases modeled explicitly on the sample. The Court of Appeals specifically disclaimed any reliance on 7 CFR 1832.3(a)(1) the Secretary's previous publicity directive, to support its affirmance of the District Court's judgment. As they are entitled to do, however, respondents now defend that judgment on the alternative theory that the agency's violation of this earlier notice provision warranted the remedy of an injunction reopening the loan program. We find this theory no more supportable than that relied on by the Court of Appeals. As an initial matter, any violations of this regulation that occurred during the first loan period are plainly irrelevant. Starting with their complaint, and throughout the course of this lengthy litigation, respondents have sought to have the loan program reopened *940 under the more generous terms available under And such was the relief granted by the District Court. App. to Pet. for Cert. 45a. As a simple matter of causation, any failure to inform respondents about the old loan program cannot support the remedy of requiring the FmHA to process loan applications under the "terms and benefits" available under the new one. Nor do we believe that any noncompliance with the terms of 7 CFR 1832.3 during the second loan period would justify the District Court's remedy.[7] Although the District Court did find that this provision had been violated during the initial loan period, it is far from clear from the face of its opinion that it found any such violations during the second period. Even assuming such findings, however, we agree with the conclusion of the Court of Appeals for the Ninth Circuit that the notice provisions of 7 CFR 1832.3 were no longer applicable during the period after the enactment of at least with respect to disasters declared prior to the date the new law came into force. See Emergency Disaster Loan Assn., v. Block, By its terms, 1832.3(a) requires only notice of the loan program in place at the time of the Presidential disaster declaration. See also 1832.92 (1975) (describing 1832.3 as *941 setting out procedures for reporting natural disaster designations). Accordingly, its plain language casts serious doubt on respondents' assumption that it was also intended to serve as a means of giving notice of midcourse changes in the terms of the loan program long after the disaster had been declared. Any ambiguity about the regulation's reach is dispelled by the history of itself. As the Court of Appeals recognized, Congress was acutely aware of confusion in the administration of the Nation's disaster relief laws when it enacted 714 F.2d, at 1516-1517. S. Conf. Rep. No. 93-363, p. 6 A central objective of the new Act was to correct this confusion by clarifying the credit terms available during this period and by requiring the Secretary to extend the application deadline to compensate for prior "uncertain[ties]" in the law. Consistent with that objective, the Secretary announced in the Federal Register the new procedures the agency would follow to "implemen[t] applicable provisions of" (1974). These procedures, which included the notice provision later codified at (a), were designed to "supplemen[t] and modif[y]" the procedures that had been in place under the old regime, including 7 CFR 1832.3(a). While this language is ambiguous, the regulatory history strongly suggests that in adopting notice procedures specifically geared to the new law, the Secretary intended for those procedures to be the principal mechanism for spreading the word about in areas in which a disaster had already been declared. Aware of Congress' belief that prior efforts to implement the old program had failed, this history suggests, the Secretary sought to take a different tack to assure effective implementation of the new one — notification of the media pursuant to 1832.82. This interpretation is confirmed by 1832.92, also adopted as part of the FmHA's efforts to implement 39 Fed. Reg. 7575 (1974). There, the Secretary specifically provided that for any "new" disaster designations, notice *942 should be given pursuant to 1832.3. There is no mention whatever of 1832.3 in the balance of the regulations dealing with disasters that had already been declared at the time the regulation was published. A fair inference from this omission is that for disasters, such as the Florida flood, that had already been declared at the time of the enactment of the Secretary intended that 1832.82(a), rather than 1832.3, provide the appropriate mechanism for notifying affected farmers about the new loan program. Accordingly, any failure to follow the old notice provisions during the second loan period was entirely consistent with the Secretary's intended approach and provides no permissible basis for ordering the new program reopened. III We conclude, therefore, that the lower courts erred in holding that the Secretary's conduct violated the only notice procedures relevant to the implementation of Accordingly, even assuming, arguendo, that reopening the loan program would have been an appropriate remedy had the relevant regulations been violated, awarding that relief was clearly improper in light of the FmHA's compliance with its own procedures. Nor can the relief be supported on the theory, not addressed by either court below, that inadequate notice of the loan program deprived respondents of property without due process of law. We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment. Even on the assumption that they do, however, the notice published in the Federal Register, as well as that afforded by the Secretary in full compliance with his own procedures, was more than ample to satisfy any due process concerns. See 44 U.S. C. 1507 (Publication in *943 Federal Register "is sufficient to give notice of the contents of the document to a person subject to or affected by it"). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered.

Justice Sotomayor

concurring

Hughes v. United States

https://www.courtlistener.com/opinion/4503547/hughes-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4503547/

In Freeman v. United States, 564 U.S. 522 (2011), this Court confronted the same question it definitively resolves today: whether criminal defendants who enter into plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C) are eligible for sentencing reduc- tions under 18 U.S. C. §3582(c)(2). Freeman ended in a 4–1–4 decision that left lower courts confused as to whether the plurality or the concurring opinion controlled. The plurality of four Justices in Freeman concluded that defendants who plead guilty pursuant to a so-called “Type-C agreement” may be eligible for a sentence re- duction under §3582(c)(2) because Type-C sentences are “based on the Guidelines” “to whatever extent the sen- tencing range in question was a relevant part of the an- alytic framework the judge used to determine the sen- tence or to approve the agreement.” 564 U.S., at 530. Four Justices dissented. Id., at 544–551 (opinion of ROBERTS, C. J.). They would have held that a defendant who pleads guilty pursuant to a Type-C agreement is categorically ineligible for a sentence reduction under §3582(c)(2) because such a sentence is always “based on” the plea agreement, and not on the Guidelines. Id., at 544–548. 2 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring Parting ways with all eight of my colleagues, I con- curred only in the judgment. Id., at 534–544. I held the view that sentences imposed under Type-C agreements are typically “based on” the agreements themselves, not on the Guidelines. Id., at 535–536. “In the (C) agree- ment context,” I explained, “it is the binding plea agreement that is the foundation for the term of impris- onment to which the defendant is sentenced.” Id., at 535. But, in my view, that general rule was not abso- lute. Rejecting the categorical rule adopted by the dis- sent, I instead concluded that some Type-C sentences were “based on” the Guidelines and thus eligible for sen- tencing reductions under §3582(c)(2). Id., at 538–539. Specifically, I clarified that §3582(c)(2) relief was avail- able in cases where the Type-C agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” or in cases where the “plea agreement . . . provide[s] for a specific term of im- prisonment . . . but also make[s] clear that the basis for the specified term is a Guidelines sentencing range.” Id., at 538–539. Because Freeman’s agreement presented one such case, I agreed with the plurality that he was eligible for a sentence reduction under §3582(c)(2). See id., at 542–544. I continue to believe that my Freeman concurrence sets forth the most convincing interpretation of §3582(c)(2)’s statutory text. But I also acknowledge that my concurrence precipitated a 4–1–4 decision that left significant confusion in its wake. Because Freeman’s fractured disposition provided insufficient guidance, courts of appeals have struggled over whether they should follow the Freeman plurality or my separate con- currence. See ante, at 2–3. As a result, “in the after- math of Freeman, a defendant’s eligibility for a reduced sentence under §3582(c)(2) turns on the Circuit in which the case arises.” Ante, at 8. And, “even within Circuits Cite as: 584 U. S. ____ (2018) 3 SOTOMAYOR, J., concurring that follow the Freeman concurrence, unwarranted dis- parities have resulted depending on the fortuity of whether a defendant’s Type-C agreement includes a specific-enough reference to a Guidelines range.” Ibid. The integrity and legitimacy of our criminal justice system depends upon consistency, predictability, and evenhandedness. Regrettably, the divided decisions in Freeman, and my concurrence in particular, have done little to foster those foundational principles. Quite the opposite, my individual views, which “[n]o other Justice . . . shares,” have contributed to ongoing discord among the lower courts, sown confusion among litigants, and left “the governing rule uncertain.” Arizona v. Gant, 556 U.S. 332, 354 (2009) (Scalia, J., concurring); see Brief for National Association of Criminal Defense Law- yers et al. as Amici Curiae 3–27 (arguing that the Free- man concurrence leads to unpredictable and incon- sistent results). I therefore join the majority in full because doing so helps to ensure clarity and stability in the law and pro- motes “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Molina- Martinez v. United States, 578 U. S. ___, ___ (2016) (slip op., at 2) (internal quotation marks and alteration omit- ted; emphasis deleted). Today’s majority opinion charts a clear path forward: It mitigates the inconsistencies and disparities occasioned (at least in part) by my con- currence. It ensures that similarly situated defendants are subject to a uniform legal rule. It studiously ad- heres to “this Court’s precedents since Freeman,” which firmly establish “that the Guidelines remain the founda- tion of federal sentencing decisions.” Ante, at 8; see ante, at 12 (discussing Molina-Martinez, 578 U. S. ___; Peugh v. United States, 569 U.S. 530 (2013)). And it aligns more closely than the dissent does with the view I 4 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring articulated in Freeman.1 For all these reasons, I now lend my vote to the majority and accede in its holding “that a sentence imposed pursuant to a Type-C agree- ment is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the dis- trict court relied on in imposing the sentence or accept- ing the agreement.” Ante, at 9.2 —————— 1 Unlike the majority, the dissent’s position is incompatible with my view in Freeman (and in this case) that criminal defendants who plead guilty under Type-C agreements are not categorically ineligible for relief under §3582(c)(2). See 564 U.S., at 538–540 (SOTOMAYOR, J., concurring in judgment). Accordingly, I continue to “reject the categori- cal rule advanced by the Government and endorsed by the dissent.” Id., at 539. 2 I am sensitive to the Government’s contention that allowing crimi- nal defendants to obtain reductions of Type-C sentences under §3582(c)(2) might deprive the Government of the benefit of its bargain. Brief for United States 52. But, as the majority persuasively explains, that argument “has nothing to do with whether a defendant’s sentence was based on the Sentencing Guidelines under §3582(c)(2)” and there- fore has no bearing on whether a defendant who has entered into a Type-C agreement is eligible for a sentence reduction. Ante, at 12; see Freeman, 564 U.S., at 532 (plurality opinion) (“What is at stake . . . is a defendant’s eligibility for relief, not the extent of that relief ”). All that said, there may be circumstances in which the Government makes substantial concessions in entering into a Type-C agreement with a defendant—e.g., by declining to pursue easily proved and weighty sentencing enhancements—such that there is a compelling case that the agreed-upon sentence in the Type-C agreement would not have been affected if the subsequently lowered Guidelines range had been in place at the relevant time. If such circumstances exist, I expect that district courts will take that into account when deciding whether, and to what extent, a Type-C sentence should be reduced under §3582(c)(2). See ante, at 12–13. Cite as: 584 U. S. ____ (2018) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–155 _________________ ERIK LINDSEY HUGHES, PETITIONER v.

In this Court confronted the same question it definitively resolves today: whether criminal defendants who enter into plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C) are eligible for sentencing reduc- tions under 18 U.S. C. ended in a 4–1–4 decision that left lower courts confused as to whether the plurality or the concurring opinion controlled. The plurality of four Justices in concluded that defendants who plead guilty pursuant to a so-called “Type-C agreement” may be eligible for a sentence re- duction under because Type-C sentences are “based on the Guidelines” “to whatever extent the sen- tencing range in question was a relevant part of the an- alytic framework the judge used to determine the sen- tence or to approve the agreement.” Four Justices dissented. at 544–551 (opinion of ROBERTS, C. J.). They would have held that a defendant who pleads guilty pursuant to a Type-C agreement is categorically ineligible for a sentence reduction under because such a sentence is always “based on” the plea agreement, and not on the Guidelines. at 544–548. 2 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring Parting ways with all eight of my colleagues, I con- curred only in the judgment. at 534–544. I held the view that sentences imposed under Type-C agreements are typically “based on” the agreements themselves, not on the Guidelines. at 535–536. “In the (C) agree- ment context,” I explained, “it is the binding plea agreement that is the foundation for the term of impris- onment to which the defendant is sentenced.” at 535. But, in my view, that general rule was not abso- lute. Rejecting the categorical rule adopted by the dis- sent, I instead concluded that some Type-C sentences were “based on” the Guidelines and thus eligible for sen- tencing reductions under at 538–539. Specifically, I clarified that relief was avail- able in cases where the Type-C agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” or in cases where the “plea agreement provide[s] for a specific term of im- prisonment but also make[s] clear that the basis for the specified term is a Guidelines sentencing range.” at 538–539. Because ’s agreement presented one such case, I agreed with the plurality that he was eligible for a sentence reduction under See at 542–544. I continue to believe that my concurrence sets forth the most convincing interpretation of ’s statutory text. But I also acknowledge that my concurrence precipitated a 4–1–4 decision that left significant confusion in its wake. Because ’s fractured disposition provided insufficient guidance, courts of appeals have struggled over whether they should follow the plurality or my separate con- currence. See ante, at 2–3. As a result, “in the after- math of a defendant’s eligibility for a reduced sentence under turns on the Circuit in which the case arises.” Ante, at 8. And, “even within Circuits Cite as: 584 U. S. (2018) 3 SOTOMAYOR, J., concurring that follow the concurrence, unwarranted dis- parities have resulted depending on the fortuity of whether a defendant’s Type-C agreement includes a specific-enough reference to a Guidelines range.” The integrity and legitimacy of our criminal justice system depends upon consistency, predictability, and evenhandedness. Regrettably, the divided decisions in and my concurrence in particular, have done little to foster those foundational principles. Quite the opposite, my individual views, which “[n]o other Justice shares,” have contributed to ongoing discord among the lower courts, sown confusion among litigants, and left “the governing rule uncertain.” ; see Brief for National Association of Criminal Defense Law- yers et al. as Amici Curiae 3–27 (arguing that the Free- man concurrence leads to unpredictable and incon- sistent results). I therefore join the majority in full because doing so helps to ensure clarity and stability in the law and pro- motes “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Molina- Martinez v. United States, 578 U. S. (2016) (slip op., at 2) (internal quotation marks and alteration omit- ted; emphasis deleted). Today’s majority opinion charts a clear path forward: It mitigates the inconsistencies and disparities occasioned (at least in part) by my con- currence. It ensures that similarly situated defendants are subject to a uniform legal rule. It studiously ad- heres to “this Court’s precedents since” which firmly establish “that the Guidelines remain the founda- tion of federal sentencing decisions.” Ante, at 8; see ante, at 12 ). And it aligns more closely than the dissent does with the view I 4 HUGHES v. UNITED STATES SOTOMAYOR, J., concurring articulated in1 For all these reasons, I now lend my vote to the majority and accede in its holding “that a sentence imposed pursuant to a Type-C agree- ment is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the dis- trict court relied on in imposing the sentence or accept- ing the agreement.” Ante, at 9.2 —————— 1 Unlike the majority, the dissent’s position is incompatible with my view in (and in this case) that criminal defendants who plead guilty under Type-C agreements are not categorically ineligible for relief under See –540 (SOTOMAYOR, J., concurring in judgment). Accordingly, I continue to “reject the categori- cal rule advanced by the Government and endorsed by the dissent.” 2 I am sensitive to the Government’s contention that allowing crimi- nal defendants to obtain reductions of Type-C sentences under might deprive the Government of the benefit of its bargain. Brief for United States 52. But, as the majority persuasively explains, that argument “has nothing to do with whether a defendant’s sentence was based on the Sentencing Guidelines under ” and there- fore has no bearing on whether a defendant who has entered into a Type-C agreement is eligible for a sentence reduction. Ante, at 12; see (“What is at stake is a defendant’s eligibility for relief, not the extent of that relief ”). All that said, there may be circumstances in which the Government makes substantial concessions in entering into a Type-C agreement with a defendant—e.g., by declining to pursue easily proved and weighty sentencing enhancements—such that there is a compelling case that the agreed-upon sentence in the Type-C agreement would not have been affected if the subsequently lowered Guidelines range had been in place at the relevant time. If such circumstances exist, I expect that district courts will take that into account when deciding whether, and to what extent, a Type-C sentence should be reduced under See ante, at 12–13. Cite as: 584 U. S. (2018) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–155 ERIK LINDSEY HUGHES, PETITIONER v.

Justice Blackmun

concurring

Busic v. United States

https://www.courtlistener.com/opinion/110258/busic-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110258/

1979-085

I join the Court's opinion, holding that the decision in Simpson v. United States, 435 U.S. 6 (1978), leads to the conclusion that 18 U.S. C. § 924 (c) is inapplicable where a defendant is charged with committing a substantive federal offense violative of a statute that already provides for enhanced punishment for the use of a firearm. *413 It should be made clear, however, that the Court of Appeals' initial opinion in these cases, discussed by the Court, ante, at 401-402, reflects the confusion that has existed among lower courts about the meaning of this Court's recent pronouncements respecting the multiple punishments aspect of the Double Jeopardy Clause. See Whalen v. United States, 445 U.S. 684, 697-698 (1980) (BLACKMUN, J., concurring in judgment). The Court of Appeals there rejected the view that Congress did not intend the enhancement provisions of § 924 (c) to apply when the substantive offense charged was 18 U.S. C. § 111. See 587 F.2d 577, 581-582, and n. 3. The decision in Simpson, of course, revealed the error of that holding. But the Court of Appeals went on to hold that regardless of Congress' intent to provide for enhanced punishment in this context, the Double Jeopardy Clause prevented it from doing so, at least in certain cases. See id., at 582-584. I do not subscribe to that view, and write separately only to state, once again, that it is my belief that when defendants are sentenced in a single proceeding, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Whalen v. United States, 445 U. S., at 698 (BLACKMUN, J., concurring in judgment). MR. JUSTICE STEWART, with whom MR.

I join the Court's opinion, holding that the decision in leads to the conclusion that 18 U.S. C. 924 (c) is inapplicable where a defendant is charged with committing a substantive federal offense violative of a statute that already provides for enhanced punishment for the use of a firearm. *413 It should be made clear, however, that the Court of Appeals' initial opinion in these cases, discussed by the Court, ante, at 401-402, reflects the confusion that has existed among lower courts about the meaning of this Court's recent pronouncements respecting the multiple punishments aspect of the Double Jeopardy Clause. See The Court of Appeals there rejected the view that Congress did not intend the enhancement provisions of 924 (c) to apply when the substantive offense charged was 18 U.S. C. 111. See and n. 3. The decision in Simpson, of course, revealed the error of that holding. But the Court of Appeals went on to hold that regardless of Congress' intent to provide for enhanced punishment in this context, the Double Jeopardy Clause prevented it from doing so, at least in certain cases. See I do not subscribe to that view, and write separately only to state, once again, that it is my belief that when defendants are sentenced in a single proceeding, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." MR. JUSTICE STEWART, with whom MR.

Justice Stevens

concurring

Morrison v. National Australia Bank Ltd.

https://www.courtlistener.com/opinion/149289/morrison-v-national-australia-bank-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/149289/

2009-082

While I agree that petitioners have failed to state a claim on which relief can be granted, my reasoning differs from the Court’s. I would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades. I Today the Court announces a new “transactional test,” ante, at 21, for defining the reach of §10(b) of the Securi­ ties Exchange Act of 1934 (Exchange Act), 15 U.S. C. §78j(b), and SEC Rule 10b–5, 17 CFR §240.10b–5(b) (2009): Henceforth, those provisions will extend only to “transactions in securities listed on domestic exchanges . . . and domestic transactions in other securities,” ante, at 18. If one confines one’s gaze to the statutory text, the Court’s conclusion is a plausible one. But the federal courts have been construing §10(b) in a different manner for a long time, and the Court’s textual analysis is not nearly so compelling, in my view, as to warrant the aban­ donment of their doctrine. The text and history of §10(b) are famously opaque on the question of when, exactly, transnational securities 2 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment frauds fall within the statute’s compass. As those types of frauds became more common in the latter half of the 20th century, the federal courts were increasingly called upon to wrestle with that question. The Court of Appeals for the Second Circuit, located in the Nation’s financial cen­ ter, led the effort. Beginning in earnest with Schoenbaum v. Firstbrook, 405 F.2d 200, rev’d on rehearing on other grounds, 405 F.2d 215 (1968) (en banc), that court strove, over an extended series of cases, to “discern” under what circumstances “Congress would have wished the precious resources of the United States courts and law enforcement agencies to be devoted to [transnational] transactions,” 547 F.3d 167, 170 (2008) (internal quotation marks omit­ ted). Relying on opinions by Judge Henry Friendly,1 the Second Circuit eventually settled on a conduct-and-effects test. This test asks “(1) whether the wrongful conduct occurred in the Unites States, and (2) whether the wrong­ ful conduct had a substantial effect in the United States or upon United States citizens.” Id., at 171. Numerous cases flesh out the proper application of each prong. The Second Circuit’s test became the “north star” of §10(b) jurisprudence, ante, at 8, not just regionally but nationally as well. With minor variations, other courts converged on the same basic approach.2 See Brief for United States as Amicus Curiae 15 (“The courts have —————— 1 See, e.g., IIT, Int’l Inv. Trust v. Cornfeld, 619 F.2d 909 (CA2 1980); IIT v. Vencap, Ltd., 519 F.2d 1001 (CA2 1975); Bersch v. Drexel Fire stone, Inc., 519 F.2d 974 (CA2 1975); Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326 (CA2 1972). 2 I acknowledge that the Courts of Appeals have differed in their ap­ plications of the conduct-and-effects test, with the consequence that their respective rulings are not perfectly “cohesive.” Ante, at 10, n. 4. It is nevertheless significant that the other Courts of Appeals, along with the other branches of Government, have “embraced the Second Circuit’s approach,” ante, at 9. If this Court were to do likewise, as I would have us do, the lower courts would of course cohere even more tightly around the Second Circuit’s rule. Cite as: 561 U. S. ____ (2010) 3 STEVENS, J., concurring in judgment uniformly agreed that Section 10(b) can apply to a trans­ national securities fraud either when fraudulent conduct has effects in the United States or when sufficient conduct relevant to the fraud occurs in the United States”); see also 1 Restatement (Third) of Foreign Relations Law of the United States §416 (1986) (setting forth conduct-and­ effects test). Neither Congress nor the Securities Ex­ change Commission (Commission) acted to change the law. To the contrary, the Commission largely adopted the Second Circuit’s position in its own adjudications. See ante, at 23–24. In light of this history, the Court’s critique of the deci­ sion below for applying “judge-made rules” is quite mis­ placed. Ante, at 11. This entire area of law is replete with judge-made rules, which give concrete meaning to Con­ gress’ general commands.3 “When we deal with private actions under Rule 10b–5,” then-Justice Rehnquist wrote many years ago, “we deal with a judicial oak which has grown from little more than a legislative acorn.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 737 (1975). The “ ‘Mother Court’ ” of securities law tended to that oak. Id., at 762 (Blackmun, J., dissenting) (describing the Second Circuit). One of our greatest jurists—the judge who, “without a doubt, did more to shape the law of securi­ ties regulation than any [other] in the country”4—was its master arborist. The development of §10(b) law was hardly an instance of —————— 3 It is true that “when it comes to ‘the scope of [the] conduct prohib­ ited by [Rule 10b–5 and] §10(b), the text of the statute [has] control[led] our decision[s].’ ” Ante, at 12, n. 5 (quoting Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 173 (1994); some brackets in original). The problem, when it comes to transna­ tional securities frauds, is that the text of the statute does not provide a great deal of control. As with any broadly phrased, longstanding statute, courts have had to fill in the gaps. 4 Loss, In Memoriam: Henry J. Friendly, 99 Harv. L. Rev. 1722, 1723 (1986). 4 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment judicial usurpation. Congress invited an expansive role for judicial elaboration when it crafted such an open-ended statute in 1934. And both Congress and the Commission subsequently affirmed that role when they left intact the relevant statutory and regulatory language, respectively, throughout all the years that followed. See Brief for Alecta pensionsförsäkring, ömsesidigt et al. as Amici Curiae 31–33; cf. Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 294 (1993) (inferring from recent legislation Congress’ desire to “acknowledg[e]” the 10b–5 action without “entangling” itself in the precise formulation thereof). Unlike certain other domains of securities law, this is “a case in which Congress has en­ acted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and liability,” and much else besides. Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 163 (2008). This Court has not shied away from acknowledging that authority. We have consistently confirmed that, in apply­ ing §10(b) and Rule 10b–5, courts may need “to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regula­ tions offer conclusive guidance.” Blue Chip, 421 U.S., at 737. And we have unanimously “recogniz[ed] a judicial authority to shape . . . the 10b–5 cause of action,” for that is a task “Congress has left to us.” Musick, Peeler, 508 U.S., at 293, 294; see also id., at 292 (noting with ap­ proval that “federal courts have accepted and exercised the principal responsibility for the continuing elaboration of the scope of the 10b–5 right and the definition of the duties it imposes”). Indeed, we have unanimously en­ dorsed the Second Circuit’s basic interpretive approach to §10(b)—ridiculed by the Court today—of striving to “di­ Cite as: 561 U. S. ____ (2010) 5 STEVENS, J., concurring in judgment vin[e] what Congress would have wanted,” ante, at 12.5 “Our task,” we have said, is “to attempt to infer how the 1934 Congress would have addressed the issue.” Musick, Peeler, 508 U.S., at 294. Thus, while the Court devotes a considerable amount of attention to the development of the case law, ante, at 6– 10, it draws the wrong conclusions. The Second Circuit refined its test over several decades and dozens of cases, with the tacit approval of Congress and the Commission and with the general assent of its sister Circuits. That history is a reason we should give additional weight to the Second Circuit’s “judge-made” doctrine, not a reason to denigrate it. “The longstanding acceptance by the courts, coupled with Congress’ failure to reject [its] reasonable interpretation of the wording of §10(b), . . . argues signifi­ cantly in favor of acceptance of the [Second Circuit] rule by this Court.” Blue Chip, 421 U.S., at 733. II The Court’s other main critique of the Second Circuit’s approach—apart from what the Court views as its exces­ sive reliance on functional considerations and recon­ structed congressional intent—is that the Second Circuit —————— 5 Even as the Court repeatedly declined to grant certiorari on cases raising the issue, individual Justices went further and endorsed the Second Circuit’s basic approach to determining the transnational reach of §10(b). See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 529– 530 (1974) (Douglas, J., joined by Brennan, White, and Marshall, JJ., dissenting) (“It has been recognized that the 1934 Act, including the protections of Rule 10b–5, applies when foreign defendants have defrauded American investors, particularly when . . . they have profited by virtue of proscribed conduct within our boundaries. This is true even when the defendant is organized under the laws of a foreign country, is conducting much of its activity outside the United States, and is therefore governed largely by foreign law” (citing, inter alia, Leasco, 468 F.2d, at 1334–1339, and Schoenbaum v. Firstbrook, 405 F.2d 200, rev’d on rehearing on other grounds, 405 F.2d 215 (CA2 1968) (en banc))). 6 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment has “disregard[ed]” the presumption against extraterrito­ riality. Ante, at 6. It is the Court, however, that misap­ plies the presumption, in two main respects. First, the Court seeks to transform the presumption from a flexible rule of thumb into something more like a clear statement rule. We have been here before. In the case on which the Court primarily relies, EEOC v. Ara bian American Oil Co., 499 U.S. 244 (1991) (Aramco), Chief Justice Rehnquist’s majority opinion included a sentence that appeared to make the same move. See id., at 258 (“Congress’ awareness of the need to make a clear statement that a statute applies overseas is amply demon­ strated by the numerous occasions on which it has ex­ pressly legislated the extraterritorial application of a statute”). Justice Marshall, in dissent, vigorously ob­ jected. See id., at 261 (“[C]ontrary to what one would conclude from the majority’s analysis, this canon is not a ‘clear statement’ rule, the application of which relieves a court of the duty to give effect to all available indicia of the legislative will”). Yet even Aramco—surely the most extreme application of the presumption against extraterritoriality in my time on the Court6—contained numerous passages suggesting that the presumption may be overcome without a clear directive. See id., at 248–255 (majority opinion) (repeat­ edly identifying congressional “intent” as the touchstone of the presumption). And our cases both before and after Aramco make perfectly clear that the Court continues to give effect to “all available evidence about the meaning” of a provision when considering its extraterritorial applica­ tion, lest we defy Congress’ will. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 177 (1993) (emphasis added).7 —————— 6 And also one of the most short lived. See Civil Rights Act of 1991, §109, 105 Stat. 1077 (repudiating Aramco). 7 See also, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764 Cite as: 561 U. S. ____ (2010) 7 STEVENS, J., concurring in judgment Contrary to JUSTICE SCALIA’s personal view of statutory interpretation, that evidence legitimately encompasses more than the enacted text. Hence, while the Court’s dictum that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” ante, at 6, makes for a nice catchphrase, the point is overstated. The presumption against extraterritoriality can be useful as a theory of congressional purpose, a tool for managing in­ ternational conflict, a background norm, a tiebreaker. It does not relieve courts of their duty to give statutes the most faithful reading possible. Second, and more fundamentally, the Court errs in suggesting that the presumption against extraterritorial­ ity is fatal to the Second Circuit’s test. For even if the presumption really were a clear statement (or “clear indi­ cation,” ante, at 6, 16) rule, it would have only marginal relevance to this case. It is true, of course, that “this Court ordinarily construes —————— (1993) (declining to apply presumption in assessing question of Sherman Act extraterritoriality); Smith v. United States, 507 U.S. 197, 201–204 (1993) (opinion for the Court by Rehnquist, C. J.) (considering presumption “[l]astly,” to resolve “any lingering doubt,” after consider­ ing structure, legislative history, and judicial interpretations of Federal Tort Claims Act); cf. Sale, 509 U.S., at 188 (stating that presumption “has special force when we are construing treaty and statutory provi­ sions that,” unlike §10(b), “may involve foreign and military affairs for which the President has unique responsibility”); Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 110 (1998) (explaining that lower courts “have been unanimous in concluding that the presumption against extraterritoriality is not a clear statement rule”). The Court also relies on Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455–456 (2007). Ante, at 16. Yet Micro soft’s articulation of the presumption is a far cry from the Court’s rigid theory. “As a principle of general application,” Microsoft innocuously observed, “we have stated that courts should ‘assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.’ ” 550 U.S., at 455 (quoting F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 155, 164 (2004)). 8 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations,” F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 155, 164 (2004), and that, absent contrary evidence, we presume “Congress is primarily concerned with domestic conditions,” Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Accordingly, the presumption against extraterrito­ riality “provides a sound basis for concluding that Section 10(b) does not apply when a securities fraud with no ef­ fects in the United States is hatched and executed entirely outside this country.” Brief for United States as Amicus Curiae 22. But that is just about all it provides a sound basis for concluding. And the conclusion is not very illu­ minating, because no party to the litigation disputes it. No one contends that §10(b) applies to wholly foreign frauds. Rather, the real question in this case is how much, and what kinds of, domestic contacts are sufficient to trigger application of §10(b).8 In developing its conduct-and­ effects test, the Second Circuit endeavored to derive a solution from the Exchange Act’s text, structure, history, and purpose. Judge Friendly and his colleagues were well aware that United States courts “cannot and should not expend [their] resources resolving cases that do not affect Americans or involve fraud emanating from America.” 547 F.3d, at 175; see also id., at 171 (overriding concern is “ ‘whether there is sufficient United States involvement’ ” (quoting Itoba Ltd. v. Lep Group PLC, 54 F.3d 118, 122 (CA2 1995))). The question just stated does not admit of an easy an­ —————— 8 Cf. Dodge, 16 Berkeley J. Int’l L., at 88, n. 25 (regardless whether one frames question as “whether the presumption against extraterrito­ riality should apply [or] whether the regulation is extraterritorial,” “one must ultimately grapple with the basic issue of what connection to the United States is sufficient to justify the assumption that Congress would want its laws to be applied”). Cite as: 561 U. S. ____ (2010) 9 STEVENS, J., concurring in judgment swer. The text of the Exchange Act indicates that §10(b) extends to at least some activities with an international component, but, again, it is not pellucid as to which ones.9 The Second Circuit draws the line as follows: §10(b) ex­ tends to transnational frauds “only when substantial acts in furtherance of the fraud were committed within the United States,” SEC v. Berger, 322 F.3d 187, 193 (CA2 2003) (internal quotation marks omitted), or when the fraud was “ ‘intended to produce’ ” and did produce “ ‘det­ rimental effects within’ ” the United States, Schoenbaum, 405 F.2d, at 206.10 This approach is consistent with the understanding —————— 9 By its terms, §10(b) regulates “interstate commerce,” 15 U.S. C. §78j, which the Exchange Act defines to include “trade, commerce, transportation, or communication . . . between any foreign country and any State, or between any State and any place or ship outside thereof.” §78c(a)(17). Other provisions of the Exchange Act make clear that Congress contemplated some amount of transnational application. See, e.g., §78b(2) (stating, in explaining necessity for regulation, that “[t]he prices established and offered in [securities] transactions are generally disseminated and quoted throughout the United States and foreign countries and constitute a basis for determining and establishing the prices at which securities are bought and sold”); §78dd(b) (exempting from regulation foreign parties “unless” they transact business in securities “in contravention of such rules and regulations as the Com­ mission may prescribe as necessary or appropriate to prevent the evasion of this chapter” (emphasis added)); see also Schoenbaum, 405 F.2d, at 206–208 (reviewing statutory text and legislative history). The Court finds these textual references insufficient to overcome the presumption against extraterritoriality, ante, at 13–15, but as ex­ plained in the main text, that finding rests upon the Court’s misappli­ cation of the presumption. 10 The Government submits that a “transnational securities fraud violates Section 10(b) if significant conduct material to the fraud’s success occurs in the United States.” Brief for United States as Amicus Curiae 6. I understand the Government’s submission to be largely a repackaging of the “conduct” prong of the Second Circuit’s test. The Government expresses no view on that test’s “effects” prong, as the decision below considered only respondents’ conduct. See id., at 15, n. 2; 547 F.3d 167, 171 (CA2 2008). 10 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment shared by most scholars that Congress, in passing the Exchange Act, “expected U. S. securities laws to apply to certain international transactions or conduct.” Buxbaum, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, 46 Colum. J. Transnat’l L. 14, 19 (2007); see also Leasco Data Process ing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1336 (CA2 1972) (Friendly, J.) (detailing evidence that Congress “meant §10(b) to protect against fraud in the sale or pur­ chase of securities whether or not these were traded on organized United States markets”). It is also consistent with the traditional understanding, regnant in the 1930’s as it is now, that the presumption against extraterritorial­ ity does not apply “when the conduct [at issue] occurs within the United States,” and has lesser force when “the failure to extend the scope of the statute to a foreign set­ ting will result in adverse effects within the United States.” Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 531 (CADC 1993); accord, Restatement (Second) of Foreign Relations Law of the United States §38 (1964– 1965); cf. Small v. United States, 544 U.S. 385, 400 (2005) (THOMAS, J., joined by SCALIA and KENNEDY, JJ., dissent­ ing) (presumption against extraterritoriality “lend[s] no support” to a “rule restricting a federal statute from reach­ ing conduct within U. S. borders”); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 705 (1962) (presumption against extraterritoriality not controlling “[s]ince the activities of the defendants had an impact within the United States and upon its foreign trade”). And it strikes a reasonable balance between the goals of “preventing the export of fraud from America,” protecting shareholders, enhancing investor confidence, and deter­ ring corporate misconduct, on the one hand, and conserv­ ing United States resources and limiting conflict with Cite as: 561 U. S. ____ (2010) 11 STEVENS, J., concurring in judgment foreign law, on the other.11 547 F.3d, at 175. Thus, while §10(b) may not give any “clear indication” on its face as to how it should apply to transnational securities frauds, ante, at 6, 16, it does give strong clues that it should cover at least some of them, see n. 9, supra. And in my view, the Second Circuit has done the best job of discerning what sorts of transnational frauds Congress meant in 1934—and still means today—to regulate. I do not take issue with the Court for beginning its inquiry with the statutory text, rather than the doctrine in the Courts of Appeals. Cf. ante, at 18, n. 9. I take issue with the Court for beginning and ending its inquiry with the statutory text, when the text does not speak with geo­ graphic precision, and for dismissing the long pedigree of, and the persuasive account of congressional intent embod­ ied in, the Second Circuit’s rule. Repudiating the Second Circuit’s approach in its en­ tirety, the Court establishes a novel rule that will foreclose private parties from bringing §10(b) actions whenever the relevant securities were purchased or sold abroad and are not listed on a domestic exchange.12 The real motor of the —————— 11 Given its focus on “domestic conditions,” Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949), I expect that virtually all “ ‘foreign-cubed’ ” actions—actions in which “(1) foreign plaintiffs [are] suing (2) a foreign issuer in an American court for violations of American securities laws based on securities transactions in (3) foreign countries,” 547 F.3d, at 172—would fail the Second Circuit’s test. As they generally should. Under these circumstances, the odds of the fraud having a substantial connection to the United States are low. In recognition of the Exchange Act’s focus on American investors and the novelty of foreign-cubed lawsuits, and in the interest of promoting clarity, it might have been appropriate to incorporate one bright line into the Second Circuit’s test, by categorically excluding such lawsuits from §10(b)’s ambit. 12 The Court’s opinion does not, however, foreclose the Commission from bringing enforcement actions in additional circumstances, as no issue concerning the Commission’s authority is presented by this case. The Commission’s enforcement proceedings not only differ from private §10(b) actions in numerous potentially relevant respects, see Brief for 12 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment Court’s opinion, it seems, is not the presumption against extraterritoriality but rather the Court’s belief that trans­ actions on domestic exchanges are “the focus of the Ex­ change Act” and “the objects of [its] solicitude.” Ante, at 17, 18. In reality, however, it is the “public interest” and “the interests of investors” that are the objects of the statute’s solicitude. Europe & Overseas Commodity Trad ers, S. A. v. Banque Paribas London, 147 F.3d 118, 125 (CA2 1998) (citing H. R. Rep. No. 1838, 73d Cong., 2d Sess., 32–33 (1934)); see also Basic Inc. v. Levinson, 485 U.S. 224, 230 (1988) (“The 1934 Act was designed to protect investors against manipulation of stock prices” (citing S. Rep. No. 792, 73d Cong., 2d Sess., 1–5 (1934)); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195 (1976) (“The 1934 Act was intended principally to protect inves­ tors . . . ”); S. Rep. No. 1455, 73d Cong., 2d Sess., 68 (1934) (“The Securities Exchange Act of 1934 aims to protect the interests of the public against the predatory operations of directors, officers, and principal stockholders of corpora­ tions . . . ”). And while the clarity and simplicity of the Court’s test may have some salutary consequences, like all bright-line rules it also has drawbacks. Imagine, for example, an American investor who buys shares in a company listed only on an overseas exchange. That company has a major American subsidiary with executives based in New York City; and it was in New York City that the executives masterminded and imple­ mented a massive deception which artificially inflated the stock price—and which will, upon its disclosure, cause the —————— United States as Amicus Curiae 12–13, but they also pose a lesser threat to international comity, id., at 26–27; cf. Empagran, 542 U.S., at 171 (“ ‘[P]rivate plaintiffs often are unwilling to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the U. S. Government’ ” (quoting Griffin, Extra­ territoriality in U. S. and EU Antitrust Enforcement, 67 Antitrust L. J. 159, 194 (1999); alteration in original)). Cite as: 561 U. S. ____ (2010) 13 STEVENS, J., concurring in judgment price to plummet. Or, imagine that those same executives go knocking on doors in Manhattan and convince an unso­ phisticated retiree, on the basis of material misrepresen­ tations, to invest her life savings in the company’s doomed securities. Both of these investors would, under the Court’s new test, be barred from seeking relief under §10(b). The oddity of that result should give pause. For in walling off such individuals from §10(b), the Court nar­ rows the provision’s reach to a degree that would surprise and alarm generations of American investors—and, I am convinced, the Congress that passed the Exchange Act. Indeed, the Court’s rule turns §10(b) jurisprudence (and the presumption against extraterritoriality) on its head, by withdrawing the statute’s application from cases in which there is both substantial wrongful conduct that occurred in the United States and a substantial injurious effect on United States markets and citizens. III In my judgment, if petitioners’ allegations of fraudulent misconduct that took place in Florida are true, then re­ spondents may have violated §10(b), and could potentially be held accountable in an enforcement proceeding brought by the Commission. But it does not follow that sharehold­ ers who have failed to allege that the bulk or the heart of the fraud occurred in the United States, or that the fraud had an adverse impact on American investors or markets, may maintain a private action to recover damages they suffered abroad. Some cases involving foreign securities transactions have extensive links to, and ramifications for, this country; this case has Australia written all over it. Accordingly, for essentially the reasons stated in the Court of Appeals’ opinion, I would affirm its judgment. The Court instead elects to upend a significant area of securities law based on a plausible, but hardly decisive, 14 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment construction of the statutory text. In so doing, it pays short shrift to the United States’ interest in remedying frauds that transpire on American soil or harm American citizens, as well as to the accumulated wisdom and experi­ ence of the lower courts. I happen to agree with the result the Court reaches in this case. But “I respectfully dis­ sent,” once again, “from the Court’s continuing campaign to render the private cause of action under §10(b) toothless.” Stoneridge, 552 U.S., at 175 (STEVENS, J., dissenting)

While I agree that petitioners have failed to state a claim on which relief can be granted, my reasoning differs from the Court’s. I would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades. I Today the Court announces a new “transactional test,” ante, at 21, for defining the reach of of the Securi­ ties Exchange Act of 4 (Exchange Act), 15 U.S. C. and SEC Rule 10b–5,10b–5(b) (200): Henceforth, those provisions will extend only to “transactions in securities listed on domestic exchanges and domestic transactions in other securities,” ante, at 18. If one confines one’s gaze to the statutory text, the Court’s conclusion is a plausible one. But the federal courts have been construing in a different manner for a long time, and the Court’s textual analysis is not nearly so compelling, in my view, as to warrant the aban­ donment of their doctrine. The text and history of are famously opaque on the question of when, exactly, transnational securities 2 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment frauds fall within the statute’s compass. As those types of frauds became more common in the latter half of the 20th century, the federal courts were increasingly called upon to wrestle with that question. The Court of Appeals for the Second Circuit, located in the Nation’s financial cen­ ter, led the effort. Beginning in earnest with Schoenbaum v. Firstbrook, rev’d on rehearing on other grounds, that court strove, over an extended series of cases, to “discern” under what circumstances “Congress would have wished the precious resources of the United States courts and law enforcement agencies to be devoted to [transnational] transactions,” (internal quotation marks omit­ ted). Relying on opinions by Judge Henry Friendly,1 the Second Circuit eventually settled on a conduct-and-effects test. This test asks “(1) whether the wrongful conduct occurred in the Unites States, and (2) whether the wrong­ ful conduct had a substantial effect in the United States or upon United States citizens.” Numerous cases flesh out the proper application of each prong. The Second Circuit’s test became the “north star” of jurisprudence, ante, at 8, not just regionally but nationally as well. With minor variations, other courts converged on the same basic approach.2 See Brief for United States as Amicus Curiae 15 ; ; ; Data Processing Equip. 2 I acknowledge that the Courts of Appeals have differed in their ap­ plications of the conduct-and-effects test, with the consequence that their respective rulings are not perfectly “cohesive.” Ante, at 10, n. 4. It is nevertheless significant that the other Courts of Appeals, along with the other branches of Government, have “embraced the Second Circuit’s approach,” ante, at If this Court were to do likewise, as I would have us do, the lower courts would of course cohere even more tightly around the Second Circuit’s rule. Cite as: 561 U. S. (2010) 3 STEVENS, J., concurring in judgment uniformly agreed that Section 10(b) can apply to a trans­ national securities fraud either when fraudulent conduct has effects in the United States or when sufficient conduct relevant to the fraud occurs in the United States”); see also 1 Restatement (Third) of Foreign Relations Law of the United States (186) (setting forth conduct-and­ effects test). Neither Congress nor the Securities Ex­ change Commission (Commission) acted to change the law. To the contrary, the Commission largely adopted the Second Circuit’s position in its own adjudications. See ante, at 23–24. In light of this history, the Court’s critique of the deci­ sion below for applying “judge-made rules” is quite mis­ placed. Ante, at 11. This entire area of law is replete with judge-made rules, which give concrete meaning to Con­ gress’ general commands.3 “When we deal with private actions under Rule 10b–5,” then-Justice Rehnquist wrote many years ago, “we deal with a judicial oak which has grown from little more than a legislative acorn.” Blue The “ ‘Mother Court’ ” of securities law tended to that oak. (describing the Second Circuit). One of our greatest jurists—the judge who, “without a doubt, did more to shape the law of securi­ ties regulation than any [other] in the country”4—was its master arborist. The development of law was hardly an instance of —————— 3 It is true that “when it comes to ‘the scope of [the] conduct prohib­ ited by [Rule 10b–5 and] the text of the statute [has] control[led] our decision[s].’ ” Ante, at 12, n. 5 ; some brackets in original). The problem, when it comes to transna­ tional securities frauds, is that the text of the statute does not provide a great deal of control. As with any broadly phrased, longstanding statute, courts have had to fill in the gaps. 4 Loss, In Memoriam: Henry J. Friendly, (186). 4 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment judicial usurpation. Congress invited an expansive role for judicial elaboration when it crafted such an open-ended statute in 4. And both Congress and the Commission subsequently affirmed that role when they left intact the relevant statutory and regulatory language, respectively, throughout all the years that followed. See Brief for Alecta pensionsförsäkring, ömsesidigt et al. as Amici Curiae 31–33; cf. Musick, & (inferring from recent legislation Congress’ desire to “acknowledg[e]” the 10b–5 action without “entangling” itself in the precise formulation thereof). Unlike certain other domains of securities law, this is “a case in which Congress has en­ acted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and liability,” and much else besides. Investment Partners, LLC v. Scientific-Atlanta, Inc., This Court has not shied away from acknowledging that authority. We have consistently confirmed that, in apply­ ing and Rule 10b–5, courts may need “to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regula­ tions offer conclusive guidance.” Blue 421 U.S., at And we have unanimously “recogniz[ed] a judicial authority to shape the 10b–5 cause of action,” for that is a task “Congress has left to us.” Musick, 508 U.S., at 23, ; see also (noting with ap­ proval that “federal courts have accepted and exercised the principal responsibility for the continuing elaboration of the scope of the 10b–5 right and the definition of the duties it imposes”). Indeed, we have unanimously en­ dorsed the Second Circuit’s basic interpretive approach to —ridiculed by the Court today—of striving to “di­ Cite as: 561 U. S. (2010) 5 STEVENS, J., concurring in judgment vin[e] what Congress would have wanted,” ante, at 12.5 “Our task,” we have said, is “to attempt to infer how the 4 Congress would have addressed the issue.” Musick, 508 U.S., at Thus, while the Court devotes a considerable amount of attention to the development of the case law, ante, at 6– 10, it draws the wrong conclusions. The Second Circuit refined its test over several decades and dozens of cases, with the tacit approval of Congress and the Commission and with the general assent of its sister Circuits. That history is a reason we should give additional weight to the Second Circuit’s “judge-made” doctrine, not a reason to denigrate it. “The longstanding acceptance by the courts, coupled with Congress’ failure to reject [its] reasonable interpretation of the wording of argues signifi­ cantly in favor of acceptance of the [Second Circuit] rule by this Court.” Blue II The Court’s other main critique of the Second Circuit’s approach—apart from what the Court views as its exces­ sive reliance on functional considerations and recon­ structed congressional intent—is that the Second Circuit —————— 5 Even as the Court repeatedly declined to grant certiorari on cases raising the issue, individual Justices went further and endorsed the Second Circuit’s basic approach to determining the transnational reach of See, e.g., 52– 530 (174) (Douglas, J., joined by Brennan, White, and Marshall, JJ., dissenting) )). 6 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment has “disregard[ed]” the presumption against extraterrito­ riality. Ante, at 6. It is the Court, however, that misap­ plies the presumption, in two main respects. First, the Court seeks to transform the presumption from a flexible rule of thumb into something more like a clear statement rule. We have been here before. In the case on which the Court primarily relies, Chief Justice Rehnquist’s majority opinion included a sentence that appeared to make the same move. See at 258 (“Congress’ awareness of the need to make a clear statement that a statute applies overseas is amply demon­ strated by the numerous occasions on which it has ex­ pressly legislated the extraterritorial application of a statute”). Justice Marshall, in dissent, vigorously ob­ jected. See (“[C]ontrary to what one would conclude from the majority’s analysis, this canon is not a ‘clear statement’ rule, the application of which relieves a court of the duty to give effect to all available indicia of the legislative will”). Yet even Aramco—surely the most extreme application of the presumption against extraterritoriality in my time on the Court6—contained numerous passages suggesting that the presumption may be overcome without a clear directive. See at 248–255 (majority opinion) (repeat­ edly identifying congressional “intent” as the touchstone of the presumption). And our cases both before and after Aramco make perfectly clear that the Court continues to give effect to “all available evidence about the meaning” of a provision when considering its extraterritorial applica­ tion, lest we defy Congress’ will.7 —————— 6 And also one of the most short lived. See Civil Rights Act of 11, 7 See also, e.g., Hartford Fire Ins. Cite as: 561 U. S. (2010) 7 STEVENS, J., concurring in judgment Contrary to JUSTICE SCALIA’s personal view of statutory interpretation, that evidence legitimately encompasses more than the enacted text. Hence, while the Court’s dictum that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” ante, at 6, makes for a nice catchphrase, the point is overstated. The presumption against extraterritoriality can be useful as a theory of congressional purpose, a tool for managing in­ ternational conflict, a background norm, a tiebreaker. It does not relieve courts of their duty to give statutes the most faithful reading possible. Second, and more fundamentally, the Court errs in suggesting that the presumption against extraterritorial­ ity is fatal to the Second Circuit’s test. For even if the presumption really were a clear statement (or “clear indi­ cation,” ante, at 6, 16) rule, it would have only marginal relevance to this case. It is true, of course, that “this Court ordinarily construes —————— (declining to apply presumption in assessing question of Sherman Act extraterritoriality); 201–204 (opinion for the Court by Rehnquist, C. J.) (considering presumption “[l]astly,” to resolve “any lingering doubt,” after consider­ ing structure, legislative history, and judicial interpretations of Federal Tort Claims Act); cf. (stating that presumption “has special force when we are construing treaty and statutory provi­ sions that,” unlike “may involve foreign and military affairs for which the President has unique responsibility”); Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 110 (18) (explaining that lower courts “have been unanimous in concluding that the presumption against extraterritoriality is not a clear statement rule”). The Court also relies on Microsoft Corp. v. AT&T Corp., Ante, at 16. Yet Micro soft’s articulation of the presumption is a far cry from the Court’s rigid theory. “As a principle of general application,” Microsoft innocuously observed, “we have stated that courts should ‘assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.’ ” ). 8 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations,” F. Hoffmann-La Roche 542 U.S. 155, and that, absent contrary evidence, we presume “Congress is primarily concerned with domestic conditions,” Foley Bros., (14). Accordingly, the presumption against extraterrito­ riality “provides a sound basis for concluding that Section 10(b) does not apply when a securities fraud with no ef­ fects in the United States is hatched and executed entirely outside this country.” Brief for United States as Amicus Curiae 22. But that is just about all it provides a sound basis for concluding. And the conclusion is not very illu­ minating, because no party to the litigation disputes it. No one contends that applies to wholly foreign frauds. Rather, the real question in this case is how much, and what kinds of, domestic contacts are sufficient to trigger application of8 In developing its conduct-and­ effects test, the Second Circuit endeavored to derive a solution from the Exchange Act’s text, structure, history, and purpose. Judge Friendly and his colleagues were well aware that United States courts “cannot and should not expend [their] resources resolving cases that do not affect Americans or involve fraud emanating from America.” ; see also (overriding concern is “ ‘whether there is sufficient United States involvement’ ” (quoting Itoba (CA2 15))). The question just stated does not admit of an easy an­ —————— 8 Cf. Dodge, 16 Berkeley J. Int’l L., at 88, n. 25 (regardless whether one frames question as “whether the presumption against extraterrito­ riality should apply [or] whether the regulation is extraterritorial,” “one must ultimately grapple with the basic issue of what connection to the United States is sufficient to justify the assumption that Congress would want its laws to be applied”). Cite as: 561 U. S. (2010) STEVENS, J., concurring in judgment swer. The text of the Exchange Act indicates that extends to at least some activities with an international component, but, again, it is not pellucid as to which ones. The Second Circuit draws the line as follows: ex­ tends to transnational frauds “only when substantial acts in furtherance of the fraud were committed within the United States,” (CA2 2003) (internal quotation marks omitted), or when the fraud was “ ‘intended to produce’ ” and did produce “ ‘det­ rimental effects within’ ” the United States, Schoenbaum,10 This approach is consistent with the understanding —————— By its terms, regulates “interstate commerce,” 15 U.S. C. which the Exchange Act defines to include “trade, commerce, transportation, or communication between any foreign country and any State, or between any State and any place or ship outside thereof.” Other provisions of the Exchange Act make clear that Congress contemplated some amount of transnational application. See, e.g., (stating, in explaining necessity for regulation, that “[t]he prices established and offered in [securities] transactions are generally disseminated and quoted throughout the United States and foreign countries and constitute a basis for determining and establishing the prices at which securities are bought and sold”); (exempting from regulation foreign parties “unless” they transact business in securities “in contravention of such rules and regulations as the Com­ mission may prescribe as necessary or appropriate to prevent the evasion of this chapter” ); see also Schoenbaum, 405 F.2d, at 206–208 (reviewing statutory text and legislative history). The Court finds these textual references insufficient to overcome the presumption against extraterritoriality, ante, at 13–15, but as ex­ plained in the main text, that finding rests upon the Court’s misappli­ cation of the presumption. 10 The Government submits that a “transnational securities fraud violates Section 10(b) if significant conduct material to the fraud’s success occurs in the United States.” Brief for United States as Amicus Curiae 6. I understand the Government’s submission to be largely a repackaging of the “conduct” prong of the Second Circuit’s test. The Government expresses no view on that test’s “effects” prong, as the decision below considered only respondents’ conduct. See n. 2; 10 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment shared by most scholars that Congress, in passing the Exchange Act, “expected U. S. securities laws to apply to certain international transactions or conduct.” Buxbaum, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, 46 Colum. J. Transnat’l L. 14, 1 ; see also Data Process ing Equip. (Friendly, J.) (detailing evidence that Congress “meant to protect against fraud in the sale or pur­ chase of securities whether or not these were traded on organized United States markets”). It is also consistent with the traditional understanding, regnant in the 0’s as it is now, that the presumption against extraterritorial­ ity does not apply “when the conduct [at issue] occurs within the United States,” and has lesser force when “the failure to extend the scope of the statute to a foreign set­ ting will result in adverse effects within the United States.” Environmental Defense Fund, Inc. v. Massey, 86 F.2d 528, 531 ; accord, Restatement (Second) of Foreign Relations Law of the United States (164– 165); cf. (THOMAS, J., joined by SCALIA and KENNEDY, JJ., dissent­ ing) (presumption against extraterritoriality “lend[s] no support” to a “rule restricting a federal statute from reach­ ing conduct within U. S. borders”); Continental Ore Co. v. Union Carbide & Carbon Corp., (presumption against extraterritoriality not controlling “[s]ince the activities of the defendants had an impact within the United States and upon its foreign trade”). And it strikes a reasonable balance between the goals of “preventing the export of fraud from America,” protecting shareholders, enhancing investor confidence, and deter­ ring corporate misconduct, on the one hand, and conserv­ ing United States resources and limiting conflict with Cite as: 561 U. S. (2010) 11 STEVENS, J., concurring in judgment foreign law, on the Thus, while may not give any “clear indication” on its face as to how it should apply to transnational securities frauds, ante, at 6, 16, it does give strong clues that it should cover at least some of them, see n. And in my view, the Second Circuit has done the best job of discerning what sorts of transnational frauds Congress meant in 4—and still means today—to regulate. I do not take issue with the Court for beginning its inquiry with the statutory text, rather than the doctrine in the Courts of Appeals. Cf. ante, at 18, n. I take issue with the Court for beginning and ending its inquiry with the statutory text, when the text does not speak with geo­ graphic precision, and for dismissing the long pedigree of, and the persuasive account of congressional intent embod­ ied in, the Second Circuit’s rule. Repudiating the Second Circuit’s approach in its en­ tirety, the Court establishes a novel rule that will foreclose private parties from bringing actions whenever the relevant securities were purchased or sold abroad and are not listed on a domestic exchange.12 The real motor of the —————— 11 Given its focus on “domestic conditions,” Foley Bros., (14), I expect that virtually all “ ‘foreign-cubed’ ” actions—actions in which “(1) foreign plaintiffs [are] suing (2) a foreign issuer in an American court for violations of American securities laws based on securities transactions in (3) foreign countries,” 547 F.3d, at 172—would fail the Second Circuit’s test. As they generally should. Under these circumstances, the odds of the fraud having a substantial connection to the United States are low. In recognition of the Exchange Act’s focus on American investors and the novelty of foreign-cubed lawsuits, and in the interest of promoting clarity, it might have been appropriate to incorporate one bright line into the Second Circuit’s test, by categorically excluding such lawsuits from ’s ambit. 12 The Court’s opinion does not, however, foreclose the Commission from bringing enforcement actions in additional circumstances, as no issue concerning the Commission’s authority is presented by this case. The Commission’s enforcement proceedings not only differ from private actions in numerous potentially relevant respects, see Brief for 12 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment Court’s opinion, it seems, is not the presumption against extraterritoriality but rather the Court’s belief that trans­ actions on domestic exchanges are “the focus of the Ex­ change Act” and “the objects of [its] solicitude.” Ante, at 17, 18. In reality, however, it is the “public interest” and “the interests of investors” that are the objects of the statute’s solicitude. Europe & Overseas Commodity Trad ers, S. (CA2 18) (citing H. R. Rep. No. 1838, 73d Cong., 2d Sess., 32–33 (4)); see also Basic Inc. v. Levinson, 485 U.S. 224, 230 (188) (“The 4 Act was designed to protect investors against manipulation of stock prices” (citing S. Rep. No. 72, 73d Cong., 2d Sess., 1–5 (4)); Ernst & 15 (176) (“The 4 Act was intended principally to protect inves­ tors ”); S. Rep. No. 1455, 73d Cong., 2d Sess., 68 (4) (“The Securities Exchange Act of 4 aims to protect the interests of the public against the predatory operations of directors, officers, and principal stockholders of corpora­ tions ”). And while the clarity and simplicity of the Court’s test may have some salutary consequences, like all bright-line rules it also has drawbacks. Imagine, for example, an American investor who buys shares in a company listed only on an overseas exchange. That company has a major American subsidiary with executives based in New York City; and it was in New York City that the executives masterminded and imple­ mented a massive deception which artificially inflated the stock price—and which will, upon its disclosure, cause the —————— United States as Amicus Curiae 12–13, but they also pose a lesser threat to international comity, at 26–27; cf. Empagran, 542 U.S., at (“ ‘[P]rivate plaintiffs often are unwilling to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the U. S. Government’ ” (quoting Griffin, Extra­ territoriality in U. S. and EU Antitrust Enforcement, 67 Antitrust L. J. 15, 14 (1); alteration in original)). Cite as: 561 U. S. (2010) 13 STEVENS, J., concurring in judgment price to plummet. Or, imagine that those same executives go knocking on doors in Manhattan and convince an unso­ phisticated retiree, on the basis of material misrepresen­ tations, to invest her life savings in the company’s doomed securities. Both of these investors would, under the Court’s new test, be barred from seeking relief under The oddity of that result should give pause. For in walling off such individuals from the Court nar­ rows the provision’s reach to a degree that would surprise and alarm generations of American investors—and, I am convinced, the Congress that passed the Exchange Act. Indeed, the Court’s rule turns jurisprudence (and the presumption against extraterritoriality) on its head, by withdrawing the statute’s application from cases in which there is both substantial wrongful conduct that occurred in the United States and a substantial injurious effect on United States markets and citizens. III In my judgment, if petitioners’ allegations of fraudulent misconduct that took place in Florida are true, then re­ spondents may have violated and could potentially be held accountable in an enforcement proceeding brought by the Commission. But it does not follow that sharehold­ ers who have failed to allege that the bulk or the heart of the fraud occurred in the United States, or that the fraud had an adverse impact on American investors or markets, may maintain a private action to recover damages they suffered abroad. Some cases involving foreign securities transactions have extensive links to, and ramifications for, this country; this case has Australia written all over it. Accordingly, for essentially the reasons stated in the Court of Appeals’ opinion, I would affirm its judgment. The Court instead elects to upend a significant area of securities law based on a plausible, but hardly decisive, 14 MORRISON v. NATIONAL AUSTRALIA BANK LTD. STEVENS, J., concurring in judgment construction of the statutory text. In so doing, it pays short shrift to the United States’ interest in remedying frauds that transpire on American soil or harm American citizens, as well as to the accumulated wisdom and experi­ ence of the lower courts. I happen to agree with the result the Court reaches in this case. But “I respectfully dis­ sent,” once again, “from the Court’s continuing campaign to render the private cause of action under toothless.” (STEVENS, J., dissenting)

Justice Powell

concurring

Blackledge v. Allison

https://www.courtlistener.com/opinion/109648/blackledge-v-allison/

https://www.courtlistener.com/api/rest/v3/clusters/109648/

1976-095

I join the opinion of the Court, and write briefly only to emphasize the importance of finality to a system of justice.[*] Our traditional concern for "persons whom society has *84 grievously wronged and for whom belated liberation is little enough compensation," Fay v. Noia, 372 U.S. 391, 441 (1963), has resulted in a uniquely elaborate system of appeals and collateral review, even in cases in which the issue presented has little or nothing to do with innocence of the accused. The substantial societal interest in both innocence and finality of judgments is subordinated in many instances to formalisms. The case before us today is not necessarily an example of abuse of the system. It is an example, however, of how finality can be frustrated by failure to adhere to proper procedures at the trial court level. I do not prejudge the ultimate result in this case by saying that respondent's guilty plea may well have been made knowingly and voluntarily. The case is here, five years after respondent's conviction, and following review by the North Carolina courts, the United States District Court, and the Court of Appeals for the Fourth Circuit, primarily because the record before us leaves room for some doubt as to the reliability of the procedure followed with respect to the guilty plea. All that we have in the record, as a basis for testing the possible merit of respondent's petition, are answers to a printed form certified by the trial judge. We do not know whether anything was said by the judge, the prosecutor, or counsel for respondent, other than the questions read from the form and the monosyllabic answers by respondent. There was no transcript of the proceedings. As the Court's opinion indicates, there is every reason to believe that if a procedure similar to that prescribed by the new North Carolina statute is followed, a contention such as that made by respondent will justify an evidentiary hearing "only in the most extraordinary circumstances." Ante, at 80 n. 19. If all participants in the process at the plea stage are mindful of the importance of adhering carefully to prescribed procedures and of preserving a full record thereof, the causes of justice and finality both will be served.

I join the opinion of the Court, and write briefly only to emphasize the importance of finality to a system of justice.[*] Our traditional concern for "persons whom society has *84 grievously wronged and for whom belated liberation is little enough compensation," has resulted in a uniquely elaborate system of appeals and collateral review, even in cases in which the issue presented has little or nothing to do with innocence of the accused. The substantial societal interest in both innocence and finality of judgments is subordinated in many instances to formalisms. The case before us today is not necessarily an example of abuse of the system. It is an example, however, of how finality can be frustrated by failure to adhere to proper procedures at the trial court level. I do not prejudge the ultimate result in this case by saying that respondent's guilty plea may well have been made knowingly and voluntarily. The case is here, five years after respondent's conviction, and following review by the North Carolina courts, the United States District Court, and the Court of Appeals for the Fourth Circuit, primarily because the record before us leaves room for some doubt as to the reliability of the procedure followed with respect to the guilty plea. All that we have in the record, as a basis for testing the possible merit of respondent's petition, are answers to a printed form certified by the trial judge. We do not know whether anything was said by the judge, the prosecutor, or counsel for respondent, other than the questions read from the form and the monosyllabic answers by respondent. There was no transcript of the proceedings. As the Court's opinion indicates, there is every reason to believe that if a procedure similar to that prescribed by the new North Carolina statute is followed, a contention such as that made by respondent will justify an evidentiary hearing "only in the most extraordinary circumstances." Ante, at 80 n. 19. If all participants in the process at the plea stage are mindful of the importance of adhering carefully to prescribed procedures and of preserving a full record thereof, the causes of justice and finality both will be served.

Justice Thomas

majority

JEM Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc.

https://www.courtlistener.com/opinion/118469/jem-ag-supply-inc-v-pioneer-hi-bred-international-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118469/

2001-008

This case presents the question whether utility patents may be issued for plants under 35 U.S. C. § 101 (1994 ed.), or whether the Plant Variety Protection Act, 84 Stat. 1542, as amended, 7 U.S. C. § 2321 et seq., and the Plant Patent Act of 1930, 35 U.S. C. §§ 161-164 (1994 ed. and Supp. V), are the exclusive means of obtaining a federal statutory right to exclude others from reproducing, selling, or using plants or plant varieties. We hold that utility patents may be issued for plants. I The United States Patent and Trademark Office (PTO) has issued some 1,800 utility patents for plants, plant parts, and seeds pursuant to 35 U.S. C. § 101. Seventeen of these patents are held by respondent Pioneer Hi-Bred International, Inc. (Pioneer). Pioneer's patents cover the manufacture, use, sale, and offer for sale of the company's inbred and hybrid corn seed products. A patent for an inbred corn line protects both the seeds and plants of the inbred line and the hybrids produced by crossing the protected inbred line with another corn line. See, e. g. , U. S. Patent No. 5,506,367, col. 3, App. 42. A hybrid plant patent protects the plant, its seeds, variants, mutants, and trivial modifications of the hybrid. See U. S. Patent No. 5,491,295, cols. 2-3, id., at 29-30. Pedigree inbred corn plants are developed by crossing corn plants with desirable characteristics and then inbreeding the resulting plants for several generations until the resulting plant line is homogenous. Inbreds are often weak *128 and have a low yield; their value lies primarily in their use for making hybrids. See, e. g., U. S. Patent No. 5,506,367, col. 6, id., at 43 (describing the traits and applications of the inbred corn line PHP38 by reference to the qualities exhibited in hybrid plants created with PHP38). Hybrid seeds are produced by crossing two inbred corn plants and are especially valuable because they produce strong and vibrant hybrid plants with selected highly desirable characteristics. For instance, Pioneer's hybrid corn plant 3394 is "characterized by superior yield for maturity, excellent seedling vigor, very good roots and stalks, and exceptional stay green." U. S. Patent No. 5,491,295, cols. 2-3, id., at 29-30. Hybrid plants, however, generally do not reproduce true-to-type, i. e., seeds produced by a hybrid plant do not reliably yield plants with the same hybrid characteristics. Thus, a farmer who wishes to continue growing hybrid plants generally needs to buy more hybrid seed. Pioneer sells its patented hybrid seeds under a limited label license that provides: "License is granted solely to produce grain and/or forage." Id., at 51. The license "does not extend to the use of seed from such crop or the progeny thereof for propagation or seed multiplication." Ibid. It strictly prohibits "the use of such seed or the progeny thereof for propagation or seed multiplication or for production or development of a hybrid or different variety of seed." Ibid. Petitioner J. E. M. Ag Supply, Inc., doing business as Farm Advantage, Inc., purchased patented hybrid seeds from Pioneer in bags bearing this license agreement. Although not a licensed sales representative of Pioneer, Farm Advantage resold these bags. Pioneer subsequently brought a complaint for patent infringement against Farm Advantage and several other corporations and residents of the State of Iowa who are distributors and customers for Farm Advantage (referred to collectively as Farm Advantage or petitioners). Pioneer alleged that Farm Advantage has "for a long-time *129 past been and still [is] infringing one or more [Pioneer patents] by making, using, selling, or offering for sale corn seed of the . . . hybrids in infringement of these patents-in-suit." Id., at 10. Farm Advantage answered with a general denial of patent infringement and entered a counterclaim of patent invalidity, arguing that patents that purport to confer protection for corn plants are invalid because sexually reproducing plants are not patentable subject matter within the scope of 35 U.S. C. § 101 (1994 ed.). App. 12-13, 17. Farm Advantage maintained that the Plant Patent Act of 1930 (PPA) and the Plant Variety Protection Act (PVPA) set forth the exclusive statutory means for the protection of plant life because these statutes are more specific than § 101, and thus each carves out subject matter from § 101 for special treatment.[1] The District Court granted summary judgment to Pioneer. Relying on this Court's broad construction of § 101 in Diamond v. Chakrabarty, 447 U.S. 303 (1980), the District Court held that the subject matter covered by § 101 clearly includes plant life. 49 U.S.P.Q. 2d (BNA) 1813, 1817 (ND Iowa 1998). It further concluded that in enacting the PPA and the PVPA Congress neither expressly nor implicitly removed plants from § 101's subject matter. Id., at 1819. In particular, the District Court noted that Congress did not implicitly repeal § 101 by passing the more specific PVPA because there was no irreconcilable conflict between the PVPA and § 101. Id., at 1821. The United States Court of Appeals for the Federal Circuit affirmed the judgment and reasoning of the District *130 Court. 200 F.3d 1374 (2000). We granted certiorari, 531 U.S. 1143 (2001), and now affirm. II The question before us is whether utility patents may be issued for plants pursuant to 35 U.S. C. § 101 (1994 ed.). The text of § 101 provides: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." As this Court recognized over 20 years ago in Chakrabarty, 447 U. S., at 308, the language of § 101 is extremely broad. "In choosing such expansive terms as `manufacture' and `composition of matter,' modified by the comprehensive `any,' Congress plainly contemplated that the patent laws would be given wide scope." Ibid. This Court thus concluded in Chakrabarty that living things were patentable under § 101, and held that a manmade micro-organism fell within the scope of the statute. As Congress recognized, "the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions." Id., at 313. In Chakrabarty, the Court also rejected the argument that Congress must expressly authorize protection for new patentable subject matter: "It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is `the province and duty of the judicial department to say what the law is.' Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in § 101; we perform ours in construing the language Congress has employed. *131 . . . The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting `the Progress of Science and the useful Arts' with all that means for the social and economic benefits envisioned by Jefferson." Id., at 315. Thus, in approaching the question presented by this case, we are mindful that this Court has already spoken clearly concerning the broad scope and applicability of § 101.[2] Several years after Chakrabarty, the PTO Board of Patent Appeals and Interferences held that plants were within the understood meaning of "manufacture" or "composition of matter" and therefore were within the subject matter of § 101. In re Hibberd, 227 U.S.P.Q. (BNA) 443, 444 (1985). It has been the unbroken practice of the PTO since that time to confer utility patents for plants. To obtain utility patent protection, a plant breeder must show that the plant he has developed is new, useful, and nonobvious. 35 U.S. C. §§ 101-103 (1994 ed. and Supp. V). In addition, the plant must meet the specifications of § 112, which require a written description of the plant and a deposit of seed that is publicly accessible. See 37 CFR §§ 1.801-1.809 (2001). Petitioners do not allege that Pioneer's patents are invalid for failure to meet the requirements for a utility patent. Nor do they dispute that plants otherwise fall within the terms of § 101's broad language that includes "manufacture" *132 or "composition of matter." Rather, petitioners argue that the PPA and the PVPA provide the exclusive means of protecting new varieties of plants, and so awarding utility patents for plants upsets the scheme contemplated by Congress. Brief for Petitioners 11. We disagree. Considering the two plant specific statutes in turn, we find that neither forecloses utility patent coverage for plants. A The 1930 PPA conferred patent protection to asexually reproduced plants. Significantly, nothing within either the original 1930 text of the statute or its recodified version in 1952 indicates that the PPA's protection for asexually reproduced plants was intended to be exclusive. Plants were first explicitly brought within the scope of patent protection in 1930 when the PPA included "plants" among the useful things subject to patents. Thus the 1930 PPA amended the general utility patent provision, Rev. Stat. § 4886, to provide: "Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant, not known or used by others in this country, before his invention or discovery thereof, . . . may . . . obtain a patent therefor." Act of May 23, 1930, § 1, 46 Stat. 376. This provision limited protection to the asexual reproduction of the plant. Asexual reproduction occurs by grafting, budding, or the like, and produces an offspring with a genetic combination identical to that of the single parent—essentially a clone.[3] The PPA also amended Revised Statutes *133 § 4888 by adding: "No plant patent shall be declared invalid on the ground of noncompliance with this section if the description is made as complete as is reasonably possible." Id., § 2, 46 Stat. 376. In 1952, Congress revised the patent statute and placed the plant patents into a separate chapter 15 of Title 35 entitled, "Patents for plants." 35 U.S. C. §§ 161-164.[4] This was merely a housekeeping measure that did nothing to change the substantive rights or requirements for a plant patent. A "plant patent"[5] continued to provide only the exclusive right to asexually reproduce a protected plant, § 163, and the description requirement remained relaxed, § 162.[6] Plant patents under the PPA thus have very limited coverage and less stringent requirements than § 101 utility patents. Importantly, chapter 15 nowhere states that plant patents are the exclusive means of granting intellectual property protection to plants. Although unable to point to any language that requires, or even suggests, that Congress intended the PPA's protections to be exclusive, petitioners advance three reasons why the PPA should preclude assigning utility patents for plants. We find none of these arguments to be persuasive. *134 First, petitioners argue that plants were not covered by the general utility patent statute prior to 1930. Brief for Petitioners 19 ("If the patent laws before 1930 allowed patents on `plants' then there would have been no reason for Congress to have passed the 1930 PPA . . ."). In advancing this argument, petitioners overlook the state of patent law and plant breeding at the time of the PPA's enactment. The Court in Chakrabarty explained the realities of patent law and plant breeding at the time the PPA was enacted: "Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law. . . . The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the `written description' requirement of the patent law." 447 U.S., at 311-312. Congress addressed these concerns with the 1930 PPA, which recognized that the work of a plant breeder was a patentable invention and relaxed the written description requirement. See §§ 1-2, 46 Stat. 376. The PPA thus gave patent protection to breeders who were previously unable to overcome the obstacles described in Chakrabarty. This does not mean, however, that prior to 1930 plants could not have fallen within the subject matter of § 101. Rather, it illustrates only that in 1930 Congress believed that plants were not patentable under § 101, both because they were living things and because in practice they could not meet the stringent description requirement. Yet these premises were disproved over time. As this Court held in Chakrabarty, "the relevant distinction" for purposes of § 101 is not "between living and inanimate things, but between products of nature, whether living or not, and humanmade inventions." 447 U.S., at 313. In addition, advances in biological knowledge and breeding expertise have allowed plant breeders to satisfy § 101's demanding description requirement. *135 Whatever Congress may have believed about the state of patent law and the science of plant breeding in 1930, plants have always had the potential to fall within the general subject matter of § 101, which is a dynamic provision designed to encompass new and unforeseen inventions. "A rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability." Id., at 316. Petitioners essentially ask us to deny utility patent protection for sexually reproduced plants because it was unforeseen in 1930 that such plants could receive protection under § 101. Denying patent protection under § 101 simply because such coverage was thought technologically infeasible in 1930, however, would be inconsistent with the forwardlooking perspective of the utility patent statute. As we noted in Chakrabarty, "Congress employed broad general language in drafting § 101 precisely because [new types of] inventions are often unforeseeable." Ibid. Second, petitioners maintain that the PPA's limitation to asexually reproduced plants would make no sense if Congress intended § 101 to authorize patents on plant varieties that were sexually reproduced. But this limitation once again merely reflects the reality of plant breeding in 1930. At that time, the primary means of reproducing bred plants true-to-type was through asexual reproduction. Congress thought that sexual reproduction through seeds was not a stable way to maintain desirable bred characteristics.[7]*136 Thus, it is hardly surprising that plant patents would protect only asexual reproduction, since this was the most reliable type of reproduction for preserving the desirable characteristics of breeding. See generally E. Sinnott, Botany Principles and Problems 266-267 (1935); J. Priestley & L. Scott, Introduction to Botany 530 (1938). Furthermore, like other laws protecting intellectual property, the plant patent provision must be understood in its proper context. Until 1924, farmers received seed from the Government's extensive free seed program that distributed millions of packages of seed annually. See Fowler, The Plant Patent Act of 1930: A Sociological History of its Creation, 82 J. Pat. & Tm. Off. Soc. 621, 623, 632 (2000).[8] In 1930, seed companies were not primarily concerned with varietal protection, but were still trying to successfully commodify seeds. There was no need to protect seed breeding because there were few markets for seeds. See Kloppenburg 71 ("Seed companies' first priority was simply to establish a market, and they continued to view the congressional distribution as a principal constraint"). By contrast, nurseries at the time had successfully commercialized asexually reproduced fruit trees and flowers. These plants were regularly copied, draining profits from those who discovered or bred new varieties. Nurseries *137 were the primary subjects of agricultural marketing and so it is not surprising that they were the specific focus of the PPA. See Fowler, supra, at 634-635; Kneen, Patent Plants Enrich Our World, National Geographic 357, 363 (1948). Moreover, seed companies at the time could not point to genuinely new varieties and lacked the scientific knowledge to engage in formal breeding that would increase agricultural productivity. See Kloppenburg 77; Fowler, supra, at 633 ("Absent significant numbers of distinct new varieties being produced by seed companies, variety protection through something like a patent law would hardly have been considered a business necessity"). In short, there is simply no evidence, let alone the overwhelming evidence needed to establish repeal by implication, see Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 381 (1996), that Congress, by specifically protecting asexually reproduced plants through the PPA, intended to preclude utility patent protection for sexually reproduced plants.[9] Third, petitioners argue that in 1952 Congress would not have moved plants out of the utility patent provision and into § 161 if it had intended § 101 to allow for protection of plants. Brief for Petitioners 20. Petitioners again rely on *138 negative inference because they cannot point to any express indication that Congress intended § 161 to be the exclusive means of patenting plants. But this negative inference simply does not support carving out subject matter that otherwise fits comfortably within the expansive language of § 101, especially when § 101 can protect different attributes and has more stringent requirements than does § 161. This is especially true given that Congress in 1952 did nothing to change the substantive rights or requirements for obtaining a plant patent. Absent a clear intent to the contrary, we are loath to interpret what was essentially a housekeeping measure as an affirmative decision by Congress to deny sexually reproduced plants patent protection under § 101. B By passing the PVPA in 1970, Congress specifically authorized limited patent-like protection for certain sexually reproduced plants. Petitioners therefore argue that this legislation evidences Congress' intent to deny broader § 101 utility patent protection for such plants. Petitioners' argument, however, is unavailing for two reasons. First, nowhere does the PVPA purport to provide the exclusive statutory means of protecting sexually reproduced plants. Second, the PVPA and § 101 can easily be reconciled. Because it is harder to qualify for a utility patent than for a Plant Variety Protection (PVP) certificate, it only makes sense that utility patents would confer a greater scope of protection. 1 The PVPA provides plant variety protection for: "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety . . . ." 7 U.S. C. § 2402(a). *139 Infringement of plant variety protection occurs, inter alia, if someone sells or markets the protected variety, sexually multiplies the variety as a step in marketing, uses the variety in producing a hybrid, or dispenses the variety without notice that the variety is protected.[10] Since the 1994 amendments, the PVPA also protects "any variety that is essentially derived from a protected variety," § 2541(c)(1), and "any variety whose production requires the *140 repeated use of a protected variety," § 2541(c)(3). See Plant Variety Protection Act Amendments of 1994, § 9, 108 Stat. 3142. Practically, this means that hybrids created from protected plant varieties are also protected; however, it is not infringement to use a protected variety for the development of a hybrid. See 7 U.S. C. § 2541(a)(4).[11] The PVPA also contains exemptions for saving seed and for research. A farmer who legally purchases and plants a protected variety can save the seed from these plants for replanting on his own farm. See § 2543 ("[I]t shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person . . ."); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995). In addition, a protected variety may be used for research. See 7 U.S. C. § 2544 ("The use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute an infringement of the protection provided under this chapter"). The utility patent statute does not contain similar exemptions.[12] Thus, while the PVPA creates a statutory scheme that is comprehensive with respect to its particular protections and subject matter, giving limited protection to plant varieties that are new, distinct, uniform, and stable, § 2402(a), nowhere does it restrict the scope of patentable subject matter under § 101. With nothing in the statute to bolster their view that *141 the PVPA provides the exclusive means for protecting sexually reproducing plants, petitioners rely on the legislative history of the PVPA. They argue that this history shows the PVPA was enacted because sexually reproducing plant varieties and their seeds were not and had never been intended by Congress to be included within the classes of things patentable under Title 35.[13] The PVPA itself, however, contains no statement that PVP certificates were to be the exclusive means of protecting sexually reproducing plants. The relevant statements in the legislative history reveal nothing more than the limited view of plant breeding taken by some Members of Congress who believed that patent protection was unavailable for sexually reproduced plants. This view stems from a lack of awareness concerning scientific possibilities. Furthermore, at the time the PVPA was enacted, the PTO had already issued numerous utility patents for hybrid plant processes. Many of these patents, especially since the 1950's, included claims on the products of the patented process, i. e., the hybrid plant itself. See Kloppenburg 264. Such plants were protected as part of a hybrid process and not on their own. Nonetheless, these hybrids still enjoyed protection under § 101, which reaffirms that such material was within the scope of § 101. 2 Petitioners next argue that the PVPA altered the subjectmatter coverage of § 101 by implication. Brief for Petitioners 33-36. Yet "the only permissible justification for a repeal by implication is when the earlier and later statutes *142 are irreconcilable." Morton v. Mancari, 417 U.S. 535, 550 (1974). "The rarity with which [the Court has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue." Matsushita, 516 U. S., at 381 (internal quotation marks omitted). To be sure, there are differences in the requirements for, and coverage of, utility patents and PVP certificates issued pursuant to the PVPA. These differences, however, do not present irreconcilable conflicts because the requirements for obtaining a utility patent under § 101 are more stringent than those for obtaining a PVP certificate, and the protections afforded by a utility patent are greater than those afforded by a PVP certificate. Thus, there is a parallel relationship between the obligations and the level of protection under each statute. It is much more difficult to obtain a utility patent for a plant than to obtain a PVP certificate because a utility patentable plant must be new, useful, and nonobvious, 35 U.S. C. §§ 101-103. In addition, to obtain a utility patent, a breeder must describe the plant with sufficient specificity to enable others to "make and use" the invention after the patent term expires. § 112. The disclosure required by the Patent Act is "the quid pro quo of the right to exclude." Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484 (1974). The description requirement for plants includes a deposit of biological material, for example, seeds, and mandates that such material be accessible to the public. See 37 CFR §§ 1.801-1.809 (2001); see also App. 39 (seed deposits for U. S. Patent No. 5,491,295). By contrast, a plant variety may receive a PVP certificate without a showing of usefulness or nonobviousness. See 7 U.S. C. § 2402(a) (requiring that the variety be only new, distinct, uniform, and stable). Nor does the PVPA require a description and disclosure as extensive as those required under § 101. The PVPA requires a "description of the variety *143 setting forth its distinctiveness, uniformity and stability and a description of the genealogy and breeding procedure, when known." 7 U.S. C. § 2422(2). It also requires a deposit of seed in a public depository, § 2422(4), but neither the statute nor the applicable regulation mandates that such material be accessible to the general public during the term of the PVP certificate. See 7 CFR § 97.6 (2001). Because of the more stringent requirements, utility patent holders receive greater rights of exclusion than holders of a PVP certificate. Most notably, there are no exemptions for research or saving seed under a utility patent. Additionally, although Congress increased the level of protection under the PVPA in 1994, a PVP certificate still does not grant the full range of protections afforded by a utility patent. For instance, a utility patent on an inbred plant line protects that line as well as all hybrids produced by crossing that inbred with another plant line. Similarly, the PVPA now protects "any variety whose production requires the repeated use of a protected variety." 7 U.S. C. § 2541(c)(3). Thus, one cannot use a protected plant variety to produce a hybrid for commercial sale. PVPA protection still falls short of a utility patent, however, because a breeder can use a plant that is protected by a PVP certificate to "develop" a new inbred line while he cannot use a plant patented under § 101 for such a purpose. See 7 U.S. C. § 2541(a)(4) (infringement includes "use [of] the variety in producing (as distinguished from developing) a hybrid or different variety therefrom"). See also H. R. Rep. No. 91-1605, p. 11 (1970); 1 D. Chisum, Patents § 1.05[2][d][i], p. 549 (2001). For all of these reasons, it is clear that there is no "positive repugnancy" between the issuance of utility patents for plants and PVP coverage for plants. Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). Nor can it be said that the two statutes "cannot mutually coexist." Ibid. Indeed, "when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention *144 to the contrary, to regard each as effective." Morton, supra, at 551. Here we can plainly regard each statute as effective because of its different requirements and protections. The plain meaning of § 101, as interpreted by this Court in Chakrabarty, clearly includes plants within its subject matter. The PPA and the PVPA are not to the contrary and can be read alongside § 101 in protecting plants. 3 Petitioners also suggest that even when statutes overlap and purport to protect the same commercially valuable attribute of a thing, such "dual protection" cannot exist. Brief for Petitioners 44-45. Yet this Court has not hesitated to give effect to two statutes that overlap, so long as each reaches some distinct cases. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) (statutes that overlap "do not pose an either-or proposition" where each confers jurisdiction over cases that the other does not reach). Here, while utility patents and PVP certificates do contain some similar protections, as discussed above, the overlap is only partial. Moreover, this Court has allowed dual protection in other intellectual property cases. "Certainly the patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention. In this respect the two systems [trade secret protection and patents] are not and never would be in conflict." Kewanee Oil, supra, at 484; see also Mazer v. Stein, 347 U.S. 201, 217 (1954) (the patentability of an object does not preclude the copyright of that object as a work of art). In this case, many plant varieties that are unable to satisfy the stringent requirements of § 101 might still qualify for the lesser protections afforded by the PVPA. III We also note that the PTO has assigned utility patents for plants for at least 16 years and there has been no indication *145 from either Congress or agencies with expertise that such coverage is inconsistent with the PVPA or the PPA. The Board of Patent Appeals and Interferences, which has specific expertise in issues of patent law, relied heavily on this Court's decision in Chakrabarty when it interpreted the subject matter of § 101 to include plants. In re Hibberd, 227 U.S.P.Q. (BNA) 443 (1985). This highly visible decision has led to the issuance of some 1,800 utility patents for plants. Moreover, the PTO, which administers § 101 as well as the PPA, recognizes and regularly issues utility patents for plants. In addition, the Department of Agriculture's Plant Variety Protection Office acknowledges the existence of utility patents for plants. In the face of these developments, Congress has not only failed to pass legislation indicating that it disagrees with the PTO's interpretation of § 101; it has even recognized the availability of utility patents for plants. In a 1999 amendment to 35 U.S. C. § 119, which concerns the right of priority for patent rights, Congress provided: "Applications for plant breeder's rights filed in a WTO [World Trade Organization] member country . . . shall have the same effect for the purpose of the right of priority . . . as applications for patents, subject to the same conditions and requirements of this section as apply to applications for patents." 35 U.S. C. § 119(f) (1994 ed., Supp. V). Crucially, § 119(f) is part of the general provisions of Title 35, not the specific chapter of the PPA, which suggests a recognition on the part of Congress that plants are patentable under § 101. IV For these reasons, we hold that newly developed plant breeds fall within the terms of § 101, and that neither the PPA nor the PVPA limits the scope of § 101's coverage. As in Chakrabarty, we decline to narrow the reach of § 101 where Congress has given us no indication that it intends *146 this result. 447 U.S., at 315-316. Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered. Justice O'Connor took no part in the consideration or decision of this case.

This case presents the question whether utility s may be issued for plants under 35 U.S. C. 101 (1994 ed.), or whether the Plant Variety Protection Act, as amended, 7 U.S. C. 2321 et seq., and the Plant Patent Act of 1930, 35 U.S. C. 161-164 (1994 ed. and Supp. V), are the exclusive means of obtaining a federal statutory right to exclude others from reproducing, selling, or using plants or plant varieties. We hold that utility s may be issued for plants. I The United States Patent and Trademark Office (PTO) has issued some 1,800 utility s for plants, plant parts, and seeds pursuant to 35 U.S. C. 101. Seventeen of these s are held by respondent Pioneer Hi-Bred International, Inc. (Pioneer). Pioneer's s cover the manufacture, use, sale, and offer for sale of the company's inbred and hybrid corn seed products. A for an inbred corn line protects both the seeds and plants of the inbred line and the hybrids produced by crossing the protected inbred line with another corn line. See, e. g. U. S. Patent No. 5,506,367, col. 3, App. 42. A hybrid plant protects the plant, its seeds, variants, mutants, and trivial modifications of the hybrid. See U. S. Patent No. 5,491,295, cols. 2-3, Pedigree inbred corn plants are developed by crossing corn plants with desirable characteristics and then inbreeding the resulting plants for several generations until the resulting plant line is homogenous. Inbreds are often weak *128 and have a low yield; their value lies primarily in their use for making hybrids. See, e. g., U. S. Patent No. 5,506,367, col. 6, Hybrid seeds are produced by crossing two inbred corn plants and are especially valuable because they produce strong and vibrant hybrid plants with selected highly desirable characteristics. For instance, Pioneer's hybrid corn plant 3394 is "characterized by superior yield for maturity, excellent seedling vigor, very good roots and stalks, and exceptional stay green." U. S. Patent No. 5,491,295, cols. 2-3, Hybrid plants, however, generally do not reproduce true-to-type, i. e., seeds produced by a hybrid plant do not reliably yield plants with the same hybrid characteristics. Thus, a farmer who wishes to continue growing hybrid plants generally needs to buy more hybrid seed. Pioneer sells its ed hybrid seeds under a limited label license that provides: "License is granted solely to produce grain and/or forage." The license "does not extend to the use of seed from such crop or the progeny thereof for propagation or seed multiplication." It strictly prohibits "the use of such seed or the progeny thereof for propagation or seed multiplication or for production or development of a hybrid or different variety of seed." Petitioner J. E. M. Ag Supply, Inc., doing business as Farm Advantage, Inc., purchased ed hybrid seeds from Pioneer in bags bearing this license agreement. Although not a licensed sales representative of Pioneer, Farm Advantage resold these bags. Pioneer subsequently brought a complaint for infringement against Farm Advantage and several other corporations and residents of the State of Iowa who are distributors and customers for Farm Advantage (referred to collectively as Farm Advantage or petitioners). Pioneer alleged that Farm Advantage has "for a long-time *129 past been and still [is] infringing one or more [Pioneer s] by making, using, selling, or offering for sale corn seed of the hybrids in infringement of these s-in-suit." Farm Advantage answered with a general denial of infringement and entered a counterclaim of invalidity, arguing that s that purport to confer protection for corn plants are invalid because sexually reproducing plants are not able subject matter within the scope of 35 U.S. C. 101 (1994 ed.). App. 12-13, 17. Farm Advantage maintained that the Plant Patent Act of 1930 (PPA) and the Plant Variety Protection Act (PVPA) set forth the exclusive statutory means for the protection of plant life because these statutes are more specific than 101, and thus each carves out subject matter from 101 for special treatment.[1] The District Court granted summary judgment to Pioneer. Relying on this Court's broad construction of 101 in the District Court held that the subject matter covered by 101 clearly includes plant life. It further concluded that in enacting the PPA and the PVPA Congress neither expressly nor implicitly removed plants from 101's subject matter. In particular, the District Court noted that Congress did not implicitly repeal 101 by passing the more specific PVPA because there was no irreconcilable conflict between the PVPA and 101. The United States Court of Appeals for the Federal Circuit affirmed the judgment and reasoning of the District *130 Court. We granted certiorari, and now affirm. II The question before us is whether utility s may be issued for plants pursuant to 35 U.S. C. 101 (1994 ed.). The text of 101 provides: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a therefor, subject to the conditions and requirements of this title." As this Court recognized over 20 years ago in the language of 101 is extremely broad. "In choosing such expansive terms as `manufacture' and `composition of matter,' modified by the comprehensive `any,' Congress plainly contemplated that the laws would be given wide scope." This Court thus concluded in that living things were able under 101, and held that a manmade micro-organism fell within the scope of the statute. As Congress recognized, "the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions." In the Court also rejected the argument that Congress must expressly authorize protection for new able subject matter: "It is, of course, correct that Congress, not the courts, must define the limits of ability; but it is equally true that once Congress has spoken it is `the province and duty of the judicial department to say what the law is.' Congress has performed its constitutional role in defining able subject matter in 101; we perform ours in construing the language Congress has employed. *131 The subject-matter provisions of the law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting `the Progress of Science and the useful Arts' with all that means for the social and economic benefits envisioned by Jefferson." Thus, in approaching the question presented by this case, we are mindful that this Court has already spoken clearly concerning the broad scope and applicability of 101.[2] Several years after the PTO Board of Patent Appeals and Interferences held that plants were within the understood meaning of "manufacture" or "composition of matter" and therefore were within the subject matter of 101. In re Hibberd, It has been the unbroken practice of the PTO since that time to confer utility s for plants. To obtain utility protection, a plant breeder must show that the plant he has developed is new, useful, and nonobvious. 35 U.S. C. 101-103 (1994 ed. and Supp. V). In addition, the plant must meet the specifications of 112, which require a written description of the plant and a deposit of seed that is publicly accessible. See 37 CFR 1.801-1.809 Petitioners do not allege that Pioneer's s are invalid for failure to meet the requirements for a utility Nor do they dispute that plants otherwise fall within the terms of 101's broad language that includes "manufacture" *132 or "composition of matter." Rather, petitioners argue that the PPA and the PVPA provide the exclusive means of protecting new varieties of plants, and so awarding utility s for plants upsets the scheme contemplated by Congress. Brief for Petitioners 11. We disagree. Considering the two plant specific statutes in turn, we find that neither forecloses utility coverage for plants. A The 1930 PPA conferred protection to asexually reproduced plants. Significantly, nothing within either the original 1930 text of the statute or its recodified version in 1952 indicates that the PPA's protection for asexually reproduced plants was intended to be exclusive. Plants were first explicitly brought within the scope of protection in 1930 when the PPA included "plants" among the useful things subject to s. Thus the 1930 PPA amended the general utility provision, Rev. Stat. 4886, to provide: "Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant, not known or used by others in this country, before his invention or discovery thereof, may obtain a therefor." Act of May 23, 1930, 1, This provision limited protection to the asexual reproduction of the plant. Asexual reproduction occurs by grafting, budding, or the like, and produces an offspring with a genetic combination identical to that of the single parent—essentially a clone.[3] The PPA also amended Revised Statutes *133 4888 by adding: "No plant shall be declared invalid on the ground of noncompliance with this section if the description is made as complete as is reasonably possible." 2, In 1952, Congress revised the statute and placed the plant s into a separate chapter 15 of Title 35 entitled, "Patents for plants." 35 U.S. C. 161-164.[4] This was merely a housekeeping measure that did nothing to change the substantive rights or requirements for a plant A "plant "[5] continued to provide only the exclusive right to asexually reproduce a protected plant, 163, and the description requirement remained relaxed, 162.[6] Plant s under the PPA thus have very limited coverage and less stringent requirements than 101 utility s. Importantly, chapter 15 nowhere states that plant s are the exclusive means of granting intellectual property protection to plants. Although unable to point to any language that requires, or even suggests, that Congress intended the PPA's protections to be exclusive, petitioners advance three reasons why the PPA should preclude assigning utility s for plants. We find none of these arguments to be persuasive. *134 First, petitioners argue that plants were not covered by the general utility statute prior to 1930. Brief for Petitioners 19 ("If the laws before 1930 allowed s on `plants' then there would have been no reason for Congress to have passed the 1930 PPA"). In advancing this argument, petitioners overlook the state of law and plant breeding at the time of the PPA's enactment. The Court in explained the realities of law and plant breeding at the time the PPA was enacted: "Prior to 1930, two factors were thought to remove plants from protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the law. The second obstacle to protection for plants was the fact that plants were thought not amenable to the `written description' requirement of the law." -312. Congress addressed these concerns with the 1930 PPA, which recognized that the work of a plant breeder was a able invention and relaxed the written description requirement. See 1-2, The PPA thus gave protection to breeders who were previously unable to overcome the obstacles described in This does not mean, however, that prior to 1930 plants could not have fallen within the subject matter of 101. Rather, it illustrates only that in 1930 Congress believed that plants were not able under 101, both because they were living things and because in practice they could not meet the stringent description requirement. Yet these premises were disproved over time. As this Court held in "the relevant distinction" for purposes of 101 is not "between living and inanimate things, but between products of nature, whether living or not, and humanmade inventions." 447 U.S., In addition, advances in biological knowledge and breeding expertise have allowed plant breeders to satisfy 101's demanding description requirement. *135 Whatever Congress may have believed about the state of law and the science of plant breeding in 1930, plants have always had the potential to fall within the general subject matter of 101, which is a dynamic provision designed to encompass new and unforeseen inventions. "A rule that unanticipated inventions are without protection would conflict with the core concept of the law that anticipation undermines ability." Petitioners essentially ask us to deny utility protection for sexually reproduced plants because it was unforeseen in 1930 that such plants could receive protection under 101. Denying protection under 101 simply because such coverage was thought technologically infeasible in 1930, however, would be inconsistent with the forwardlooking perspective of the utility statute. As we noted in "Congress employed broad general language in drafting 101 precisely because [new types of] inventions are often unforeseeable." Second, petitioners maintain that the PPA's limitation to asexually reproduced plants would make no sense if Congress intended 101 to authorize s on plant varieties that were sexually reproduced. But this limitation once again merely reflects the reality of plant breeding in 1930. At that time, the primary means of reproducing bred plants true-to-type was through asexual reproduction. Congress thought that sexual reproduction through seeds was not a stable way to maintain desirable bred characteristics.[7]*136 Thus, it is hardly surprising that plant s would protect only asexual reproduction, since this was the most reliable type of reproduction for preserving the desirable characteristics of breeding. See generally E. Sinnott, Botany Principles and Problems 266-267 (1935); J. Priestley & L. Scott, Introduction to Botany 530 (1938). Furthermore, like other laws protecting intellectual property, the plant provision must be understood in its proper context. Until 1924, farmers received seed from the Government's extensive free seed program that distributed millions of packages of seed annually. See The Plant Patent Act of 1930: A Sociological History of its Creation, 82 J. Pat. & Tm. Off. Soc. 621, 623, 632[8] In 1930, seed companies were not primarily concerned with varietal protection, but were still trying to successfully commodify seeds. There was no need to protect seed breeding because there were few markets for seeds. See Kloppenburg 71 ("Seed companies' first priority was simply to establish a market, and they continued to view the congressional distribution as a principal constraint"). By contrast, nurseries at the time had successfully commercialized asexually reproduced fruit trees and flowers. These plants were regularly copied, draining profits from those who discovered or bred new varieties. Nurseries *137 were the primary subjects of agricultural marketing and so it is not surprising that they were the specific focus of the PPA. See ; Kneen, Patent Plants Enrich Our World, National Geographic 357, 363 (1948). Moreover, seed companies at the time could not point to genuinely new varieties and lacked the scientific knowledge to engage in formal breeding that would increase agricultural productivity. See Kloppenburg 77; ("Absent significant numbers of distinct new varieties being produced by seed companies, variety protection through something like a law would hardly have been considered a business necessity"). In short, there is simply no evidence, let alone the overwhelming evidence needed to establish repeal by implication, see Elec. Industrial that Congress, by specifically protecting asexually reproduced plants through the PPA, intended to preclude utility protection for sexually reproduced plants.[9] Third, petitioners argue that in 1952 Congress would not have moved plants out of the utility provision and into 161 if it had intended 101 to allow for protection of plants. Brief for Petitioners 20. Petitioners again rely on *138 negative inference because they cannot point to any express indication that Congress intended 161 to be the exclusive means of ing plants. But this negative inference simply does not support carving out subject matter that otherwise fits comfortably within the expansive language of 101, especially when 101 can protect different attributes and has more stringent requirements than does 161. This is especially true given that Congress in 1952 did nothing to change the substantive rights or requirements for obtaining a plant Absent a clear intent to the contrary, we are loath to interpret what was essentially a housekeeping measure as an affirmative decision by Congress to deny sexually reproduced plants protection under 101. B By passing the PVPA in 1970, Congress specifically authorized limited -like protection for certain sexually reproduced plants. Petitioners therefore argue that this legislation evidences Congress' intent to deny broader 101 utility protection for such plants. Petitioners' argument, however, is unavailing for two reasons. First, nowhere does the PVPA purport to provide the exclusive statutory means of protecting sexually reproduced plants. Second, the PVPA and 101 can easily be reconciled. Because it is harder to qualify for a utility than for a Plant Variety Protection (PVP) certificate, it only makes sense that utility s would confer a greater scope of protection. 1 The PVPA provides plant variety protection for: "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety" 7 U.S. C. 2402(a). *139 Infringement of plant variety protection occurs, inter alia, if someone sells or markets the protected variety, sexually multiplies the variety as a step in marketing, uses the variety in producing a hybrid, or dispenses the variety without notice that the variety is protected.[10] Since the 1994 amendments, the PVPA also protects "any variety that is essentially derived from a protected variety," 2541(c)(1), and "any variety whose production requires the *140 repeated use of a protected variety," 2541(c)(3). See Plant Variety Protection Act Amendments of 1994, 9, Practically, this means that hybrids created from protected plant varieties are also protected; however, it is not infringement to use a protected variety for the development of a hybrid. See 7 U.S. C. 2541(a)(4).[11] The PVPA also contains exemptions for saving seed and for research. A farmer who legally purchases and plants a protected variety can save the seed from these plants for replanting on his own farm. See 2543 ("[I]t shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person"); see also Asgrow Seed In addition, a protected variety may be used for research. See 7 U.S. C. 2544 ("The use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute an infringement of the protection provided under this chapter"). The utility statute does not contain similar exemptions.[12] Thus, while the PVPA creates a statutory scheme that is comprehensive with respect to its particular protections and subject matter, giving limited protection to plant varieties that are new, distinct, uniform, and stable, 2402(a), nowhere does it restrict the scope of able subject matter under 101. With nothing in the statute to bolster their view that *141 the PVPA provides the exclusive means for protecting sexually reproducing plants, petitioners rely on the legislative history of the PVPA. They argue that this history shows the PVPA was enacted because sexually reproducing plant varieties and their seeds were not and had never been intended by Congress to be included within the classes of things able under Title 35.[13] The PVPA itself, however, contains no statement that PVP certificates were to be the exclusive means of protecting sexually reproducing plants. The relevant statements in the legislative history reveal nothing more than the limited view of plant breeding taken by some Members of Congress who believed that protection was unavailable for sexually reproduced plants. This view stems from a lack of awareness concerning scientific possibilities. Furthermore, at the time the PVPA was enacted, the PTO had already issued numerous utility s for hybrid plant processes. Many of these s, especially since the 1950's, included claims on the products of the ed process, i. e., the hybrid plant itself. See Kloppenburg 264. Such plants were protected as part of a hybrid process and not on their own. Nonetheless, these hybrids still enjoyed protection under 101, which reaffirms that such material was within the scope of 101. 2 Petitioners next argue that the PVPA altered the subjectmatter coverage of 101 by implication. Brief for Petitioners 33-36. Yet "the only permissible justification for a repeal by implication is when the earlier and later statutes *142 are irreconcilable." "The rarity with which [the Court has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue." 516 U. S., at To be sure, there are differences in the requirements for, and coverage of, utility s and PVP certificates issued pursuant to the PVPA. These differences, however, do not present irreconcilable conflicts because the requirements for obtaining a utility under 101 are more stringent than those for obtaining a PVP certificate, and the protections afforded by a utility are greater than those afforded by a PVP certificate. Thus, there is a parallel relationship between the obligations and the level of protection under each statute. It is much more difficult to obtain a utility for a plant than to obtain a PVP certificate because a utility able plant must be new, useful, and nonobvious, 35 U.S. C. 101-103. In addition, to obtain a utility a breeder must describe the plant with sufficient specificity to enable others to "make and use" the invention after the term expires. 112. The disclosure required by the Patent Act is "the quid pro quo of the right to exclude." Kewanee Oil The description requirement for plants includes a deposit of biological material, for example, seeds, and mandates that such material be accessible to the public. See 37 CFR 1.801-1.809 ; see also App. 39 (seed deposits for U. S. Patent No. 5,491,295). By contrast, a plant variety may receive a PVP certificate without a showing of usefulness or nonobviousness. See 7 U.S. C. 2402(a) (requiring that the variety be only new, distinct, uniform, and stable). Nor does the PVPA require a description and disclosure as extensive as those required under 101. The PVPA requires a "description of the variety *143 setting forth its distinctiveness, uniformity and stability and a description of the genealogy and breeding procedure, when known." 7 U.S. C. 2422(2). It also requires a deposit of seed in a public depository, 2422(4), but neither the statute nor the applicable regulation mandates that such material be accessible to the general public during the term of the PVP certificate. See 7 CFR 97.6 Because of the more stringent requirements, utility holders receive greater rights of exclusion than holders of a PVP certificate. Most notably, there are no exemptions for research or saving seed under a utility Additionally, although Congress increased the level of protection under the PVPA in 1994, a PVP certificate still does not grant the full range of protections afforded by a utility For instance, a utility on an inbred plant line protects that line as well as all hybrids produced by crossing that inbred with another plant line. Similarly, the PVPA now protects "any variety whose production requires the repeated use of a protected variety." 7 U.S. C. 2541(c)(3). Thus, one cannot use a protected plant variety to produce a hybrid for commercial sale. PVPA protection still falls short of a utility however, because a breeder can use a plant that is protected by a PVP certificate to "develop" a new inbred line while he cannot use a plant ed under 101 for such a purpose. See 7 U.S. C. 2541(a)(4) (infringement includes "use [of] the variety in producing (as distinguished from developing) a hybrid or different variety therefrom"). See also H. R. Rep. No. 91-1605, p. 11 (1970); 1 D. Chisum, Patents 1.05[2][d][i], p. 549 For all of these reasons, it is clear that there is no "positive repugnancy" between the issuance of utility s for plants and PVP coverage for plants. Nor can it be said that the two statutes "cannot mutually coexist." Indeed, "when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention *144 to the contrary, to regard each as effective." Here we can plainly regard each statute as effective because of its different requirements and protections. The plain meaning of 101, as interpreted by this Court in clearly includes plants within its subject matter. The PPA and the PVPA are not to the contrary and can be read alongside 101 in protecting plants. 3 Petitioners also suggest that even when statutes overlap and purport to protect the same commercially valuable attribute of a thing, such "dual protection" cannot exist. Brief for Petitioners 44-45. Yet this Court has not hesitated to give effect to two statutes that overlap, so long as each reaches some distinct cases. See Connecticut Nat. Here, while utility s and PVP certificates do contain some similar protections, as discussed above, the overlap is only partial. Moreover, this Court has allowed dual protection in other intellectual property cases. "Certainly the policy of encouraging invention is not disturbed by the existence of another form of incentive to invention. In this respect the two systems [trade secret protection and s] are not and never would be in conflict." Kewanee Oil, at ; see also (the ability of an object does not preclude the copyright of that object as a work of art). In this case, many plant varieties that are unable to satisfy the stringent requirements of 101 might still qualify for the lesser protections afforded by the PVPA. III We also note that the PTO has assigned utility s for plants for at least 16 years and there has been no indication *145 from either Congress or agencies with expertise that such coverage is inconsistent with the PVPA or the PPA. The Board of Patent Appeals and Interferences, which has specific expertise in issues of law, relied heavily on this Court's decision in when it interpreted the subject matter of 101 to include plants. In re Hibberd, This highly visible decision has led to the issuance of some 1,800 utility s for plants. Moreover, the PTO, which administers 101 as well as the PPA, recognizes and regularly issues utility s for plants. In addition, the Department of Agriculture's Plant Variety Protection Office acknowledges the existence of utility s for plants. In the face of these developments, Congress has not only failed to pass legislation indicating that it disagrees with the PTO's interpretation of 101; it has even recognized the availability of utility s for plants. In a 1999 amendment to 35 U.S. C. 119, which concerns the right of priority for rights, Congress provided: "Applications for plant breeder's rights filed in a WTO [World Trade Organization] member country shall have the same effect for the purpose of the right of priority as applications for s, subject to the same conditions and requirements of this section as apply to applications for s." 35 U.S. C. 119(f) (1994 ed., Supp. V). Crucially, 119(f) is part of the general provisions of Title 35, not the specific chapter of the PPA, which suggests a recognition on the part of Congress that plants are able under 101. IV For these reasons, we hold that newly developed plant breeds fall within the terms of 101, and that neither the PPA nor the PVPA limits the scope of 101's coverage. As in we decline to narrow the reach of 101 where Congress has given us no indication that it intends *146 this 447 U.S., -316. Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered. Justice O'Connor took no part in the consideration or decision of this case.

Justice Scalia

majority

United States v. Woods

https://www.courtlistener.com/opinion/2644672/united-states-v-woods/

https://www.courtlistener.com/api/rest/v3/clusters/2644672/

2013-005

We decide whether the penalty for tax underpayments attributable to valuation misstatements, 26 U.S. C. §6662(b)(3), is applicable to an underpayment resulting from a basis-inflating transaction subsequently disregarded for lack of economic substance. I. The Facts A This case involves an offsetting-option tax shelter, vari­ ants of which were marketed to high-income taxpayers in the late 1990’s. Tax shelters of this type sought to gener­ ate large paper losses that a taxpayer could use to reduce taxable income. They did so by attempting to give the tax­ payer an artificially high basis in a partnership interest, which enabled the taxpayer to claim a significant tax loss upon disposition of the interest. See IRS Notice 2000–44, 2000–2 Cum. Bull. 255 (describing offsetting-option tax shelters). The particular tax shelter at issue in this case was developed by the now-defunct law firm Jenkens & Gilchrist and marketed by the accounting firm Ernst & 2 UNITED STATES v. WOODS Opinion of the Court Young under the name “Current Options Bring Reward Alternatives,” or COBRA. Respondent Gary Woods and his employer, Billy Joe McCombs, agreed to participate in COBRA to reduce their tax liability for 1999. To that end, in November 1999 they created two general partnerships: one, Tesoro Drive Partners, to produce ordinary losses, and the other, SA Tesoro Investment Partners, to produce capital losses. Over the next two months, acting through their respec­ tive wholly owned, limited liability companies, Woods and McCombs executed a series of transactions. First, they purchased from Deutsche Bank five 30-day currency­ option spreads. Each of these option spreads was a pack­ age consisting of a so-called long option, which entitled Woods and McCombs to receive a sum of money from Deutsche Bank if a certain currency exchange rate ex­ ceeded a certain figure on a certain date, and a so-called short option, which entitled Deutsche Bank to receive a sum of money from Woods and McCombs if the exchange rate for the same currency on the same date exceeded a certain figure so close to the figure triggering the long option that both were likely to be triggered (or not to be triggered) on the fated date. Because the premium paid to Deutsche Bank for purchase of the long option was largely offset by the premium received from Deutsche Bank for sale of the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Specifically, the premiums paid for all five of the spreads’ long options totaled $46 million, and the premiums received for the five spreads’ short options totaled $43.7 million, so the net cost of the spreads was just $2.3 million. Woods and McCombs contributed the spreads to the partnerships along with about $900,000 in cash. The partnerships used the cash to purchase assets—Canadian dollars for the partnership that sought to produce ordinary losses, and Sun Microsystems stock Cite as: 571 U. S. ____ (2013) 3 Opinion of the Court for the partnership that sought to produce capital losses. The partnerships then terminated the five option spreads in exchange for a lump-sum payment from Deutsche Bank. As the tax year drew to a close, Woods and McCombs transferred their interests in the partnerships to two S corporations. One corporation, Tesoro Drive Investors, Inc., received both partners’ interests in Tesoro Drive Partners; the other corporation, SA Tesoro Drive Inves­ tors, Inc., received both partners’ interests in SA Tesoro Investment Partners. Since this left each partnership with only a single partner (the relevant S corporation), the partnerships were liquidated by operation of law, and their assets—the Canadian dollars and Sun Microsystems stock, plus the remaining cash—were deemed distributed to the corporations. The corporations then sold those assets for modest gains of about $2,000 on the Canadian dollars and about $57,000 on the stock. But instead of gains, the corporations reported huge losses: an ordinary loss of more than $13 million on the sale of the Canadian dollars and a capital loss of more than $32 million on the sale of the stock. The losses were allocated between Woods and McCombs as the corporations’ co-owners. The reason the corporations were able to claim such vast losses—the alchemy at the heart of an offsetting-options tax shelter—lay in how Woods and McCombs calculated the tax basis of their interests in the partnerships. Tax basis is the amount used as the cost of an asset when computing how much its owner gained or lost for tax purposes when disposing of it. See J. Downes & J. Good­ man, Dictionary of Finance and Investment Terms 736 (2010). A partner’s tax basis in a partnership interest— called “outside basis” to distinguish it from “inside basis,” the partnership’s basis in its own assets—is tied to the value of any assets the partner contributed to acquire the interest. See 26 U.S. C. §722. Collectively, Woods and 4 UNITED STATES v. WOODS Opinion of the Court McCombs contributed roughly $3.2 million in option spreads and cash to acquire their interests in the two partnerships. But for purposes of computing outside basis, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offset­ ting short component on the theory that it was “too con­ tingent” to count. Brief for Respondent 14. As a result, they claimed a total adjusted outside basis of more than $48 million. Since the basis of property distributed to a partner by a liquidating partnership is equal to the ad­ justed basis of the partner’s interest in the partnership (reduced by any cash distributed with the property), see §732(b), the inflated outside basis figure was carried over to the S corporations’ basis in the Canadian dollars and the stock, enabling the corporations to report enormous losses when those assets were sold. At the end of the day, Woods’ and McCombs’ $3.2 million investment generated tax losses that, if treated as valid, could have shielded more than $45 million of income from taxation. B The Internal Revenue Service, however, did not treat the COBRA-generated losses as valid. Instead, after auditing the partnerships’ tax returns, it issued to each partnership a Notice of Final Partnership Administrative Adjustment, or “FPAA.” In the FPAAs, the IRS deter­ mined that the partnerships had been “formed and availed of solely for purposes of tax avoidance by artificially over­ stating basis in the partnership interests of [the] purported partners.” App. 92, 146. Because the partnerships had “no business purpose other than tax avoidance,” the IRS said, they “lacked economic substance”—or, put more starkly, they were “sham[s]”—so the IRS would disregard them for tax purposes and disallow the related losses. Ibid. And because there were no valid partnerships for tax purposes, the IRS determined that the partners had Cite as: 571 U. S. ____ (2013) 5 Opinion of the Court “not established adjusted bases in their respective part­ nership interests in an amount greater than zero,” id., at 95, ¶7, 149, ¶7 so that any resulting tax underpayments would be subject to a 40-percent penalty for gross valua­ tion misstatements, see 26 U.S. C. §6662(b)(3). Woods, as the tax-matters partner for both partner­ ships, sought judicial review of the FPAAs pursuant to §6226(a). The District Court held that the partner- ships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Govern­ ment appealed the decision on the penalty to the Court of Appeals for the Fifth Circuit. While the appeal was pend­ ing, the Fifth Circuit held in a similar case that, under Circuit precedent, the valuation-misstatement penalty does not apply when the relevant transaction is disregarded for lacking economic substance. Bemont Invs., LLC v. United States, 679 F.3d 339, 347–348 (2012). In a concur­ rence joined by the other members of the panel, Judge Prado acknowledged that this rule was binding Circuit law but suggested that it was mistaken. See id., at 351– 355. A different panel subsequently affirmed the District Court’s decision in this case in a one-paragraph opinion, declaring the issue “well settled.” 471 Fed. Appx. 320 (per curiam), reh’g denied (2012).1 We granted certiorari to resolve a Circuit split over whether the valuation-misstatement penalty is applicable in these circumstances. 569 U. S. ___ (2013). See Bemont, supra, at 354–355 (Prado, J., concurring) (recognizing “near-unanimous opposition” to the Fifth Circuit’s rule). Because two Courts of Appeals have held that District Courts lacked jurisdiction to consider the valuation­ —————— 1 The District Court held that the partnerships did not have to be “honored as legitimate for tax purposes” because they did not possess “ ‘economic substance.’ ” App. to Pet. for Cert. 19a. Woods did not appeal the District Court’s application of the economic-substance doctrine, so we express no view on it. 6 UNITED STATES v. WOODS Opinion of the Court misstatement penalty in similar circumstances, see Jade Trading, LLC v. United States, 598 F.3d 1372, 1380 (CA Fed. 2010); Petaluma FX Partners, LLC v. Commissioner, 591 F.3d 649, 655–656 (CADC 2010), we ordered briefing on that question as well. II. District-Court Jurisdiction A We begin with a brief explanation of the statutory scheme for dealing with partnership-related tax matters. A partnership does not pay federal income taxes; instead, its taxable income and losses pass through to the partners. 26 U.S. C. §701. A partnership must report its tax items on an information return, §6031(a), and the partners must report their distributive shares of the partnership’s tax items on their own individual returns, §§702, 704. Before 1982, the IRS had no way of correcting errors on a partnership’s return in a single, unified proceeding. Instead, tax matters pertaining to all the members of a partnership were dealt with just like tax matters pertain­ ing only to a single taxpayer: through deficiency proceed­ ings at the individual-taxpayer level. See generally §§6211–6216 (2006 ed. and Supp. V). Deficiency proceed­ ings require the IRS to issue a separate notice of deficien­ cy to each taxpayer, §6212(a) (2006 ed.), who can file a petition in the Tax Court disputing the alleged deficiency before paying it, §6213(a). Having to use deficiency pro­ ceedings for partnership-related tax matters led to du­ plicative proceedings and the potential for inconsistent treatment of partners in the same partnership. Congress addressed those difficulties by enacting the Tax Treatment of Partnership Items Act of 1982, as Title IV of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). 96 Stat. 648 (codified as amended at 26 U.S. C. §§6221–6232 (2006 ed. and Supp. V)). Under TEFRA, partnership-related tax matters are Cite as: 571 U. S. ____ (2013) 7 Opinion of the Court addressed in two stages. First, the IRS must initiate proceedings at the partnership level to adjust “partnership items,” those relevant to the partnership as a whole. §§6221, 6231(a)(3). It must issue an FPAA notifying the partners of any adjustments to partnership items, §6223(a)(2), and the partners may seek judicial review of those adjustments, §6226(a)–(b). Once the adjustments to partnership items have become final, the IRS may under­ take further proceedings at the partner level to make any resulting “computational adjustments” in the tax liability of the individual partners. §6231(a)(6). Most computa­ tional adjustments may be directly assessed against the partners, bypassing deficiency proceedings and permitting the partners to challenge the assessments only in post­ payment refund actions. §6230(a)(1), (c). Deficiency proceedings are still required, however, for certain com­ putational adjustments that are attributable to “affected items,” that is, items that are affected by (but are not themselves) partnership items. §§6230(a)(2)(A)(i), 6231(a)(5). B Under the TEFRA framework, a court in a partnership­ level proceeding like this one has jurisdiction to determine not just partnership items, but also “the applicability of any penalty . . . which relates to an adjustment to a part­ nership item.” §6226(f). As both sides agree, a determina­ tion that a partnership lacks economic substance is an adjustment to a partnership item. Thus, the jurisdictional question here boils down to whether the valuation­ misstatement penalty “relates to” the determination that the partnerships Woods and McCombs created were shams. The Government’s theory of why the penalty was trig­ gered is based on a straightforward relationship between the economic-substance determination and the penalty. In 8 UNITED STATES v. WOODS Opinion of the Court the Government’s view, there can be no outside basis in a sham partnership (which, for tax purposes, does not exist), so any partner who underpaid his individual taxes by declaring an outside basis greater than zero committed a valuation misstatement. In other words, the penalty flows logically and inevitably from the economic-substance determination. Woods, however, argues that because outside basis is not a partnership item, but an affected item, a penalty that would rest on a misstatement of outside basis cannot be considered at the partnership level. He maintains, in short, that a penalty does not relate to a partnership-item adjustment if it “requires a partner-level determination,” regardless of “whether or not the penalty has a connection to a partnership item.” Brief for Respondent 27. Because §6226(f)’s “relates to” language is “essentially indeterminate,” we must resolve this dispute by looking to “the structure of [TEFRA] and its other provisions.” Mar- acich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) (internal quotation marks and brackets omitted). That inquiry makes clear that the District Court’s jurisdiction is not as narrow as Woods contends. Prohibiting courts in partnership-level proceedings from considering the ap­ plicability of penalties that require partner-level inquiries would be inconsistent with the nature of the “applicabil­ ity” determination that TEFRA requires. Under TEFRA’s two-stage structure, penalties for tax underpayment must be imposed at the partner level, because partnerships themselves pay no taxes. And im­ posing a penalty always requires some determinations that can be made only at the partner level. Even where a partnership’s return contains significant errors, a partner may not have carried over those errors to his own return; or if he did, the errors may not have caused him to under­ pay his taxes by a large enough amount to trigger the penalty; or if they did, the partner may nonetheless have Cite as: 571 U. S. ____ (2013) 9 Opinion of the Court acted in good faith with reasonable cause, which is a bar to the imposition of many penalties, see §6664(c)(1). None of those issues can be conclusively determined at the partnership level. Yet notwithstanding that every pen­ alty must be imposed in partner-level proceedings after partner-level determinations, TEFRA provides that the applicability of some penalties must be determined at the partnership level. The applicability determination is therefore inherently provisional; it is always contingent upon determinations that the court in a partnership-level proceeding does not have jurisdiction to make. Barring partnership-level courts from considering the applicability of penalties that cannot be imposed without partner-level inquiries would render TEFRA’s authorization to consider some penalties at the partnership level meaningless. Other provisions of TEFRA confirm that conclusion. One requires the IRS to use deficiency proceedings for computational adjustments that rest on “affected items which require partner level determinations (other than penalties . . . that relate to adjustments to partnership items).” §6230(a)(2)(A)(i). Another states that while a partnership-level determination “concerning the applica­ bility of any penalty . . . which relates to an adjustment to a partnership item” is “conclusive” in a subsequent re­ fund action, that does not prevent the partner from “as­ sert[ing] any partner level defenses that may apply.” §6230(c)(4). Both these provisions assume that a penalty can relate to a partnership-item adjustment even if the penalty cannot be imposed without additional, partner-level determinations. These considerations lead us to reject Woods’ interpreta­ tion of §6226(f). We hold that TEFRA gives courts in partnership-level proceedings jurisdiction to determine the applicability of any penalty that could result from an adjustment to a partnership item, even if imposing the penalty would also require determining affected or non­ 10 UNITED STATES v. WOODS Opinion of the Court partnership items such as outside basis. The partnership­ level applicability determination, we stress, is provisional: the court may decide only whether adjustments properly made at the partnership level have the potential to trigger the penalty. Each partner remains free to raise, in subse­ quent, partner-level proceedings, any reasons why the penalty may not be imposed on him specifically. Applying the foregoing principles to this case, we con­ clude that the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty— to determine, that is, whether the partnerships’ lack of economic substance (which all agree was properly decided at the partnership level) could justify imposing a valua­ tion-misstatement penalty on the partners. When making that determination, the District Court was obliged to consider Woods’ arguments that the economic-substance determination was categorically incapable of triggering the penalty. Deferring consideration of those arguments until partner-level proceedings would replicate the precise evil that TEFRA sets out to remedy: duplicative proceed­ ings, potentially leading to inconsistent results, on a ques­ tion that applies equally to all of the partners. To be sure, the District Court could not make a formal ad­ justment of any partner’s outside basis in this partnership­ level proceeding. See Petaluma, 591 F.3d, at 655. But it nonetheless could determine whether the adjustments it did make, including the economic-substance deter­ mination, had the potential to trigger a penalty; and in doing so, it was not required to shut its eyes to the legal impossibility of any partner’s possessing an outside basis greater than zero in a partnership that, for tax purposes, did not exist. Each partner’s outside basis still must be adjusted at the partner level before the penalty can be imposed, but that poses no obstacle to a partnership-level court’s provisional consideration of whether the economic­ substance determination is legally capable of triggering Cite as: 571 U. S. ____ (2013) 11 Opinion of the Court the penalty.2 III. Applicability of Valuation-Misstatement Penalty A Taxpayers who underpay their taxes due to a “valuation misstatement” may incur an accuracy-related penalty. A 20-percent penalty applies to “the portion of any under­ payment which is attributable to . . . [a]ny substantial valuation misstatement under chapter 1.” 26 U.S. C. §6662(a), (b)(3). Under the version of the penalty statute in effect when the transactions at issue here occurred, “there is a substantial valuation misstatement under chapter 1 if . . . the value of any property (or the ad­ justed basis of any property) claimed on any return of tax imposed by chapter 1 is 200 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be).” §6662(e)(1)(A) (2000 ed.). If the reported value or adjusted basis exceeds the correct —————— 2 Some amici warn that our holding bodes an odd procedural result: The IRS will be able to assess the 40-percent penalty directly, but it will have to use deficiency proceedings to assess the tax underpayment upon which the penalty is imposed. See Brief for New Millennium Trading, LLC, et al. as Amici Curiae 12–13. That criticism assumes that the underpayment would not be exempt from deficiency proceed­ ings because it would rest on outside basis, an “affected ite[m] . . . other than [a] penalt[y],” 26 U.S. C. §6230(a)(2)(A)(i). We need not resolve that question today, but we do not think amici’s answer necessarily follows. Even an underpayment attributable to an affected item is exempt so long as the affected item does not “require partner level determinations,” ibid.; see Bush v. United States, 655 F.3d 1323, 1330, 1333–1334 (CA Fed. 2011) (en banc); and it is not readily apparent why additional partner-level determinations would be required before adjusting outside basis in a sham partnership. Cf. Petaluma FX Partners, LLC v. Commissioner, 591 F.3d 649, 655 (CADC 2010) (“If disregarding a partnership leads ineluctably to the conclusion that its partners have no outside basis, that should be just as obvious in partner-level proceedings as it is in partnership-level proceedings”). 12 UNITED STATES v. WOODS Opinion of the Court amount by at least 400 percent, the valuation misstate­ ment is considered not merely substantial, but “gross,” and the penalty increases to 40 percent. §6662(h).3 The penalty’s plain language makes it applicable here. As we have explained, the COBRA transactions were designed to generate losses by enabling the partners to claim a high outside basis in the partnerships. But once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim an outside basis greater than zero. Accordingly, if a partner used an out­ side basis figure greater than zero to claim losses on his tax return, and if deducting those losses caused the part­ ner to underpay his taxes, then the resulting underpay­ ment would be “attributable to” the partner’s having claimed an “adjusted basis” in the partnerships that ex­ ceeded “the correct amount of such . . . adjusted basis.” §6662(e)(1)(A). An IRS regulation provides that when an asset’s true value or adjusted basis is zero, “[t]he value or adjusted basis claimed . . . is considered to be 400 percent or more of the correct amount,” so that the resulting valuation misstatement is automatically deemed gross and subject to the 40-percent penalty. Treas. Reg. §1.6662–5(g), 26 CFR §1.6662–5(g) (2013).4 B Against this straightforward application of the statute, —————— 3 Congress has since lowered the thresholds for substantial and gross misstatements to 150 percent and 200 percent, respectively. See Pension Protection Act of 2006, §1219(a)(1)–(2), 120 Stat. 1083. 4 An amicus suggests that this regulation is in tension with the math­ ematical rule forbidding division by zero. See Brief for Prof. Amandeep S. Grewal as Amicus Curiae 20, n. 7; cf. Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39, 41–42 (CADC 2000) (discussing “problems posed by applying [a] 100% increase standard to a baseline of zero”). Woods has not challenged the regulation before this Court, so we assume its validity for purposes of deciding this case. Cite as: 571 U. S. ____ (2013) 13 Opinion of the Court Woods’ primary argument is that the economic-substance determination did not result in a “valuation misstate­ ment.” He asserts that the statutory terms “value” and “valuation” connote “a factual—rather than legal— concept,” and that the penalty therefore applies only to factual misrepresentations about an asset’s worth or cost, not to misrepresentations that rest on legal errors (like the use of a sham partnership). Brief for Respondent 35. We are not convinced. To begin, we doubt that “value” is limited to factual issues and excludes threshold legal determinations. Cf. Powers v. Commissioner, 312 U.S. 259, 260 (1941) (“[W]hat criterion should be employed for determining the ‘value’ of the gifts is a question of law”); Chapman Glen Ltd. v. Commissioner, 140 T.C. No. 15, 2013 WL2319282, *17 (2013) (“[T]hree approaches are used to determine the fair market value of property,” and “which approach to apply in a case is a question of law”). But even if “value” were limited to factual matters, the statute refers to “value” or “adjusted basis,” and there is no justification for extending that limitation to the latter term, which plainly incorporates legal inquiries. An as­ set’s “basis” is simply its cost, 26 U.S. C. §1012(a) (2006 ed., Supp. V), but calculating its “adjusted basis” requires the application of a host of legal rules, see §§1011(a) (2006 ed.), 1016 (2006 ed. and Supp. V), including specialized rules for calculating the adjusted basis of a partner’s interest in a partnership, see §705 (2006 ed.). The statute contains no indication that the misapplication of one of those legal rules cannot trigger the penalty. Were we to hold otherwise, we would read the word “adjusted” out of the statute. To overcome the plain meaning of “adjusted basis,” Woods asks us to interpret the parentheses in the statutory phrase “the value of any property (or the adjusted basis of any property)” as a signal that “adjusted basis” is merely explanatory or illustrative and has no meaning inde­ 14 UNITED STATES v. WOODS Opinion of the Court pendent of “value.” The parentheses cannot bear that much weight, given the compelling textual evidence to the contrary. For one thing, the terms reappear later in the same sentence sans parentheses—in the phrase “such valuation or adjusted basis.” Moreover, the operative terms are connected by the conjunction “or.” While that can sometimes introduce an appositive—a word or phrase that is synonymous with what precedes it (“Vienna or Wien,” “Batman or the Caped Crusader”)—its ordinary use is almost always disjunctive, that is, the words it connects are to “be given separate meanings.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). And, of course, there is no way that “adjusted basis” could be regarded as synonymous with “value.” Finally, the terms’ second disjunctive appearance is followed by “as the case may be,” which eliminates any lingering doubt that the preceding items are alternatives. See New Oxford American Dic­ tionary 269 (3d ed. 2010). The parentheses thus do not justify “rob[bing] the term [‘adjusted basis’] of its inde­ pendent and ordinary significance.” Reiter, supra, at 338–339. Our holding that the valuation-misstatement penalty encompasses legal as well as factual misstatements of adjusted basis does not make superfluous the new penalty that Congress enacted in 2010 for transactions lacking in economic substance, see §1409(b)(2), 124 Stat. 1068–1069 (codified at 26 U.S. C. §6662(b)(6) (2006 ed., Supp. V)). The new penalty covers all sham transactions, including those that do not cause the taxpayer to misrepresent value or basis; thus, it can apply in situations where the valuation­ misstatement penalty cannot. And the fact that both penalties are potentially applicable to sham transactions resulting in valuation misstatements is not problematic. Congress recognized that penalties might overlap in a given case, and it addressed that possibility by providing that a taxpayer generally cannot receive more than one Cite as: 571 U. S. ____ (2013) 15 Opinion of the Court accuracy-related penalty for the same underpayment. See §6662(b) (2006 ed. and Supp. V).5 C In the alternative, Woods argues that any underpay­ ment of tax in this case would be “attributable,” not to the misstatements of outside basis, but rather to the deter­ mination that the partnerships were shams—which he describes as an “independent legal ground.” Brief for Respondent 46. That is the rationale that the Fifth and Ninth Circuits have adopted for refusing to apply the valuation-misstatement penalty in cases like this, although both courts have voiced doubts about it. See Bemont, 679 F.3d, at 347–348; id., at 351–355 (Prado, J., concurring); Keller v. Commissioner, 556 F.3d 1056, 1060– 1061 (CA9 2009). We reject the argument’s premise: The economic­ substance determination and the basis misstatement are not “independent” of one another. This is not a case where a valuation misstatement is a mere side effect of a sham transaction. Rather, the overstatement of outside basis was the linchpin of the COBRA tax shelter and the mech­ anism by which Woods and McCombs sought to reduce their taxable income. As Judge Prado observed, in this type of tax shelter, “the basis misstatement and the trans­ action’s lack of economic substance are inextricably inter­ twined,” so “attributing the tax underpayment only to the artificiality of the transaction and not to the basis over­ —————— 5 We do not consider Woods’ arguments based on legislative history. Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous. Mohamad v. Palestinian Authority, 566 U. S. ___, ___ (2012) (slip op., at 8). Nor do we evaluate the claim that application of the penalty to legal rather than factual misrepresentations is a recent innovation. An agency’s failure to assert a power, even if prolonged, cannot alter the plain meaning of a statute. 16 UNITED STATES v. WOODS Opinion of the Court valuation is making a false distinction.” Bemont, supra, at 354 (concurring opinion). In short, the partners underpaid their taxes because they overstated their outside basis, and they overstated their outside basis because the part­ nerships were shams. We therefore have no difficulty concluding that any underpayment resulting from the COBRA tax shelter is attributable to the partners’ misrep­ resentation of outside basis (a valuation misstatement). Woods contends, however, that a document known as the “Blue Book” compels a different result. See General Explanation of the Economic Recovery Tax Act of 1981 (Pub. L. 97–34), 97 Cong., 1st Sess., 333, and n. 2 (Jt. Comm. Print 1980). Blue Books are prepared by the staff of the Joint Committee on Taxation as commentaries on recently passed tax laws. They are “written after passage of the legislation and therefore d[o] not inform the deci­ sions of the members of Congress who vot[e] in favor of the [law].” Flood v. United States, 33 F.3d 1174, 1178 (CA9 1994). We have held that such “[p]ost-enactment legisla­ tive history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 17–18); accord, Federal Nat. Mortgage Assn. v. United States, 379 F.3d 1303, 1309 (CA Fed. 2004) (dismissing Blue Book as “a post-enactment explanation”). While we have relied on similar documents in the past, see FPC v. Memphis Light, Gas & Water Div., 411 U.S. 458, 471–472 (1973), our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade. It concerns a situation quite different from the one we confront: two separate, non­ overlapping underpayments, only one of which is attribut­ able to a valuation misstatement. Cite as: 571 U. S. ____ (2013) 17 Opinion of the Court * * * The District Court had jurisdiction in this partnership­ level proceeding to determine the applicability of the valuation-misstatement penalty, and the penalty is appli­ cable to tax underpayments resulting from the partners’ participation in the COBRA tax shelter. The judgment of the Court of Appeals is reversed. It is so ordered

We decide whether the penalty for tax underpayments attributable to valuation misstatements, 26 U.S. C. is applicable to an underpayment resulting from a basis-inflating transaction subsequently disregarded for lack of economic substance. I. The Facts A This case involves an offsetting-option tax shelter, vari­ ants of which were marketed to high-income taxpayers in the late 1990’s. Tax shelters of this type sought to gener­ ate large paper losses that a taxpayer could use to reduce taxable income. They did so by attempting to give the tax­ payer an artificially high basis in a partnership interest, which enabled the taxpayer to claim a significant tax loss upon disposition of the interest. See IRS Notice –44, –2 Cum. Bull. 255 (describing offsetting-option tax shelters). The particular tax shelter at issue in this case was developed by the now-defunct law firm Jenkens & Gilchrist and marketed by the accounting firm Ernst & 2 UNITED STATES v. WOODS Opinion of the Court Young under the name “Current Options Bring Reward Alternatives,” or COBRA. Respondent Gary Woods and his employer, Billy Joe McCombs, agreed to participate in COBRA to reduce their tax liability for 1999. To that end, in November 1999 they created two general partnerships: one, Tesoro Drive Partners, to produce ordinary losses, and the other, SA Tesoro Investment Partners, to produce capital losses. Over the next two months, acting through their respec­ tive wholly owned, limited liability companies, Woods and McCombs executed a series of transactions. First, they purchased from Deutsche Bank five 30-day currency­ option spreads. Each of these option spreads was a pack­ age consisting of a so-called long option, which entitled Woods and McCombs to receive a sum of money from Deutsche Bank if a certain currency exchange rate ex­ ceeded a certain figure on a certain date, and a so-called short option, which entitled Deutsche Bank to receive a sum of money from Woods and McCombs if the exchange rate for the same currency on the same date exceeded a certain figure so close to the figure triggering the long option that both were likely to be triggered (or not to be triggered) on the fated date. Because the premium paid to Deutsche Bank for purchase of the long option was largely offset by the premium received from Deutsche Bank for sale of the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Specifically, the premiums paid for all five of the spreads’ long options totaled $46 million, and the premiums received for the five spreads’ short options totaled $43.7 million, so the net cost of the spreads was just $2.3 million. Woods and McCombs contributed the spreads to the partnerships along with about $900,000 in cash. The partnerships used the cash to purchase assets—Canadian dollars for the partnership that sought to produce ordinary losses, and Sun Microsystems stock Cite as: 571 U. S. (2013) 3 Opinion of the Court for the partnership that sought to produce capital losses. The partnerships then terminated the five option spreads in exchange for a lump-sum payment from Deutsche Bank. As the tax year drew to a close, Woods and McCombs transferred their interests in the partnerships to two S corporations. One corporation, Tesoro Drive Investors, Inc., received both partners’ interests in Tesoro Drive Partners; the other corporation, SA Tesoro Drive Inves­ tors, Inc., received both partners’ interests in SA Tesoro Investment Partners. Since this left each partnership with only a single partner (the relevant S corporation), the partnerships were liquidated by operation of law, and their assets—the Canadian dollars and Sun Microsystems stock, plus the remaining cash—were deemed distributed to the corporations. The corporations then sold those assets for modest gains of about $2,000 on the Canadian dollars and about $57,000 on the stock. But instead of gains, the corporations reported huge losses: an ordinary loss of more than $13 million on the sale of the Canadian dollars and a capital loss of more than $32 million on the sale of the stock. The losses were allocated between Woods and McCombs as the corporations’ co-owners. The reason the corporations were able to claim such vast losses—the alchemy at the heart of an offsetting-options tax shelter—lay in how Woods and McCombs calculated the tax basis of their interests in the partnerships. Tax basis is the amount used as the cost of an asset when computing how much its owner gained or lost for tax purposes when disposing of it. See J. Downes & J. Good­ man, Dictionary of Finance and Investment Terms 736 A partner’s tax basis in a partnership interest— called “outside basis” to distinguish it from “inside basis,” the partnership’s basis in its own assets—is tied to the value of any assets the partner contributed to acquire the interest. See 26 U.S. C. Collectively, Woods and 4 UNITED STATES v. WOODS Opinion of the Court McCombs contributed roughly $3.2 million in option spreads and cash to acquire their interests in the two partnerships. But for purposes of computing outside basis, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offset­ ting short component on the theory that it was “too con­ tingent” to count. Brief for Respondent 14. As a result, they claimed a total adjusted outside basis of more than $48 million. Since the basis of property distributed to a partner by a liquidating partnership is equal to the ad­ justed basis of the partner’s interest in the partnership (reduced by any cash distributed with the property), see the inflated outside basis figure was carried over to the S corporations’ basis in the Canadian dollars and the stock, enabling the corporations to report enormous losses when those assets were sold. At the end of the day, Woods’ and McCombs’ $3.2 million investment generated tax losses that, if treated as valid, could have shielded more than $45 million of income from taxation. B The Internal Revenue Service, however, did not treat the COBRA-generated losses as valid. Instead, after auditing the partnerships’ tax returns, it issued to each partnership a Notice of Final Partnership Administrative Adjustment, or “FPAA.” In the FPAAs, the IRS deter­ mined that the partnerships had been “formed and availed of solely for purposes of tax avoidance by artificially over­ stating basis in the partnership interests of [the] purported partners.” App. 92, 146. Because the partnerships had “no business purpose other than tax avoidance,” the IRS said, they “lacked economic substance”—or, put more starkly, they were “sham[s]”—so the IRS would disregard them for tax purposes and disallow the related losses. And because there were no valid partnerships for tax purposes, the IRS determined that the partners had Cite as: 571 U. S. (2013) 5 Opinion of the Court “not established adjusted bases in their respective part­ nership interests in an amount greater than zero,” at 95, ¶7, 149, ¶7 so that any resulting tax underpayments would be subject to a 40-percent penalty for gross valua­ tion misstatements, see 26 U.S. C. Woods, as the tax-matters partner for both partner­ ships, sought judicial review of the FPAAs pursuant to The District Court held that the partner- ships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Govern­ ment appealed the decision on the penalty to the Court of Appeals for the Fifth Circuit. While the appeal was pend­ ing, the Fifth Circuit held in a similar case that, under Circuit precedent, the valuation-misstatement penalty does not apply when the relevant transaction is disregarded for lacking economic substance. Invs., LLC v. United States, In a concur­ rence joined by the other members of the panel, Judge Prado acknowledged that this rule was binding Circuit law but suggested that it was mistaken. See at 351– 355. A different panel subsequently affirmed the District Court’s decision in this case in a one-paragraph opinion, declaring the issue “well settled.” (per curiam), reh’g denied1 We granted certiorari to resolve a Circuit split over whether the valuation-misstatement penalty is applicable in these circumstances. 569 U. S. (2013). See at 354–355 (Prado, J., concurring) (recognizing “near-unanimous opposition” to the Fifth Circuit’s rule). Because two Courts of Appeals have held that District Courts lacked jurisdiction to consider the valuation­ —————— 1 The District Court held that the partnerships did not have to be “honored as legitimate for tax purposes” because they did not possess “ ‘economic substance.’ ” App. to Pet. for Cert. 19a. Woods did not appeal the District Court’s application of the economic-substance doctrine, so we express no view on it. 6 UNITED STATES v. WOODS Opinion of the Court misstatement penalty in similar circumstances, see Jade Trading, ; FX Partners, we ordered briefing on that question as well. II. District-Court Jurisdiction A We begin with a brief explanation of the statutory scheme for dealing with partnership-related tax matters. A partnership does not pay federal income taxes; instead, its taxable income and losses pass through to the partners. 26 U.S. C. A partnership must report its tax items on an information return, and the partners must report their distributive shares of the partnership’s tax items on their own individual returns, 704. Before 1982, the IRS had no way of correcting errors on a partnership’s return in a single, unified proceeding. Instead, tax matters pertaining to all the members of a partnership were dealt with just like tax matters pertain­ ing only to a single taxpayer: through deficiency proceed­ ings at the individual-taxpayer level. See generally (2006 ed. and Supp. V). Deficiency proceed­ ings require the IRS to issue a separate notice of deficien­ cy to each taxpayer, (2006 ed.), who can file a petition in the Tax Court disputing the alleged deficiency before paying it, Having to use deficiency pro­ ceedings for partnership-related tax matters led to du­ plicative proceedings and the potential for inconsistent treatment of partners in the same partnership. Congress addressed those difficulties by enacting the Tax Treatment of Partnership Items Act of 1982, as Title IV of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). 96 Stat. 648 (codified as amended at 26 U.S. C. (2006 ed. and Supp. V)). Under TEFRA, partnership-related tax matters are Cite as: 571 U. S. (2013) 7 Opinion of the Court addressed in two stages. First, the IRS must initiate proceedings at the partnership level to adjust “partnership items,” those relevant to the partnership as a whole. 6231(a)(3). It must issue an FPAA notifying the partners of any adjustments to partnership items, and the partners may seek judicial review of those adjustments, Once the adjustments to partnership items have become final, the IRS may under­ take further proceedings at the partner level to make any resulting “computational adjustments” in the tax liability of the individual partners. Most computa­ tional adjustments may be directly assessed against the partners, bypassing deficiency proceedings and permitting the partners to challenge the assessments only in post­ payment refund actions. (c). Deficiency proceedings are still required, however, for certain com­ putational adjustments that are attributable to “affected items,” that is, items that are affected by (but are not themselves) partnership items. 6231(a)(5). B Under the TEFRA framework, a court in a partnership­ level proceeding like this one has jurisdiction to determine not just partnership items, but also “the applicability of any penalty which relates to an adjustment to a part­ nership item.” As both sides agree, a determina­ tion that a partnership lacks economic substance is an adjustment to a partnership item. Thus, the jurisdictional question here boils down to whether the valuation­ misstatement penalty “relates to” the determination that the partnerships Woods and McCombs created were shams. The Government’s theory of why the penalty was trig­ gered is based on a straightforward relationship between the economic-substance determination and the penalty. In 8 UNITED STATES v. WOODS Opinion of the Court the Government’s view, there can be no outside basis in a sham partnership (which, for tax purposes, does not exist), so any partner who underpaid his individual taxes by declaring an outside basis greater than zero committed a valuation misstatement. In other words, the penalty flows logically and inevitably from the economic-substance determination. Woods, however, argues that because outside basis is not a partnership item, but an affected item, a penalty that would rest on a misstatement of outside basis cannot be considered at the partnership level. He maintains, in short, that a penalty does not relate to a partnership-item adjustment if it “requires a partner-level determination,” regardless of “whether or not the penalty has a connection to a partnership item.” Brief for Respondent 27. Because “relates to” language is “essentially indeterminate,” we must resolve this dispute by looking to “the structure of [TEFRA] and its other provisions.” Mar- acich v. Spears, 570 U. S. (2013) (slip op., at 9) (internal quotation marks and brackets omitted). That inquiry makes clear that the District Court’s jurisdiction is not as narrow as Woods contends. Prohibiting courts in partnership-level proceedings from considering the ap­ plicability of penalties that require partner-level inquiries would be inconsistent with the nature of the “applicabil­ ity” determination that TEFRA requires. Under TEFRA’s two-stage structure, penalties for tax underpayment must be imposed at the partner level, because partnerships themselves pay no taxes. And im­ posing a penalty always requires some determinations that can be made only at the partner level. Even where a partnership’s return contains significant errors, a partner may not have carried over those errors to his own return; or if he did, the errors may not have caused him to under­ pay his taxes by a large enough amount to trigger the penalty; or if they did, the partner may nonetheless have Cite as: 571 U. S. (2013) 9 Opinion of the Court acted in good faith with reasonable cause, which is a bar to the imposition of many penalties, see None of those issues can be conclusively determined at the partnership level. Yet notwithstanding that every pen­ alty must be imposed in partner-level proceedings after partner-level determinations, TEFRA provides that the applicability of some penalties must be determined at the partnership level. The applicability determination is therefore inherently provisional; it is always contingent upon determinations that the court in a partnership-level proceeding does not have jurisdiction to make. Barring partnership-level courts from considering the applicability of penalties that cannot be imposed without partner-level inquiries would render TEFRA’s authorization to consider some penalties at the partnership level meaningless. Other provisions of TEFRA confirm that conclusion. One requires the IRS to use deficiency proceedings for computational adjustments that rest on “affected items which require partner level determinations (other than penalties that relate to adjustments to partnership items).” Another states that while a partnership-level determination “concerning the applica­ bility of any penalty which relates to an adjustment to a partnership item” is “conclusive” in a subsequent re­ fund action, that does not prevent the partner from “as­ sert[ing] any partner level defenses that may apply.” Both these provisions assume that a penalty can relate to a partnership-item adjustment even if the penalty cannot be imposed without additional, partner-level determinations. These considerations lead us to reject Woods’ interpreta­ tion of We hold that TEFRA gives courts in partnership-level proceedings jurisdiction to determine the applicability of any penalty that could result from an adjustment to a partnership item, even if imposing the penalty would also require determining affected or non­ 10 UNITED STATES v. WOODS Opinion of the Court partnership items such as outside basis. The partnership­ level applicability determination, we stress, is provisional: the court may decide only whether adjustments properly made at the partnership level have the potential to trigger the penalty. Each partner remains free to raise, in subse­ quent, partner-level proceedings, any reasons why the penalty may not be imposed on him specifically. Applying the foregoing principles to this case, we con­ clude that the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty— to determine, that is, whether the partnerships’ lack of economic substance (which all agree was properly decided at the partnership level) could justify imposing a valua­ tion-misstatement penalty on the partners. When making that determination, the District Court was obliged to consider Woods’ arguments that the economic-substance determination was categorically incapable of triggering the penalty. Deferring consideration of those arguments until partner-level proceedings would replicate the precise evil that TEFRA sets out to remedy: duplicative proceed­ ings, potentially leading to inconsistent results, on a ques­ tion that applies equally to all of the partners. To be sure, the District Court could not make a formal ad­ justment of any partner’s outside basis in this partnership­ level proceeding. See But it nonetheless could determine whether the adjustments it did make, including the economic-substance deter­ mination, had the potential to trigger a penalty; and in doing so, it was not required to shut its eyes to the legal impossibility of any partner’s possessing an outside basis greater than zero in a partnership that, for tax purposes, did not exist. Each partner’s outside basis still must be adjusted at the partner level before the penalty can be imposed, but that poses no obstacle to a partnership-level court’s provisional consideration of whether the economic­ substance determination is legally capable of triggering Cite as: 571 U. S. (2013) 11 Opinion of the Court the penalty.2 III. Applicability of Valuation-Misstatement Penalty A Taxpayers who underpay their taxes due to a “valuation misstatement” may incur an accuracy-related penalty. A 20-percent penalty applies to “the portion of any under­ payment which is attributable to [a]ny substantial valuation misstatement under chapter 1.” 26 U.S. C. (b)(3). Under the version of the penalty statute in effect when the transactions at issue here occurred, “there is a substantial valuation misstatement under chapter 1 if the value of any property (or the ad­ justed basis of any property) claimed on any return of tax imposed by chapter 1 is 200 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be).” ( ed.). If the reported value or adjusted basis exceeds the correct —————— 2 Some amici warn that our holding bodes an odd procedural result: The IRS will be able to assess the 40-percent penalty directly, but it will have to use deficiency proceedings to assess the tax underpayment upon which the penalty is imposed. See Brief for New Millennium Trading, LLC, et al. as Amici Curiae 12–13. That criticism assumes that the underpayment would not be exempt from deficiency proceed­ ings because it would rest on outside basis, an “affected ite[m] other than [a] penalt[y],” 26 U.S. C. We need not resolve that question today, but we do not think amici’s answer necessarily follows. Even an underpayment attributable to an affected item is exempt so long as the affected item does not “require partner level determinations,” ibid.; see 1333–1334 (CA Fed. 2011) (en banc); and it is not readily apparent why additional partner-level determinations would be required before adjusting outside basis in a sham partnership. Cf. FX Partners, (“If disregarding a partnership leads ineluctably to the conclusion that its partners have no outside basis, that should be just as obvious in partner-level proceedings as it is in partnership-level proceedings”). 12 UNITED STATES v. WOODS Opinion of the Court amount by at least 400 percent, the valuation misstate­ ment is considered not merely substantial, but “gross,” and the penalty increases to 40 percent. The penalty’s plain language makes it applicable here. As we have explained, the COBRA transactions were designed to generate losses by enabling the partners to claim a high outside basis in the partnerships. But once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim an outside basis greater than zero. Accordingly, if a partner used an out­ side basis figure greater than zero to claim losses on his tax return, and if deducting those losses caused the part­ ner to underpay his taxes, then the resulting underpay­ ment would be “attributable to” the partner’s having claimed an “adjusted basis” in the partnerships that ex­ ceeded “the correct amount of such adjusted basis.” An IRS regulation provides that when an asset’s true value or adjusted basis is zero, “[t]he value or adjusted basis claimed is considered to be 400 percent or more of the correct amount,” so that the resulting valuation misstatement is automatically deemed gross and subject to the 40-percent penalty. –5(g), 26 CFR (2013).4 B Against this straightforward application of the statute, —————— 3 Congress has since lowered the thresholds for substantial and gross misstatements to 150 percent and 200 percent, respectively. See Pension Protection Act of 2006, 4 An amicus suggests that this regulation is in tension with the math­ ematical rule forbidding division by zero. See Brief for Prof. Amandeep S. Grewal as Amicus Curiae 20, n. 7; cf. Lee’s (discussing “problems posed by applying [a] 100% increase standard to a baseline of zero”). Woods has not challenged the regulation before this Court, so we assume its validity for purposes of deciding this case. Cite as: 571 U. S. (2013) 13 Opinion of the Court Woods’ primary argument is that the economic-substance determination did not result in a “valuation misstate­ ment.” He asserts that the statutory terms “value” and “valuation” connote “a factual—rather than legal— concept,” and that the penalty therefore applies only to factual misrepresentations about an asset’s worth or cost, not to misrepresentations that rest on legal errors (like the use of a sham partnership). Brief for Respondent 35. We are not convinced. To begin, we doubt that “value” is limited to factual issues and excludes threshold legal determinations. Cf. Powers v. Commissioner, 312 U.S. 259, 260 (1941) (“[W]hat criterion should be employed for determining the ‘value’ of the gifts is a question of law”); Chapman Glen 2013 WL2319282, *17 (2013) (“[T]hree approaches are used to determine the fair market value of property,” and “which approach to apply in a case is a question of law”). But even if “value” were limited to factual matters, the statute refers to “value” or “adjusted basis,” and there is no justification for extending that limitation to the latter term, which plainly incorporates legal inquiries. An as­ set’s “basis” is simply its cost, 26 U.S. C. (2006 ed., Supp. V), but calculating its “adjusted basis” requires the application of a host of legal rules, see (2006 ed.), 1016 (2006 ed. and Supp. V), including specialized rules for calculating the adjusted basis of a partner’s interest in a partnership, see (2006 ed.). The statute contains no indication that the misapplication of one of those legal rules cannot trigger the penalty. Were we to hold otherwise, we would read the word “adjusted” out of the statute. To overcome the plain meaning of “adjusted basis,” Woods asks us to interpret the parentheses in the statutory phrase “the value of any property (or the adjusted basis of any property)” as a signal that “adjusted basis” is merely explanatory or illustrative and has no meaning inde­ 14 UNITED STATES v. WOODS Opinion of the Court pendent of “value.” The parentheses cannot bear that much weight, given the compelling textual evidence to the contrary. For one thing, the terms reappear later in the same sentence sans parentheses—in the phrase “such valuation or adjusted basis.” Moreover, the operative terms are connected by the conjunction “or.” While that can sometimes introduce an appositive—a word or phrase that is synonymous with what precedes it (“Vienna or Wien,” “Batman or the Caped Crusader”)—its ordinary use is almost always disjunctive, that is, the words it connects are to “be given separate meanings.” v. Sonotone Corp., And, of course, there is no way that “adjusted basis” could be regarded as synonymous with “value.” Finally, the terms’ second disjunctive appearance is followed by “as the case may be,” which eliminates any lingering doubt that the preceding items are alternatives. See New Oxford American Dic­ tionary 269 The parentheses thus do not justify “rob[bing] the term [‘adjusted basis’] of its inde­ pendent and ordinary significance.” at 338–. Our holding that the valuation-misstatement penalty encompasses legal as well as factual misstatements of adjusted basis does not make superfluous the new penalty that Congress enacted in for transactions lacking in economic substance, see –1069 (codified at 26 U.S. C. (2006 ed., Supp. V)). The new penalty covers all sham transactions, including those that do not cause the taxpayer to misrepresent value or basis; thus, it can apply in situations where the valuation­ misstatement penalty cannot. And the fact that both penalties are potentially applicable to sham transactions resulting in valuation misstatements is not problematic. Congress recognized that penalties might overlap in a given case, and it addressed that possibility by providing that a taxpayer generally cannot receive more than one Cite as: 571 U. S. (2013) 15 Opinion of the Court accuracy-related penalty for the same underpayment. See (2006 ed. and Supp. V).5 C In the alternative, Woods argues that any underpay­ ment of tax in this case would be “attributable,” not to the misstatements of outside basis, but rather to the deter­ mination that the partnerships were shams—which he describes as an “independent legal ground.” Brief for Respondent 46. That is the rationale that the Fifth and Ninth Circuits have adopted for refusing to apply the valuation-misstatement penalty in cases like this, although both courts have voiced doubts about it. See 679 F.3d, at ; at 351–355 (Prado, J., concurring); 1060– 1061 (CA9 2009). We reject the argument’s premise: The economic­ substance determination and the basis misstatement are not “independent” of one another. This is not a case where a valuation misstatement is a mere side effect of a sham transaction. Rather, the overstatement of outside basis was the linchpin of the COBRA tax shelter and the mech­ anism by which Woods and McCombs sought to reduce their taxable income. As Judge Prado observed, in this type of tax shelter, “the basis misstatement and the trans­ action’s lack of economic substance are inextricably inter­ twined,” so “attributing the tax underpayment only to the artificiality of the transaction and not to the basis over­ —————— 5 We do not consider Woods’ arguments based on legislative history. Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous. Mohamad v. Palestinian Authority, 566 U. S. (slip op., at 8). Nor do we evaluate the claim that application of the penalty to legal rather than factual misrepresentations is a recent innovation. An agency’s failure to assert a power, even if prolonged, cannot alter the plain meaning of a statute. 16 UNITED STATES v. WOODS Opinion of the Court valuation is making a false distinction.” at 354 (concurring opinion). In short, the partners underpaid their taxes because they overstated their outside basis, and they overstated their outside basis because the part­ nerships were shams. We therefore have no difficulty concluding that any underpayment resulting from the COBRA tax shelter is attributable to the partners’ misrep­ resentation of outside basis (a valuation misstatement). Woods contends, however, that a document known as the “Blue Book” compels a different result. See General Explanation of the Economic Recovery Tax Act of 1981 (Pub. L. 97–34), 97 Cong., 1st Sess., 333, and n. 2 (Jt. Comm. Print 1980). Blue Books are prepared by the staff of the Joint Committee on Taxation as commentaries on recently passed tax laws. They are “written after passage of the legislation and therefore d[o] not inform the deci­ sions of the members of Congress who vot[e] in favor of the [law].” (CA9 1994). We have held that such “[p]ost-enactment legisla­ tive history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U. S. (2011) (slip op., at 17–18); accord, Federal Nat. Mortgage Assn. v. United States, 379 F.3d 1303, 1309 (CA Fed. 2004) (dismissing Blue Book as “a post-enactment explanation”). While we have relied on similar documents in the past, see our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade. It concerns a situation quite different from the one we confront: two separate, non­ overlapping underpayments, only one of which is attribut­ able to a valuation misstatement. Cite as: 571 U. S. (2013) 17 Opinion of the Court * * * The District Court had jurisdiction in this partnership­ level proceeding to determine the applicability of the valuation-misstatement penalty, and the penalty is appli­ cable to tax underpayments resulting from the partners’ participation in the COBRA tax shelter. The judgment of the Court of Appeals is reversed. It is so ordered

Justice Stevens

majority

Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson

https://www.courtlistener.com/opinion/1726/graham-county-soil-and-water-conservation-dist-v-united-states-ex-rel/

https://www.courtlistener.com/api/rest/v3/clusters/1726/

2009-037

Since its enactment during the Civil War, the False Claims Act, 31 U.S. C. §§3729–3733, has authorized both the Attorney General and private qui tam relators to recover from persons who make false or fraudulent claims for payment to the United States. The Act now contains a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain speci fied sources. §3730(e)(4)(A). The question before us is whether the reference to “administrative” reports, audits, and investigations in that provision encompasses disclo sures made in state and local sources as well as federal sources. We hold that it does.1 —————— 1 On March 23, 2010, the President signed into law the Patient Pro tection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119. Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S. C. §3730(e)(4) with new language. The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 948 (1997). Throughout this opinion, we use the present 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court I In 1995 the United States Department of Agriculture (USDA) entered into contracts with two counties in North Carolina authorizing them to perform, or to hire others to perform, cleanup and repair work in areas that had suf fered extensive flooding. The Federal Government agreed to shoulder 75 percent of the contract costs. Respondent Karen T. Wilson was at that time an employee of the Graham County Soil and Conservation District, a special purpose government body that had been delegated partial responsibility for coordinating and performing the reme diation effort. Suspecting possible fraud in connection with this effort, Wilson voiced her concerns to local offi cials in the summer of 1995. She also sent a letter to, and had a meeting with, agents of the USDA. Graham County officials began an investigation. An accounting firm hired by the county performed an audit and, in 1996, issued a report (Audit Report) that identified several potential irregularities in the county’s administra tion of the contracts. Shortly thereafter, the North Caro lina Department of Environment, Health, and Natural Resources issued a report (DEHNR Report) identifying similar problems. The USDA’s Office of Inspector General eventually issued a third report that contained additional findings. In 2001 Wilson filed this action, alleging that petition ers, the Graham County and Cherokee County Soil and Water Conservation Districts and a number of local and federal officials, violated the False Claims Act (FCA) by knowingly submitting false claims for payment pursuant to the 1995 contracts. She further alleged that petitioners retaliated against her for aiding the federal investigation of those false claims. Following this Court’s review of the —————— tense in discussing the statute as it existed at the time this case was argued. Cite as: 559 U. S. ____ (2010) 3 Opinion of the Court statute of limitations applicable to Wilson’s retaliation claim, Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005), the Court of Appeals ordered that that claim be dismissed as time barred. 424 F.3d 437 (CA4 2005). On remand, the District Court subsequently dismissed Wilson’s qui tam action for lack of jurisdiction. App. to Pet. for Cert. 95a– 105a. The court found that Wilson had failed to refute that her action was based upon allegations publicly dis closed in the Audit Report and the DEHNR Report. Id., at 95a–98a. Those reports, the District Court determined, constituted “administrative . . . report[s], . . . audit[s], or investigation[s]” within the meaning of the FCA’s public disclosure bar, 31 U.S. C. §3730(e)(4)(A). The Court of Appeals reversed the judgment of the District Court because the reports had been generated by state and local entities. “[O]nly federal administrative reports, audits or investigations,” the Fourth Circuit concluded, “qualify as public disclosures under the FCA.” 528 F.3d 292, 301 (2008) (emphasis added). The Circuits having divided over this issue,2 we granted certiorari to resolve the conflict. 557 U. S. __ (2009). —————— 2 Compare 528 F.3d, at 301–307 (limiting this portion of the public disclosure bar to federal sources), and United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745–746 (CA3 1997) (same), with United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918–919 (CA9 2006) (concluding that state and local sources may qualify), cert. denied, 552 U.S. 1165 (2008), and Battle v. Board of Regents for State of Ga., 468 F.3d 755, 762 (CA11 2006) (per curiam) (assuming without analysis that state audits may qualify). The Eighth Circuit appears to have taken a “middle road” on this issue, 528 F.3d, at 301, holding that disclosures made in nonfederal forums may count as “ ‘administrative . . . report[s]’ ” or “ ‘audit[s]’ ” under §3730(e)(4)(A) in some instances, as when they relate to “a cooperative federal-state program through which the federal government provides financial assistance.” Hays v. Hoff man, 325 F.3d 982, 989, cert. denied, 540 U.S. 877 (2003). 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court II We have examined the FCA’s qui tam provisions in several recent opinions.3 At issue in this case is the FCA’s public disclosure bar, which deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain chan nels. The statute contains three categories of jurisdiction stripping disclosures. Following the example of the Court of Appeals, see 528 F.3d, at 300–301, we have inserted Arabic numerals to identify these categories: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions [1] in a criminal, civil, or admin istrative hearing, [2] in a congressional, administra tive, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation, or [3] from the news media, unless the action is brought by the Attorney General or the person bringing the action is an origi nal source[4] of the information.” §3730(e)(4)(A) (foot note omitted). This dispute turns on the meaning of the adjective “ad ministrative” in the second category (Category 2): whether it embraces only forums that are federal in nature, as respondent alleges, or whether it extends to disclosures made in state and local sources such as the DEHNR Re —————— 3 See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) (construing §3730(e)(4)(A)’s original source exception); Cook County v. United States ex rel. Chandler, 538 U.S. 119 (2003) (holding that local governments are subject to qui tam liability); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000) (holding that States are not subject to private FCA actions). 4 A separate statutory provision defines an “original source” as “an individual who has direct and independent knowledge of the informa tion on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 31 U.S. C. §3730(e)(4)(B). Cite as: 559 U. S. ____ (2010) 5 Opinion of the Court port and the Audit Report, as petitioners allege. In debating this question, petitioners have relied pri marily on the statute’s text whereas respondent and the Solicitor General, as her amicus, have relied heavily on considerations of history and policy. Although there is some overlap among the three types of argument, it is useful to discuss them separately. We begin with the text. III The term “administrative” “may, in various contexts, bear a range of related meanings,” Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 103, n. 8 (1970) (Harlan, J., concurring in denial of writ), pertaining to private bodies as well as to governmental bodies. When used to modify the nouns “report, hearing, audit, or inves tigation,” in the context of a statutory provision about “the public disclosure” of fraud on the United States, the term is most naturally read to describe the activities of govern mental agencies. See Black’s Law Dictionary 49 (9th ed. 2009) (hereinafter Black’s) (defining “administration,” “[i]n public law, [as] the practical management and direction of the executive department and its agencies”). Given that “administrative” is not itself modified by “federal,” there is no immediately apparent textual basis for excluding the activities of state and local agencies (or their contractors) from its ambit. As the Court of Appeals recognized, “the statute by its express terms does not limit its reach to federal administrative reports or investigations.” 528 F.3d, at 301. “[T]here is nothing inherently federal about the word ‘administrative,’ and Congress did not define the term in the FCA.” Id., at 302. The Court of Appeals’ conclusion that “administrative” nevertheless reaches only federal sources rested on its application of the interpretive maxim noscitur a sociis. See id., at 302–305. This maxim, literally translated as “ ‘it is known by its associates,’ ” Black’s 1160, counsels 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court lawyers reading statutes that “a word may be known by the company it keeps,” Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923). All participants in this litigation acknowledge that the terms “congressional” and “[GAO]” are federal in nature; Congress is the Legislative Branch of the Federal Government,5 and the GAO is a federal agency.6 Relying on our opinions in S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370 (2006), and Beecham v. United States, 511 U.S. 368 (1994), the Court of Appeals reasoned that “the placement of ‘administrative’ squarely in the middle of a list of obvi ously federal sources strongly suggests that ‘administra tive’ should likewise be restricted to federal administrative reports, hearings, audits, or investigations.” 528 F.3d, at 302. In so holding, the Court of Appeals embraced what we might call the Sandwich Theory of the Third Circuit. Both courts “ ‘f[ou]nd it hard to believe that the drafters of this provision intended the word “administrative” to refer to both state and federal reports when it lies sandwiched between modifiers which are unquestionably federal in character.’ ” Ibid. (quoting United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (CA3 1997)). We find this use of noscitur a sociis unpersuasive. A list —————— 5 SeeU. S. Const., Art. I, §1; id., §4, cl. 1 (distinguishing “State . . . Legislature[s]” from “the Congress”). 6 The statute refers to the GAO, mistakenly, as the “Government Accounting Office.” It is undisputed that the intended referent was the General Accounting Office, now renamed the Government Accountabil ity Office. See 31 U.S. C. §3730, p. 254, n. 2 (compiler’s note); 528 F.3d 292, 300, n. 4 (CA4 2008); United States ex rel. Mistick PBT v. Housing Authority of Pittsburgh, 186 F.3d 376, 387 (CA3 1999) (Alito, J.), cert. denied, 529 U.S. 1018 (2000); see also Mistick, 186 F.3d, at 398 (Becker, C. J., dissenting) (noting that courts have “frequently” made the same scrivener’s error). We have described the GAO as “an inde pendent agency within the Legislative Branch that exists in large part to serve the needs of Congress.” Bowsher v. Merck & Co., 460 U.S. 824, 844 (1983). Cite as: 559 U. S. ____ (2010) 7 Opinion of the Court of three items, each quite distinct from the other no mat ter how construed, is too short to be particularly illuminat ing. Although this list may not be “completely disjunc tive,” 528 F.3d, at 302—it refers to “congressional, administrative, or [GAO]” sources, §3730(e)(4)(A), rather than “congressional, or administrative, or [GAO]” sources—neither is it completely harmonious. The sub stantive connection, or fit, between the terms “congres sional,” “administrative,” and “GAO” is not so tight or so self-evident as to demand that we “rob” any one of them “of its independent and ordinary significance.” Reiter v. Sonotone Corp., 442 U.S. 330, 338–339 (1979); see also Russell, 261 U.S., at 519 (“That a word may be known by the company it keeps is . . . not an invariable rule, for the word may have a character of its own not to be submerged by its association”). The adjectives in Category 2 are too few and too disparate to qualify as “a string of statutory terms,” S. D. Warren Co., 547 U.S., at 378, or “items in a list,” Beecham, 511 U.S., at 371, in the sense that we used those phrases in the cited cases.7 —————— 7 In Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961), the Court applied the noscitur a sociis maxim in construing a statutory provision that referred to “ ‘[i]ncome resulting from exploration, discovery, or prospecting,’ ” id., at 305 (quoting §456(a)(2)(B) of the Internal Revenue Code of 1939). JUSTICE SOTOMAYOR contends that “the three terms in Category 2 are no more ‘distinct’ or ‘disparate’ than the phrase at issue in Jarecki.” Post, at 4 (dissenting opinion) (citation omitted). We disagree. Whether taken in isolation or in context, the phrase “con gressional, administrative, or GAO” is not as cohesive as the phrase “exploration, discovery, or prospecting.” That is one reason why nosci tur a sociis proved illuminating in Jarecki, and why it is less helpful in this case. On their “face,” the terms “exploration,” “discovery,” and “prospecting” all describe processes of searching, seeking, speculating; the centrality of such activities to “the oil and gas and mining indus tries” gave a clue that it was those industries Congress had in mind when it drafted the provision. 367 U.S., at 307 (internal quotation marks omitted). The terms “congressional,” “administrative,” and “GAO” do not share any comparable core of meaning—or indeed any 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court More important, we need to evaluate “administrative” within the larger scheme of the public disclosure bar. Both parties acknowledge, as they must, that “[s]tatutory language has meaning only in context,” Graham County Soil, 545 U.S., at 415; where they differ is in determining the relevant context. The Sandwich Theory presupposes that Category 2 is the only piece of §3730(e)(4)(A) that matters. We agree with petitioners, however, that all of the sources listed in §3730(e)(4)(A) provide interpretive guidance. All of these sources drive at the same end: specifying the types of disclosures that can foreclose qui tam actions. In light of the public disclosure bar’s gram matical structure, it may be convenient and even clarify ing to parse the list of sources into three categories. But it does not follow that we should treat these categories as islands unto themselves. Courts have a “duty to construe statutes, not isolated provisions.” Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995). When we consider the entire text of the public disclosure bar, the case for limiting “administrative” to federal sources becomes significantly weaker. The “news media” referenced in Category 3 plainly have a broader sweep. The Federal Government funds certain media outlets, and certain private outlets have a national focus; but no one contends that Category 3 is limited to these sources. There is likewise no textual basis for assuming that the “criminal, civil, or administrative hearing[s]” listed in Category 1 must be federal hearings.8 Of the numerous —————— “common feature” at all, post, at 4—apart from a governmental conno tation. It takes the Sandwich Theory to graft a federal limitation onto “administrative.” 8 A number of lower courts have concluded that, as used in Category 1, “ ‘hearing’ is roughly synonymous with ‘proceeding.’ ” United States ex rel. Springfield Terminal R. Co. v. Quinn, 14 F.3d 645, 652 (CADC 1994); see also 1 J. Boese, Civil False Claims and Qui Tam Actions §4.02[B], p. 4–59, and n. 231 (3d ed. 2006) (hereinafter Boese); C. Cite as: 559 U. S. ____ (2010) 9 Opinion of the Court types of sources that serve a common function in §3730(e)(4)(A), then, only two are distinctly federal in nature, while one (the news media) is distinctly nonfederal in nature. If the Court of Appeals was correct that the term “ad ministrative” encompasses state and local sources in Category 1, see 528 F.3d, at 303, it becomes even harder to see why the term would not do the same in Category 2. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (“[A] legislative body generally uses a particular word with a consistent meaning in a given context”). Respondent and the Solicitor General assert that §3730(e)(4)(A)’s two references to “administrative” can be distinguished be cause Category 1 is best understood to refer to adjudica tive proceedings, whereas Category 2 is best understood to refer to legislative or quasi-legislative activities such as rulemaking, oversight, and investigations. See Brief for Respondent 16–18; Brief for United States as Amicus Curiae 25–26 (hereinafter Brief for United States). Yet even if this reading were correct, state and local adminis trative reports, hearings, audits, and investigations of a legislative-type character are presumably just as public, and just as likely to put the Federal Government on notice of a potential fraud, as state and local administrative hearings of an adjudicatory character.9 —————— Sylvia, The False Claims Act: Fraud Against the Government §11:35, p. 642 (2004) (hereinafter Sylvia). 9 See Bly-Magee, 470 F.3d, at 918 (“Indeed, the statute would seem to be inconsistent if it included state and local administrative hearings as sources of public disclosures [in Category 1] and then, in the next breath, excluded state administrative reports as sources”); In re Natu ral Gas Royalties Qui Tam Litigation, 467 F. Supp. 2d 1117, 1143–1144 (Wyo. 2006) (“There is no reason to conclude that Congress intended to limit administrative reports, audits, and investigations to federal actions, while simultaneously allowing all state and local civil litiga tion, state and local administrative hearings, and state and local news media to be treated as public disclosures. To interpret the statute so 10 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and the Solicitor General try to avoid this inference, and to turn a weakness into a strength, by further averring that the sources listed in Category 1 are themselves only federal. See Brief for Respondent 23–24; Brief for United States 25–26. No court has ever taken such a view of these sources. See 528 F.3d, at 303 (citing cases from the Third, Fourth, Fifth, Ninth, and Eleventh Circuits and stating that “[t]he courts have easily con cluded that [Category 1] applies to state-level hearings”); Sylvia §11:37, at 643, n. 1 (citing additional cases).10 The arguments in favor of reading a federal limitation into Category 1 are supported, if at all, by legislative history and policy; they find no support in the statute’s text. Moving from the narrow lens of the Sandwich Theory to a bird’s eye view, respondent and the Solicitor General also maintain that the “exclusively federal focus” of the FCA counsels against reading the public disclosure bar to encompass nonfederal sources. Brief for Respondent 10, 18; Brief for United States 13. The FCA undoubtedly has a federal focus. But so does every other federal statute. —————— narrowly would have the anomalous result of allowing public disclosure status to the most obscure local news report and the most obscure state and local civil lawsuit or administrative hearing, but denying public disclosure status to a formal public report of a state government agency”). 10 Following the Court of Appeals, see 528 F.3d, at 303, respondent asserts that only the Ninth Circuit, in A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1244 (2000), has explicitly considered and rejected the argument that Category 1 is limited to federal sources. Brief for Respondent 23–24. At least one other Circuit, however, has done the same, see United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1161, n. 6 (CA10 1999), and no lower court, as far as we are aware, has so much as suggested that an alternative construction might be viable. Moreover, the Third, Fifth, and Eleventh Circuit cases cited by the Court of Appeals postdate A-1 Ambulance and Dunleavy, 123 F.3d 734, both of which put litigants and courts on notice of the possibility that §3730(e)(4)(A) might be limited to federal sources. Cite as: 559 U. S. ____ (2010) 11 Opinion of the Court And as respondent and the Solicitor General elsewhere acknowledge, quite a few aspects of the FCA, including a reference to “administrative” proceedings in §3733(l) (7)(A)11 and the reference to “news media” in §3730(e)(4)(A) itself, are not just federal. In any event, the “federal focus” of the statute, as a whole, does not shine light on the specific question whether the public disclosure bar extends to certain nonfederal contexts. It is the fact of “public disclosure”—not Federal Government creation or receipt—that is the touchstone of §3730(e)(4)(A). Respondent and the Solicitor General make one last argument grounded in the statutory text: It would be anomalous, they say, for state and local administrative reports to count as public disclosures, when state legisla tive reports do not. See Brief for Respondent 15; Brief for United States 15–16. Yet neither respondent nor the Solicitor General disputes the contention of petitioners and their amici that, at the time the public disclosure bar was enacted in 1986, Congress rarely gave state legisla tures a meaningful role in administering or overseeing federally funded programs. See Brief for Petitioners 36– 39; Brief for National League of Cities et al. as Amici Curiae 8–13. As in the instant case, the Federal Govern ment was far more likely to enter into contracts with, and to provide moneys to, state and local executive agencies. Whether or not state legislative sources should have been included in §3730(e)(4)(A), their exclusion therefore car ries no clear implications for the status of state adminis trative sources. In sum, although the term “administrative” may be sandwiched in Category 2 between terms that are federal —————— 11 On its face, §3733(l)(7)(A) is silent as to whether it includes nonfed eral proceedings. Respondent and the Solicitor General suggest that it does, though they fairly argue that this provision, relating to civil investigative demands, has little if any relevance to the case at hand. See Brief for Respondent 21, n. 8; Brief for United States 31–32. 12 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court in nature, those terms are themselves sandwiched be tween phrases that have been generally understood to include nonfederal sources; and one of those phrases, in Category 1, contains the exact term that is the subject of our inquiry. These textual clues negate the force of the noscitur a sociis canon, as it was applied by the Court of Appeals.12 We are not persuaded that the associates with which “administrative” keeps company in §3730(e)(4)(A) endow it with an exclusively federal character. IV As originally enacted, the FCA did not limit the sources from which a relator could acquire the information to bring a qui tam action. In United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943), we upheld the relator’s recov ery even though he had discovered the fraud by reading a federal criminal indictment—a quintessential “parasitic” suit. Id., at 545–548; see id., at 545 (“Even if, as the gov ernment suggests, the petitioner has contributed nothing to the discovery of this crime, he has contributed much to accomplishing one of the purposes for which the Act was passed”). Congress promptly reacted to that decision by amending the statute to preclude qui tam actions “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, —————— 12 The Court of Appeals repeatedly referred to the three categories in §3730(e)(4)(A) as “clauses.” See 528 F.3d, at 300–305. Were they in fact clauses rather than prepositional phrases, reliance on noscitur a sociis might have been supported by one of our earliest cases using that term, Watson v. Mercer, 8 Pet. 88, 105 (1834) (Reporter’s statement of the case), which suggested that “different clauses of the same sen tence” should be presumed “to embrace the subject matter of the sentence.” The Court of Appeals’ mistaken reference to “clauses” is of course less significant than its failure to treat the public disclosure bar as an integrated whole. Cf. Stevens, The Shakespeare Canon of Statu tory Construction, 140 U. Pa. L. Rev. 1373, 1376 (1992) (emphasizing importance of reading provisions in their broader statutory context). Cite as: 559 U. S. ____ (2010) 13 Opinion of the Court at the time such suit was brought.” Act of Dec. 23, 1943, 57 Stat. 609 (codified at 31 U.S. C. §232(C) (1946 ed.)). This amendment erected what came to be known as a Government knowledge bar: “[O]nce the United States learned of a false claim, only the Government could assert its rights under the FCA against the false claimant.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949 (1997) (internal quotation marks omitted). In the years that followed the 1943 amendment, the vol ume and efficacy of qui tam litigation dwindled. “Seeking the golden mean between adequate incentives for whistle blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own,” United States ex rel. Springfield Terminal R. Co. v. Quinn, 14 F.3d 645, 649 (CADC 1994), Congress overhauled the statute once again in 1986 “to make the FCA a ‘more useful tool against fraud in modern times,’ ” Cook County v. United States ex rel. Chandler, 538 U.S. 119, 133 (2003) (quoting S. Rep. No. 99–345, p. 2 (1986) (hereinafter S. Rep.)). The present text of §3730(e)(4) was enacted in 1986 as part of this larger reform. Congress apparently concluded that a total bar on qui tam actions based on information already in the Government’s possession thwarted a sig nificant number of potentially valuable claims. Rather than simply repeal the Government knowledge bar, how ever, Congress replaced it with the public disclosure bar in an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits such as the one in Hess. How exactly §3730(e)(4) came to strike this balance in the way it did is a matter of consid erable uncertainty. The House and Senate Judiciary Committees each reported bills that contained very differ ent public disclosure bars from the one that emerged in the Statutes at Large; the Senate bill, for example, did not 14 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court include the words “administrative,” “audit,” or “investiga tion” in its version of Category 2, nor did it contain an original source exception. See S. Rep., at 42–43 (text of proposed §3730(e)(4)).13 In respondent and her amici’s view, this background counsels in favor of an exclusively federal interpretation of “administrative” for three separate reasons. First, the drafting history of the public disclosure bar suggests that Congress intended such a result. Second, a major aim of the 1986 amendments was to limit the scope of the Gov ernment knowledge bar, and “[c]onstruing [§3730(e)(4)(A)] as limited to disclosures in federal proceedings furthers Congress’s purpose ‘to encourage more private enforce ment suits.’ ” Brief for United States 21 (quoting S. Rep., at 23–24). Third, whereas federal administrative proceed ings can be presumed to provide the Attorney General with a fair opportunity to decide whether to bring an FCA action based on revelations made therein, the Attorney General is much less likely to learn of fraud disclosed in state proceedings. Respondent and her amici further maintain that it would be perverse to include nonfederal sources in Category 2, as local governments would then be able to shield themselves from qui tam liability by dis cretely disclosing evidence of fraud in “public” reports.14 These arguments are reasonable so far as they go, but they do not go very far. As many have observed, the draft ing history of the public disclosure bar raises more ques tions than it answers.15 Significant substantive changes— —————— 13 See also H. R. Rep. No. 99–660, pp. 2–3 (1986) (text of proposed §3730(b)(5)). The public disclosure bar that was enacted more closely resembles the version in the Senate bill. 14 State governments are already shielded from qui tam liability un der our precedent. Stevens, 529 U.S. 765. 15 See, e.g., Dunleavy, 123 F.3d, at 745 (“Congress gave us little spe cific guidance to determine the scope of public disclosure sources”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P. A. v. Cite as: 559 U. S. ____ (2010) 15 Opinion of the Court including the introduction of the term we are construing in this case—were inserted without floor debate, as “techni cal” amendments. That the original Senate bill mentioned only congressional and GAO sources in Category 2 is therefore of little moment. Neither the House nor the Senate Committee Report explained why a federal limita tion would be appropriate, and the subsequent addition of “administrative” sources to this Category might be taken as a sign that such a limitation was rejected by the full Chambers.16 —————— Prudential Ins. Co., 944 F.2d 1149, 1154 (CA3 1991) (“The bill that eventuated in the 1986 amendments underwent substantial revisions during its legislative path. This provides ample opportunity to search the legislative history and find some support somewhere for almost any construction of the many ambiguous terms in the final version”); id., at 1163 (Scirica, J., dissenting) (“One difficulty in interpreting the 1986 amendments is that Congress was never completely clear about what kind of ‘parasitic’ suits it was attempting to avoid”); Boese §4.02[A], at 4–46 (“The present Section 3730(e)(4) was enacted . . . without explana tion by Congress”); id., §4.02[A], at 4–47 to 4–48 (“[A]pplicable legisla tive history explaining versions [of §3730(e)(4)] not adopted is of little help in deciphering this provision. Because Section 3730(e)(4) was drafted subsequent to the completion of the House and Senate Commit tee reports on the proposed False Claims Act Amendments, those reports, which contained discussion of altogether different bars, cannot be used in interpreting it. And the sponsors’ interpretations of the provision ultimately enacted . . . are spare, often incorrect, and wide ranging enough to provide some support for almost any construction of its many ambiguities”). 16 JUSTICE SOTOMAYOR makes a valiant effort to unearth from the legislative history “the balance Congress evidently sought to achieve through the 1986 amendments.” Post, at 10. But her reconstruction of the history assigns little weight to the side of this balance preserved by the public disclosure bar: the desire to minimize “the potential for parasitic lawsuits by those who learn of the fraud through public channels and seek remuneration although they contributed nothing to the exposure of the fraud,” United States ex rel. Doe v. John Doe Corp., 960 F.2d 318, 319 (CA2 1992). And her narrative contains no account of why Category 2 emerged in the form that it did. Any such account would necessarily be an exercise in speculation, as the record is silent 16 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and her amici place particular emphasis on a remark made by the lead sponsor of the Senate bill, Senator Grassley. See Brief for Respondent 29; Brief for United States 20; Brief for American Center for Law and Justice as Amicus Curiae 13–14; Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 30–31. In a floor statement, Grassley said that “the term ‘Gov ernment’ in the definition of original source is meant to include any Government source of disclosures cited in [the public disclosure bar]; that is[,] Government includes Congress, the General Accounting Office, any executive or independent agency as well as all other governmental bodies that may have publicly disclosed the allegations.” 132 Cong. Rec. 20536 (1986). Yet even if a single sentence by a single legislator were entitled to any meaningful weight, Senator Grassley’s remark merely begs the ques tion before us. His formulation fails to indicate whether the “other governmental bodies” may be state or local bodies. It also turns on a term, “Government” with a capital “G,” that does not appear in the codified version of the public disclosure bar, which Congress subsequently revised in numerous respects prior to passage. There is, in fact, only one item in the legislative record that squarely corroborates respondent’s reading of the statute: a letter sent by the primary sponsors of the 1986 amendments to the Attorney General in 1999. See 145 Cong. Rec. 16032 (1999) (reproducing text of letter in which Rep. Berman and Sen. Grassley state: “We did intend, and any fair reading of the statute will confirm, that the disclosure must be in a federal criminal, civil or administrative hearing. Disclosure in a state proceeding —————— on the matter. In our view, neither the general trajectory of 20th century FCA reform nor the specific statements made during the 1986 legislative process clearly point one way or the other on the question before us. Cite as: 559 U. S. ____ (2010) 17 Opinion of the Court of any kind should not be a bar to a subsequent qui tam suit”). Needless to say, this letter does not qualify as legislative “history,” given that it was written 13 years after the amendments were enacted. It is consequently of scant or no value for our purposes.17 We do not doubt that Congress passed the 1986 amendments to the FCA “to strengthen the Government’s hand in fighting false claims,” Cook County, 538 U.S., at 133–134, and “to encourage more private enforcement suits,” S. Rep., at 23–24. It is equally beyond cavil, how ever, that Congress passed the public disclosure bar to bar a subset of those suits that it deemed unmeritorious or downright harmful. The question before us concerns the precise scope of that subset; and on this matter, the record is all but opaque. While “the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question,” United States v. Bornstein, 423 U. S. —————— 17 See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980); Hamdan v. Rumsfeld, 548 U.S. 557, 580, n. 10 (2006); see also Hafter, 190 F.3d, at 1161, n. 6 (refusing to credit the Berman-Grassley letter in interpreting the public disclosure bar). Respondent and her amici additionally contend that the enactment of the Program Fraud Civil Remedies Act of 1986 (PFCRA), 100 Stat. 1934 (codified at 31 U.S. C. §3801 et seq.), shortly before the enactment of the FCA amendments supports their reading of the latter. See Brief for Respondent 30–33; Brief for United States 14–15; Brief for Taxpay ers Against Fraud Education Fund as Amicus Curiae 28–29. Yet while “there is no question that the PFCRA was designed to operate in tandem with the FCA,” Stevens, 529 U.S., at 786, n. 17, or that the PFCRA is addressed to federal administrative agencies, there is also no explicit evidence to suggest that Congress intended to limit Category 2’s reference to “administrative” sources to the same set of agencies. The FCA’s public disclosure bar serves a distinct function not replicated in the PFCRA; the text of the public disclosure bar contains no refer ence to the PFCRA; and no Member of Congress, so far as we are aware, articulated any such intent. 18 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court 303, 310 (1976), there is no “evident legislative purpose” to guide our resolution of the discrete issue that confronts us. V Respondent and her amici likewise fail to prove their case that petitioners’ reading of the statute will lead to results that Congress could not have intended. Their argument rests on an empirical proposition: “While federal inquiries and their outcomes are readily available to De partment of Justice [(DOJ)] attorneys, many state and local reports and investigations never come to the atten tion of federal authorities.” Brief for United States 22; see also 528 F.3d, at 306 (“Because the federal government is unlikely to learn about state and local investigations, a large number of fraudulent claims against the government would go unremedied without the financial incentives offered by the qui tam provisions of the FCA”). This proposition is not implausible, but it is sheer conjecture. Numerous federal investigations may be occurring at any given time, and DOJ attorneys may not reliably learn about their findings. DOJ attorneys may learn about quite a few state and local inquiries, especially when the inquiries are conducted pursuant to a joint federal-state program financed in part by federal dollars, such as the program at issue in this case.18 Just how accessible to the Attorney General a typical state or local source will be, as compared to a federal source, is an open question. And it —————— 18 In some instances, federal law dictates that state and local govern ments receiving federal funds perform an audit of their programs. See 31 U.S. C. §7502(a)(1)(B) (requiring nonfederal entities that expend federal awards above a certain amount to “undergo a single audit” in accordance with specified conditions); Brief for State of Pennsylvania et al. as Amici Curiae 7–10 (discussing the Single Audit Act of 1984). It bears mention that, to the extent one is worried about Federal Gov ernment ignorance of state and local antifraud efforts, see post, at 10– 11, today’s ruling may induce federal authorities to pay closer attention to such efforts going forward. Cite as: 559 U. S. ____ (2010) 19 Opinion of the Court is not even the right question. The statutory touchstone, once again, is whether the allegations of fraud have been “public[ly] disclos[ed],” §3730(e)(4)(A), not whether they have landed on the desk of a DOJ lawyer. Respondent’s argument also gives insufficient weight to Congress’ decision to bar qui tam actions based on disclo sures “from the news media.” Ibid. Because there was no such bar prior to 1986, the addition of the news media as a jurisdiction-stripping category forecloses the suggestion that the 1986 amendments implemented a single-minded intent to increase the availability of qui tam litigation. And since the “news media” include a large number of local newspapers and radio stations, this category likely describes a multitude of sources that would seldom come to the attention of the Attorney General. As for respondent and her amici’s concern that local governments will insulate themselves from qui tam liabil ity “through careful, low key ‘disclosures’ ” of potential fraud, Brief for American Center for Law and Justice as Amicus Curiae 17, this argument rests not just on specu lation but indeed on rather strained speculation. Any such disclosure would not immunize the local government from FCA liability in an action brought by the United States, see Rockwell Int’l Corp. v. United States, 549 U.S. 457, 478 (2007)—and to the contrary it could tip off the Attorney General that such an action might be fruitful. It seems to us that petitioners have the more clear-eyed view when they assert that, “[g]iven the fact that the submis sion of a false claim to the United States subjects a defen dant to criminal liability, fines, debarment, treble dam ages and attorneys’ fees, no rational entity would prepare a report that self-discloses fraud with the sole purpose of cutting off qui tam actions.” Reply Brief for Petitioners 19; see also United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 919 (CA9 2006) (“The fear [of self-insulating disclosures] is unfounded in general because it is unlikely 20 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court that an agency trying to cover up its fraud would reveal the requisite ‘allegations or transactions’ underlying the fraud in a public document”).19 Our conclusion is buttressed by the fact that Congress carefully preserved the rights of the most deserving qui tam plaintiffs: those whistle-blowers who qualify as origi nal sources. Notwithstanding public disclosure of the allegations made by a qui tam plaintiff, her case may go forward if she is “an original source of the information.” §3730(e)(4)(A). It is therefore flat wrong to suggest that a finding for petitioners will “ ‘in effect return us to the unduly restrictive “government knowledge” standard’ ” that prevailed prior to 1986. Brief for United States 31 (quoting Dunleavy, 123 F.3d, at 746); see Brief for Re spondent 34 (asserting that “petitioners’ construction would reimpose a form of the ‘government knowledge’ bar” (capitalization omitted)). Today’s ruling merely confirms that disclosures made in one type of context—a state or local report, audit, or investigation—may trigger the public disclosure bar. It has no bearing on disclosures made in other contexts, and it leaves intact the ability of original sources to prosecute qui tam actions irrespective of the state of Government knowledge. Whether respon dent can qualify as an “original source,” as that term is defined in §3730(e)(4), is one of many issues that remain open on remand. —————— 19 Petitioners and their amici also counter with public policy argu ments of their own. Under the Court of Appeals’ reading of the statute, they allege, there is an increased likelihood that parasitic relators will beat more deserving relators to the courthouse, Brief for Petitioners 31, and that state and local governments will find their antifraud investi gations impeded, or will decline to conduct such investigations in the first place, on account of “opportunistic potential relators trolling state records and reports, available to the public,” in search of a qui tam claim, Brief for State of Pennsylvania et al. as Amici Curiae 11. Cite as: 559 U. S. ____ (2010) 21 Opinion of the Court VI Respondent and the Solicitor General have given nu merous reasons why they believe their reading of the FCA moves it closer to the golden mean between an inadequate and an excessive scope for private enforcement. Congress may well have endorsed those views in its recent amend ment to the public disclosure bar. See n. 1, supra. With respect to the version of §3730(e)(4)(A) that is before us, however, we conclude that the term “administrative” in Category 2 is not limited to federal sources. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 559 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–304 _________________ GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T. WILSON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 30, 2010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Parts I–III and V–VI of the Court’s opinion. As for Part IV, I agree that the stray snippets of legislative his tory respondent, the Solicitor General, and the dissent have collected prove nothing at all about Congress’s pur pose in enacting 31 U.S. C. §3730(e)(4)(A). Ante, at 14– 18. But I do not share the Court’s premise that if a “ ‘legis lative purpose’ ” were “ ‘evident’ ” from such history it would make any difference. Ante, at 17 (quoting United States v. Bornstein, 423 U.S. 303, 310 (1976)). The Con stitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79–80 (1998). If §3730(e)(4)(A)’s text includes state and local administra tive reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impos sible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorse ment of the majority in each House: the text of the en rolled bill that became law. Cite as: 559 U. S. ____ (2010) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–304 _________________ GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T.

Since its enactment during the Civil War, the False Claims Act, 3 U.S. C. has authorized both the Attorney General and private qui tam relators to recover from persons who make false or fraudulent claims for payment to the United States. The Act now contains a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain speci fied sources. The question before us is whether the reference to “administrative” reports, audits, and investigations in that provision encompasses disclo sures made in state and local sources as well as federal sources. We hold that it does. —————— On March 23, 200, the President signed into law the Patient Pro tection and Affordable Care Act, Pub. L. –48, Section 004(j)(2) of this legislation replaces the prior version of 3 U.S. C. with new language. The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Throughout this opinion, we use the present 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court I In 995 the United States Department of Agriculture (USDA) entered into contracts with two counties in North Carolina authorizing them to perform, or to hire others to perform, cleanup and repair work in areas that had suf fered extensive flooding. The Federal Government agreed to shoulder 75 percent of the contract costs. Respondent Karen T. Wilson was at that time an employee of the Graham County and Conservation District, a special purpose government body that had been delegated partial responsibility for coordinating and performing the reme diation effort. Suspecting possible fraud in connection with this effort, Wilson voiced her concerns to local offi cials in the summer of 995. She sent a letter to, and had a meeting with, agents of the USDA. Graham County officials began an investigation. An accounting firm hired by the county performed an audit and, in 996, d a report (Audit Report) that identified several potential irregularities in the county’s administra tion of the contracts. Shortly thereafter, the North Caro lina Department of Environment, Health, and Natural Resources d a report (DEHNR Report) identifying similar problems. The USDA’s Office of Inspector General eventually d a third report that contained additional findings. In 200 Wilson filed this action, alleging that petition ers, the Graham County and Cherokee County and Water Conservation Districts and a number of local and federal officials, violated the False Claims Act (FCA) by knowingly submitting false claims for payment pursuant to the 995 contracts. She further alleged that petitioners retaliated against her for aiding the federal investigation of those false claims. Following this Court’s review of the —————— tense in discussing the statute as it existed at the time this case was argued. Cite as: 559 U. S. (200) 3 Opinion of the Court statute of limitations applicable to Wilson’s retaliation claim, Graham County & Water Conservation Dist. v. United States ex rel. Wilson, the Court of Appeals ordered that that claim be dismissed as time barred. On remand, the District Court subsequently dismissed Wilson’s qui tam action for lack of jurisdiction. App. to Pet. for Cert. 95a– a. The court found that Wilson had failed to refute that her action was based upon allegations publicly dis closed in the Audit Report and the DEHNR Report. at 95a–98a. Those reports, the District Court determined, constituted “administrative report[s], audit[s], or investigation[s]” within the meaning of the FCA’s public disclosure bar, 3 U.S. C. The Court of Appeals reversed the judgment of the District Court because the reports had been generated by state and local entities. “[O]nly federal administrative reports, audits or investigations,” the Fourth Circuit concluded, “qualify as public disclosures under the FCA.” The Circuits having divided over this2 we granted certiorari to resolve the conflict. 557 U. S. (2009). —————— 2 528 F.3d, at –307 (limiting this portion of the public disclosure bar to federal sources), and United States ex rel. v. County of Delaware, with United States ex rel. 98–99 (concluding that state and local sources may qualify), cert. denied, and (assuming without analysis that state audits may qualify). The Eighth Circuit appears to have taken a “middle road” on this 528 F.3d, at holding that disclosures made in nonfederal forums may count as “ ‘administrative report[s]’ ” or “ ‘audit[s]’ ” under (A) in some instances, as when they relate to “a cooperative federal-state program through which the federal government provides financial assistance.” 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court II We have examined the FCA’s qui tam provisions in several recent opinions.3 At in this case is the FCA’s public disclosure bar, which deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain chan nels. The statute contains three categories of jurisdiction stripping disclosures. Following the example of the Court of Appeals, see –, we have inserted Arabic numerals to identify these categories: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions [] in a criminal, civil, or admin istrative hearing, [2] in a congressional, administra tive, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation, or [3] from the news media, unless the action is brought by the Attorney General or the person bringing the action is an origi nal source[4] of the information.” (A) (foot note omitted). This dispute turns on the meaning of the adjective “ad ministrative” in the second category (Category 2): whether it embraces only forums that are federal in nature, as respondent alleges, or whether it extends to disclosures made in state and local sources such as the DEHNR Re —————— 3 See, e.g., Rockwell Int’l (construing (A)’s original source exception); Cook County v. United States ex rel. Chandler, (holding that local governments are subject to qui tam liability); Vermont Agency of Natural (holding that States are not subject to private FCA actions). 4 A separate statutory provision defines an “original source” as “an individual who has direct and independent knowledge of the informa tion on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 3 U.S. C. (B). Cite as: 559 U. S. (200) 5 Opinion of the Court port and the Audit Report, as petitioners allege. In debating this question, petitioners have relied pri marily on the statute’s text whereas respondent and the Solicitor General, as her amicus, have relied heavily on considerations of history and policy. Although there is some overlap among the three types of argument, it is useful to discuss them separately. We begin with the text. III The term “administrative” “may, in various contexts, bear a range of related meanings,” (Harlan, J., concurring in denial of writ), pertaining to private bodies as well as to governmental bodies. When used to modify the nouns “report, hearing, audit, or inves tigation,” in the context of a statutory provision about “the public disclosure” of fraud on the United States, the term is most naturally read to describe the activities of govern mental agencies. See Black’s Law Dictionary 49 (9th ed. 2009) (hereinafter Black’s) (defining “administration,” “[i]n public law, [as] the practical management and direction of the executive department and its agencies”). Given that “administrative” is not itself modified by “federal,” there is no immediately apparent textual basis for excluding the activities of state and local agencies (or their contractors) from its ambit. As the Court of Appeals recognized, “the statute by its express terms does not limit its reach to federal administrative reports or investigations.” 528 F.3d, at “[T]here is nothing inherently federal about the word ‘administrative,’ and Congress did not define the term in the FCA.” The Court of Appeals’ conclusion that “administrative” nevertheless reaches only federal sources rested on its application of the interpretive maxim noscitur a sociis. See –305. This maxim, literally translated as “ ‘it is known by its associates,’ ” Black’s 60, counsels 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court lawyers reading statutes that “a word may be known by the company it keeps,” Motor Car All participants in this litigation acknowledge that the terms “congressional” and “[GAO]” are federal in nature; Congress is the Legislative Branch of the Federal Government,5 and the GAO is a federal agency.6 Relying on our opinions in S. D. Warren v. Maine Bd. of Environmental Protection, 547 U.S. 370 and (994), the Court of Appeals reasoned that “the placement of ‘administrative’ squarely in the middle of a list of obvi ously federal sources strongly suggests that ‘administra tive’ should likewise be restricted to federal administrative reports, hearings, audits, or investigations.” 528 F.3d, at 302. In so holding, the Court of Appeals embraced what we might call the Sandwich Theory of the Third Circuit. Both courts “ ‘f[ou]nd it hard to believe that the drafters of this provision intended the word “administrative” to refer to both state and federal reports when it lies sandwiched between modifiers which are unquestionably federal in character.’ ” ). We find this use of noscitur a sociis unpersuasive. A list —————— 5 SeeU. S. Const., Art. I, cl. (distinguishing “State Legislature[s]” from “the Congress”). 6 The statute refers to the GAO, mistakenly, as the “Government Accounting Office.” It is undisputed that the intended referent was the General Accounting Office, now renamed the Government Accountabil ity Office. See 3 U.S. C. p. 254, n. 2 (compiler’s note); 528 F.3d 292, 300, n. 4 ; United States ex rel. cert. denied, ; see (Becker, C. J., dissenting) (noting that courts have “frequently” made the same scrivener’s error). We have described the GAO as “an inde pendent agency within the Legislative Branch that exists in large part to serve the needs of Congress.” 844 (983). Cite as: 559 U. S. (200) 7 Opinion of the Court of three items, each quite distinct from the other no mat ter how construed, is too short to be particularly illuminat ing. Although this list may not be “completely disjunc tive,” 528 F.3d, —it refers to “congressional, administrative, or [GAO]” sources, (A), rather than “congressional, or administrative, or [GAO]” sources—neither is it completely harmonious. The sub stantive connection, or fit, between the terms “congres sional,” “administrative,” and “GAO” is not so tight or so self-evident as to demand that we “rob” any one of them “of its independent and ordinary significance.” Reiter v. Sonotone Corp., ; see 26 U.S., at (“That a word may be known by the company it keeps is not an invariable rule, for the word may have a character of its own not to be submerged by its association”). The adjectives in Category 2 are too few and too disparate to qualify as “a string of statutory terms,” S. D. Warren or “items in a list,” in the sense that we used those phrases in the cited cases.7 —————— 7 In Jarecki v. G. D. Searle & the Court applied the noscitur a sociis maxim in construing a statutory provision that referred to “ ‘[i]ncome resulting from exploration, discovery, or prospecting,’ ” (quoting of the Internal Revenue Code of 939). JUSTICE SOTOMAYOR contends that “the three terms in Category 2 are no more ‘distinct’ or ‘disparate’ than the phrase at in Jarecki.” Post, at 4 (dissenting opinion) (citation omitted). We disagree. Whether taken in isolation or in context, the phrase “con gressional, administrative, or GAO” is not as cohesive as the phrase “exploration, discovery, or prospecting.” That is one reason why nosci tur a sociis proved illuminating in Jarecki, and why it is less helpful in this case. On their “face,” the terms “exploration,” “discovery,” and “prospecting” all describe processes of searching, seeking, speculating; the centrality of such activities to “the oil and gas and mining indus tries” gave a clue that it was those industries Congress had in mind when it drafted the (internal quotation marks omitted). The terms “congressional,” “administrative,” and “GAO” do not share any comparable core of meaning—or indeed any 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court More important, we need to evaluate “administrative” within the larger scheme of the public disclosure bar. Both parties acknowledge, as they must, that “[s]tatutory language has meaning only in context,” Graham County ; where they differ is in determining the relevant context. The Sandwich Theory presupposes that Category 2 is the only piece of (A) that matters. We agree with petitioners, however, that all of the sources listed in (A) provide interpretive guidance. All of these sources drive at the same end: specifying the types of disclosures that can foreclose qui tam actions. In light of the public disclosure bar’s gram matical structure, it may be convenient and even clarify ing to parse the list of sources into three categories. But it does not follow that we should treat these categories as islands unto themselves. Courts have a “duty to construe statutes, not isolated provisions.” Gustafson v. Alloyd When we consider the entire text of the public disclosure bar, the case for limiting “administrative” to federal sources becomes significantly weaker. The “news media” referenced in Category 3 plainly have a broader sweep. The Federal Government funds certain media outlets, and certain private outlets have a national focus; but no one contends that Category 3 is limited to these sources. There is likewise no textual basis for assuming that the “criminal, civil, or administrative hearing[s]” listed in Category must be federal hearings.8 Of the numerous —————— “common feature” at all, post, at 4—apart from a governmental conno tation. It takes the Sandwich Theory to graft a federal limitation onto “administrative.” 8 A number of lower courts have concluded that, as used in Category “ ‘hearing’ is roughly synonymous with ‘proceeding.’ ” United States ex rel. Springfield Terminal R. v. Quinn, (CADC 994); see J. Boese, Civil False Claims and Qui Tam Actions p. 4–59, and n. 23 (hereinafter Boese); C. Cite as: 559 U. S. (200) 9 Opinion of the Court types of sources that serve a common function in (A), then, only two are distinctly federal in nature, while one (the news media) is distinctly nonfederal in nature. If the Court of Appeals was correct that the term “ad ministrative” encompasses state and local sources in Category see it becomes even harder to see why the term would not do the same in Category 2. See (“[A] legislative body generally uses a particular word with a consistent meaning in a given context”). Respondent and the Solicitor General assert that (A)’s two references to “administrative” can be distinguished be cause Category is best understood to refer to adjudica tive proceedings, whereas Category 2 is best understood to refer to legislative or quasi-legislative activities such as rulemaking, oversight, and investigations. See Brief for Respondent 6–8; Brief for United States as Amicus Curiae 25–26 (hereinafter Brief for United States). Yet even if this reading were correct, state and local adminis trative reports, hearings, audits, and investigations of a legislative-type character are presumably just as public, and just as likely to put the Federal Government on notice of a potential fraud, as state and local administrative hearings of an adjudicatory character.9 —————— Sylvia, The False Claims Act: Fraud Against the Government p. 642 (2004) (hereinafter Sylvia). 9 See (“Indeed, the statute would seem to be inconsistent if it included state and local administrative hearings as sources of public disclosures [in Category ] and then, in the next breath, excluded state administrative reports as sources”); In re Natu ral Gas Royalties Qui Tam Litigation, 43–44 (“There is no reason to conclude that Congress intended to limit administrative reports, audits, and investigations to federal actions, while simultaneously allowing all state and local civil litiga tion, state and local administrative hearings, and state and local news media to be treated as public disclosures. To interpret the statute so 0 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and the Solicitor General try to avoid this inference, and to turn a weakness into a strength, by further averring that the sources listed in Category are themselves only federal. See Brief for Respondent 23–24; Brief for United States 25–26. No court has ever taken such a view of these sources. See (citing cases from the Third, Fourth, Fifth, Ninth, and Eleventh Circuits and stating that “[t]he courts have easily con cluded that [Category ] applies to state-level hearings”); Sylvia at 643, n. (citing additional cases).0 The arguments in favor of reading a federal limitation into Category are supported, if at all, by legislative history and policy; they find no support in the statute’s text. Moving from the narrow lens of the Sandwich Theory to a bird’s eye view, respondent and the Solicitor General maintain that the “exclusively federal focus” of the FCA counsels against reading the public disclosure bar to encompass nonfederal sources. Brief for Respondent 0, 8; Brief for United States 3. The FCA undoubtedly has a federal focus. But so does every other federal statute. —————— narrowly would have the anomalous result of allowing public disclosure status to the most obscure local news report and the most obscure state and local civil lawsuit or administrative hearing, but denying public disclosure status to a formal public report of a state government agency”). 0 Following the Court of Appeals, see respondent asserts that only the Ninth Circuit, in A- Ambulance Serv., Inc. v. California, has explicitly considered and rejected the argument that Category is limited to federal sources. Brief for Respondent 23–24. At least one other Circuit, however, has done the same, see United States ex rel. and no lower court, as far as we are aware, has so much as suggested that an alternative construction might be viable. Moreover, the Third, Fifth, and Eleventh Circuit cases cited by the Court of Appeals postdate A- Ambulance and both of which put litigants and courts on notice of the possibility that (A) might be limited to federal sources. Cite as: 559 U. S. (200) Opinion of the Court And as respondent and the Solicitor General elsewhere acknowledge, quite a few aspects of the FCA, including a reference to “administrative” proceedings in (7)(A) and the reference to “news media” in (A) itself, are not just federal. In any event, the “federal focus” of the statute, as a whole, does not shine light on the specific question whether the public disclosure bar extends to certain nonfederal contexts. It is the fact of “public disclosure”—not Federal Government creation or receipt—that is the touchstone of Respondent and the Solicitor General make one last argument grounded in the statutory text: It would be anomalous, they say, for state and local administrative reports to count as public disclosures, when state legisla tive reports do not. See Brief for Respondent 5; Brief for United States 5–6. Yet neither respondent nor the Solicitor General disputes the contention of petitioners and their amici that, at the time the public disclosure bar was enacted in 986, Congress rarely gave state legisla tures a meaningful role in administering or overseeing federally funded programs. See Brief for Petitioners 36– 39; Brief for National League of Cities et al. as Amici Curiae 8–3. As in the instant case, the Federal Govern ment was far more likely to enter into contracts with, and to provide moneys to, state and local executive agencies. Whether or not state legislative sources should have been included in (A), their exclusion therefore car ries no clear implications for the status of state adminis trative sources. In sum, although the term “administrative” may be sandwiched in Category 2 between terms that are federal —————— On its face, (7)(A) is silent as to whether it includes nonfed eral proceedings. Respondent and the Solicitor General suggest that it does, though they fairly argue that this provision, relating to civil investigative demands, has little if any relevance to the case at hand. See Brief for Respondent 2, n. 8; Brief for United States 3–32. 2 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court in nature, those terms are themselves sandwiched be tween phrases that have been generally understood to include nonfederal sources; and one of those phrases, in Category contains the exact term that is the subject of our inquiry. These textual clues negate the force of the noscitur a sociis canon, as it was applied by the Court of Appeals.2 We are not persuaded that the associates with which “administrative” keeps company in (A) endow it with an exclusively federal character. IV As originally enacted, the FCA did not limit the sources from which a relator could acquire the information to bring a qui tam action. In United States ex rel. Marcus v. Hess, we upheld the relator’s recov ery even though he had discovered the fraud by reading a federal criminal indictment—a quintessential “parasitic” suit. –548; see (“Even if, as the gov ernment suggests, the petitioner has contributed nothing to the discovery of this crime, he has contributed much to accomplishing one of the purposes for which the Act was passed”). Congress promptly reacted to that decision by amending the statute to preclude qui tam actions “based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, —————— 2 The Court of Appeals repeatedly referred to the three categories in (A) as “clauses.” See –305. Were they in fact clauses rather than prepositional phrases, reliance on noscitur a sociis might have been supported by one of our earliest cases using that term, (Reporter’s statement of the case), which suggested that “different clauses of the same sen tence” should be presumed “to embrace the subject matter of the sentence.” The Court of Appeals’ mistaken reference to “clauses” is of course less significant than its failure to treat the public disclosure bar as an integrated whole. Cf. The Shakespeare Canon of Statu tory Construction, (emphasizing importance of reading provisions in their broader statutory context). Cite as: 559 U. S. (200) 3 Opinion of the Court at the time such suit was brought.” Act of Dec. 23, 943, (codified at 3 U.S. C. (946 ed.)). This amendment erected what came to be known as a Government knowledge bar: “[O]nce the United States learned of a false claim, only the Government could assert its rights under the FCA against the false claimant.” Hughes Aircraft v. United States ex rel. Schumer, 520 U.S. 939, 949 (internal quotation marks omitted). In the years that followed the 943 amendment, the vol ume and efficacy of qui tam litigation dwindled. “Seeking the golden mean between adequate incentives for whistle blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own,” United States ex rel. Springfield Terminal R. v. Quinn, 4 F.3d 645, 649 (CADC 994), Congress overhauled the statute once again in 986 “to make the FCA a ‘more useful tool against fraud in modern times,’ ” Cook County v. United States ex rel. Chandler, (quoting S. Rep. No. 99–345, p. 2 (986) (hereinafter S. Rep.)). The present text of was enacted in 986 as part of this larger reform. Congress apparently concluded that a total bar on qui tam actions based on information already in the Government’s possession thwarted a sig nificant number of potentially valuable claims. Rather than simply repeal the Government knowledge bar, how ever, Congress replaced it with the public disclosure bar in an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits such as the one in Hess. How exactly came to strike this balance in the way it did is a matter of consid erable uncertainty. The House and Senate Judiciary Committees each reported bills that contained very differ ent public disclosure bars from the one that emerged in the Statutes at Large; the Senate bill, for example, did not 4 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court include the words “administrative,” “audit,” or “investiga tion” in its version of Category 2, nor did it contain an original source exception. See S. Rep., at 42–43 (text of proposed ).3 In respondent and her amici’s view, this background counsels in favor of an exclusively federal interpretation of “administrative” for three separate reasons. First, the drafting history of the public disclosure bar suggests that Congress intended such a result. Second, a major aim of the 986 amendments was to limit the scope of the Gov ernment knowledge bar, and “[c]onstruing [(A)] as limited to disclosures in federal proceedings furthers Congress’s purpose ‘to encourage more private enforce ment suits.’ ” Brief for United States 2 (quoting S. Rep., at 23–24). Third, whereas federal administrative proceed ings can be presumed to provide the Attorney General with a fair opportunity to decide whether to bring an FCA action based on revelations made therein, the Attorney General is much less likely to learn of fraud disclosed in state proceedings. Respondent and her amici further maintain that it would be perverse to include nonfederal sources in Category 2, as local governments would then be able to shield themselves from qui tam liability by dis cretely disclosing evidence of fraud in “public” reports.4 These arguments are reasonable so far as they go, but they do not go very far. As many have observed, the draft ing history of the public disclosure bar raises more ques tions than it answers.5 Significant substantive changes— —————— 3 See H. R. Rep. No. 99–660, pp. 2–3 (986) (text of proposed The public disclosure bar that was enacted more closely resembles the version in the Senate bill. 4 State governments are already shielded from qui tam liability un der our precedent. 5 See, e.g., 23 F.3d, at (“Congress gave us little spe cific guidance to determine the scope of public disclosure sources”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P. A. v. Cite as: 559 U. S. (200) 5 Opinion of the Court including the introduction of the term we are construing in this case—were inserted without floor debate, as “techni cal” amendments. That the original Senate bill mentioned only congressional and GAO sources in Category 2 is therefore of little moment. Neither the House nor the Senate Committee Report explained why a federal limita tion would be appropriate, and the subsequent addition of “administrative” sources to this Category might be taken as a sign that such a limitation was rejected by the full Chambers.6 —————— Prudential Ins. (“The bill that eventuated in the 986 amendments underwent substantial revisions during its legislative path. This provides ample opportunity to search the legislative history and find some support somewhere for almost any construction of the many ambiguous terms in the final version”); at 63 (Scirica, J., dissenting) (“One difficulty in interpreting the 986 amendments is that Congress was never completely clear about what kind of ‘parasitic’ suits it was attempting to avoid”); Boese at 4–46 (“The present Section 3730(e)(4) was enacted without explana tion by Congress”); at 4–47 to 4–48 (“[A]pplicable legisla tive history explaining versions [of ] not adopted is of little help in deciphering this Because Section 3730(e)(4) was drafted subsequent to the completion of the House and Senate Commit tee reports on the proposed False Claims Act Amendments, those reports, which contained discussion of altogether different bars, cannot be used in interpreting it. And the sponsors’ interpretations of the provision ultimately enacted are spare, often incorrect, and wide ranging enough to provide some support for almost any construction of its many ambiguities”). 6 JUSTICE SOTOMAYOR makes a valiant effort to unearth from the legislative history “the balance Congress evidently sought to achieve through the 986 amendments.” Post, at 0. But her reconstruction of the history assigns little weight to the side of this balance preserved by the public disclosure bar: the desire to minimize “the potential for parasitic lawsuits by those who learn of the fraud through public channels and seek remuneration although they contributed nothing to the exposure of the fraud,” United States ex rel. And her narrative contains no account of why Category 2 emerged in the form that it did. Any such account would necessarily be an exercise in speculation, as the record is silent 6 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court Respondent and her amici place particular emphasis on a remark made by the lead sponsor of the Senate bill, Senator Grassley. See Brief for Respondent 29; Brief for United States 20; Brief for American Center for Law and Justice as Amicus Curiae 3–4; Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 30–3. In a floor statement, Grassley said that “the term ‘Gov ernment’ in the definition of original source is meant to include any Government source of disclosures cited in [the public disclosure bar]; that is[,] Government includes Congress, the General Accounting Office, any executive or independent agency as well as all other governmental bodies that may have publicly disclosed the allegations.” 32 Cong. Rec. 20536 (986). Yet even if a single sentence by a single legislator were entitled to any meaningful weight, Senator Grassley’s remark merely begs the ques tion before us. His formulation fails to indicate whether the “other governmental bodies” may be state or local bodies. It turns on a term, “Government” with a capital “G,” that does not appear in the codified version of the public disclosure bar, which Congress subsequently revised in numerous respects prior to passage. There is, in fact, only one item in the legislative record that squarely corroborates respondent’s reading of the statute: a letter sent by the primary sponsors of the 986 amendments to the Attorney General in See 45 Cong. Rec. 6032 (reproducing text of letter in which Rep. Berman and Sen. Grassley state: “We did intend, and any fair reading of the statute will confirm, that the disclosure must be in a federal criminal, civil or administrative hearing. Disclosure in a state proceeding —————— on the matter. In our view, neither the general trajectory of 20th century FCA reform nor the specific statements made during the 986 legislative process clearly point one way or the other on the question before us. Cite as: 559 U. S. (200) 7 Opinion of the Court of any kind should not be a bar to a subsequent qui tam suit”). Needless to say, this letter does not qualify as legislative “history,” given that it was written 3 years after the amendments were enacted. It is consequently of scant or no value for our purposes.7 We do not doubt that Congress passed the 986 amendments to the FCA “to strengthen the Government’s hand in fighting false claims,” Cook County, 538 U.S., at –34, and “to encourage more private enforcement suits,” S. Rep., at 23–24. It is equally beyond cavil, how ever, that Congress passed the public disclosure bar to bar a subset of those suits that it deemed unmeritorious or downright harmful. The question before us concerns the precise scope of that subset; and on this matter, the record is all but opaque. While “the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question,” United 423 U. S. —————— 7 See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 02, 8 (980); ; see 90 F.3d, at (refusing to credit the Berman-Grassley letter in interpreting the public disclosure bar). Respondent and her amici additionally contend that the enactment of the Program Fraud Civil Remedies Act of 986 (PFCRA), 00 Stat. 934 (codified at 3 U.S. C. et seq.), shortly before the enactment of the FCA amendments supports their reading of the latter. See Brief for Respondent 30–33; Brief for United States 4–5; Brief for Taxpay ers Against Fraud Education Fund as Amicus Curiae 28–29. Yet while “there is no question that the PFCRA was designed to operate in tandem with the FCA,” n. 7, or that the PFCRA is addressed to federal administrative agencies, there is no explicit evidence to suggest that Congress intended to limit Category 2’s reference to “administrative” sources to the same set of agencies. The FCA’s public disclosure bar serves a distinct function not replicated in the PFCRA; the text of the public disclosure bar contains no refer ence to the PFCRA; and no Member of Congress, so far as we are aware, articulated any such intent. 8 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court 303, 30 (976), there is no “evident legislative purpose” to guide our resolution of the discrete that confronts us. V Respondent and her amici likewise fail to prove their case that petitioners’ reading of the statute will lead to results that Congress could not have intended. Their argument rests on an empirical proposition: “While federal inquiries and their outcomes are readily available to De partment of Justice [(DOJ)] attorneys, many state and local reports and investigations never come to the atten tion of federal authorities.” Brief for United States 22; see (“Because the federal government is unlikely to learn about state and local investigations, a large number of fraudulent claims against the government would go unremedied without the financial incentives offered by the qui tam provisions of the FCA”). This proposition is not implausible, but it is sheer conjecture. Numerous federal investigations may be occurring at any given time, and DOJ attorneys may not reliably learn about their findings. DOJ attorneys may learn about quite a few state and local inquiries, especially when the inquiries are conducted pursuant to a joint federal-state program financed in part by federal dollars, such as the program at in this case.8 Just how accessible to the Attorney General a typical state or local source will be, as compared to a federal source, is an open question. And it —————— 8 In some instances, federal law dictates that state and local govern ments receiving federal funds perform an audit of their programs. See 3 U.S. C. (requiring nonfederal entities that expend federal awards above a certain amount to “undergo a single audit” in accordance with specified conditions); Brief for State of Pennsylvania et al. as Amici Curiae 7–0 (discussing the Single Audit Act of 984). It bears mention that, to the extent one is worried about Federal Gov ernment ignorance of state and local antifraud efforts, see post, at 0– today’s ruling may induce federal authorities to pay closer attention to such efforts going forward. Cite as: 559 U. S. (200) 9 Opinion of the Court is not even the right question. The statutory touchstone, once again, is whether the allegations of fraud have been “public[ly] disclos[ed],” (A), not whether they have landed on the desk of a DOJ lawyer. Respondent’s argument gives insufficient weight to Congress’ decision to bar qui tam actions based on disclo sures “from the news media.” Because there was no such bar prior to 986, the addition of the news media as a jurisdiction-stripping category forecloses the suggestion that the 986 amendments implemented a single-minded intent to increase the availability of qui tam litigation. And since the “news media” include a large number of local newspapers and radio stations, this category likely describes a multitude of sources that would seldom come to the attention of the Attorney General. As for respondent and her amici’s concern that local governments will insulate themselves from qui tam liabil ity “through careful, low key ‘disclosures’ ” of potential fraud, Brief for American Center for Law and Justice as Amicus Curiae 7, this argument rests not just on specu lation but indeed on rather strained speculation. Any such disclosure would not immunize the local government from FCA liability in an action brought by the United States, see Rockwell Int’l 549 U.S. 457, 478 —and to the contrary it could tip off the Attorney General that such an action might be fruitful. It seems to us that petitioners have the more clear-eyed view when they assert that, “[g]iven the fact that the submis sion of a false claim to the United States subjects a defen dant to criminal liability, fines, debarment, treble dam ages and attorneys’ fees, no rational entity would prepare a report that self-discloses fraud with the sole purpose of cutting off qui tam actions.” Reply Brief for Petitioners 9; see United States ex rel. 470 F.3d 94, 99 (“The fear [of self-insulating disclosures] is unfounded in general because it is unlikely 20 GRAHAM COUNTY SOIL AND WATER CONSERVATION DIST. v. UNITED STATES EX REL. WILSON Opinion of the Court that an agency trying to cover up its fraud would reveal the requisite ‘allegations or transactions’ underlying the fraud in a public document”).9 Our conclusion is buttressed by the fact that Congress carefully preserved the rights of the most deserving qui tam plaintiffs: those whistle-blowers who qualify as origi nal sources. Notwithstanding public disclosure of the allegations made by a qui tam plaintiff, her case may go forward if she is “an original source of the information.” It is therefore flat wrong to suggest that a finding for petitioners will “ ‘in effect return us to the unduly restrictive “government knowledge” standard’ ” that prevailed prior to 986. Brief for United States 3 (quoting ); see Brief for Re spondent 34 (asserting that “petitioners’ construction would reimpose a form of the ‘government knowledge’ bar” (capitalization omitted)). Today’s ruling merely confirms that disclosures made in one type of context—a state or local report, audit, or investigation—may trigger the public disclosure bar. It has no bearing on disclosures made in other contexts, and it leaves intact the ability of original sources to prosecute qui tam actions irrespective of the state of Government knowledge. Whether respon dent can qualify as an “original source,” as that term is defined in is one of many s that remain open on remand. —————— 9 Petitioners and their amici counter with public policy argu ments of their own. Under the Court of Appeals’ reading of the statute, they allege, there is an increased likelihood that parasitic relators will beat more deserving relators to the courthouse, Brief for Petitioners 3, and that state and local governments will find their antifraud investi gations impeded, or will decline to conduct such investigations in the first place, on account of “opportunistic potential relators trolling state records and reports, available to the public,” in search of a qui tam claim, Brief for State of Pennsylvania et al. as Amici Curiae Cite as: 559 U. S. (200) 2 Opinion of the Court VI Respondent and the Solicitor General have given nu merous reasons why they believe their reading of the FCA moves it closer to the golden mean between an inadequate and an excessive scope for private enforcement. Congress may well have endorsed those views in its recent amend ment to the public disclosure bar. See n. With respect to the version of (A) that is before us, however, we conclude that the term “administrative” in Category 2 is not limited to federal sources. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 559 U. S. (200) Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 08–304 GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T. WILSON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [March 30, 200] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join Parts I–III and V–VI of the Court’s opinion. As for Part IV, I agree that the stray snippets of legislative his tory respondent, the Solicitor General, and the dissent have collected prove nothing at all about Congress’s pur pose in enacting 3 U.S. C. Ante, at 4– 8. But I do not share the Court’s premise that if a “ ‘legis lative purpose’ ” were “ ‘evident’ ” from such history it would make any difference. Ante, at 7 (quoting United 30 (976)). The Con stitution gives legal effect to the “Laws” Congress enacts, Art. VI, cl. 2, not the objectives its Members aimed to achieve in voting for them. See (998). If (A)’s text includes state and local administra tive reports and audits, as the Court correctly concludes it does, then it is utterly irrelevant whether the Members of Congress intended otherwise. Anyway, it is utterly impos sible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorse ment of the majority in each House: the text of the en rolled bill that became law. Cite as: 559 U. S. (200) SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–304 GRAHAM COUNTY SOIL AND WATER CONSERVA- TION DISTRICT, ET AL., PETITIONERS v. UNITED STATES EX REL. KAREN T.

Justice White

majority

Bill Johnson's Restaurants, Inc. v. NLRB

https://www.courtlistener.com/opinion/110943/bill-johnsons-restaurants-inc-v-nlrb/

https://www.courtlistener.com/api/rest/v3/clusters/110943/

1982-089

We must decide whether the National Labor Relations Board may issue a cease-and-desist order to halt the prosecution of a state-court civil suit brought by an employer to retaliate against employees for exercising federally protected labor rights, without also finding that the suit lacks a reasonable basis in fact or law. I The present controversy arises out of a labor dispute at "Bill Johnson's Big Apple East," one of four restaurants owned and operated by the petitioner in Phoenix, Ariz. It began on August 8, 1978, when petitioner fired Myrland Helton, one of the most senior waitresses at the restaurant. Believing that her termination was the result of her efforts to organize a union, she filed unfair labor practice charges against the restaurant with the Board. On September 20, after an investigation, the Board's General Counsel issued a complaint. On the same day, Helton, joined by three co-waitresses and a few others, picketed the restaurant. The picketers carried signs asking customers to boycott the restaurant because its management was unfair to the waitresses. Petitioner's manager confronted the picketers and threatened to "get even" with them "if it's the last thing I do." Petitioner's president telephoned the husband *734 of one of the picketing waitresses and impliedly threatened that the couple would "get hurt" and lose their new home if the wife continued to participate in the protest. The picketing continued on September 21 and 22. In addition, the picketers distributed a leaflet that accused management of making "[u]nwarranted sexual advances" and maintaining a "filthy restroom for women employees." The leaflet also stated that a complaint against the restaurant had been filed by the Board and that Helton had been fired after suggesting that a union be organized. On the morning of September 25, petitioner and three of its co-owners filed a verified complaint against Helton and the other demonstrators in an Arizona state court. Plaintiffs alleged that the defendants had engaged in mass picketing, harassed customers, blocked public ingress to and egress from the restaurant, and created a threat to public safety. The complaint also contained a libel count, alleging that the leaflet contained false and outrageous statements published by the defendants with the malicious intent to injure the plaintiffs. The complaint sought a temporary restraining order and preliminary and permanent injunctive relief, as well as compensatory damages, $500,000 in punitive damages, and appropriate further legal and equitable relief. App. 3-9. After a hearing, the state court declined to enjoin the distribution of leaflets but otherwise issued the requested restraining order. Id., at 19-23. Expedited depositions were also permitted. The defendants retained counsel and, after a hearing on the plaintiffs' motion for a preliminary injunction on November 16, the court dissolved the temporary restraining order and denied preliminary injunctive relief. Id., at 52. Meanwhile, on the day after the state-court suit was filed, Helton filed a second charge with the Board alleging that petitioner had committed a number of new unfair labor practices in connection with the dispute between the waitresses and the restaurant. Among these was a charge that petitioner had filed the civil suit in retaliation for the defendants' protected, concerted activities, and because they had filed *735 charges under the Act. The General Counsel issued a complaint based on these new charges on October 23. As relevant here, the complaint alleged that petitioner, by filing and prosecuting the state suit, was attempting to retaliate against Helton and the others, in violation of §§ 8(a)(1) and (4) of the National Labor Relations Act (NLRA or Act), 29 U.S. C. §§ 158(a)(1) and (4).[1] In December 1978, an Administrative Law Judge (ALJ) held a 4-day consolidated hearing on the two unfair labor practice complaints.[2] On September 27, 1979, the ALJ rendered a decision concluding that petitioner had committed a total of seven unfair labor practices during the course of the *736 labor dispute. 249 N. L. R. B. 155, 168-169 (1980). With regard to the matter presently before us, the ALJ agreed with the General Counsel that the prosecution of the civil suit violated §§ 8(a)(1) and (4). The ALJ applied the rationale of Power Systems, Inc., 239 N. L. R. B. 445, 449-450 (1978), enf. denied, 601 F.2d 936 (CA7 1979), in which the Board held that it is an unfair labor practice for an employer to institute a civil lawsuit for the purpose of penalizing or discouraging its employees from filing charges with the Board or seeking access to the Board's processes. In Power Systems, the Board inferred that the employer had acted with retaliatory animus from the fact that the employer lacked "a reasonable basis upon which to assert" that its suit had merit. Similarly, in the present case, the ALJ found that petitioner's suit lacked a reasonable basis and then concluded from this fact that the suit violated the Act because it was "an attempt to penalize Helton for having filed charges with the Board, and to penalize the other defendants for assisting Helton in her protest of the unfair labor practice committed against her." 249 N. L. R. B., at 165. He bolstered his conclusion by noting the direct evidence that the suit had been filed for a retaliatory purpose, i. e., the threats to "get even with" and "hurt" the defendants. Ibid. The ALJ reached his conclusion that petitioner's state suit lacked a reasonable basis "on the basis of the record and from [his] observation of the witnesses, including their demeanor, and upon the extensive briefs of the parties." Id., at 164. In the view of the ALJ, the "evidence fail[ed] to support" the complaint's allegations that the picketers clogged the sidewalks, harassed customers, or blocked entrances and exits to the restaurant. Id., at 165. The libel count was deemed baseless because "the evidence establishe[d] the truthfulness" of everything stated in the leaflet.[3] *737 On petitioner's appeal, the Board adopted, with minor exceptions, the ALJ's findings, conclusions of law, and recommended order. Id., at 155. Accordingly, petitioner was ordered to undertake a number of remedial measures. Among other things, petitioner was required to withdraw its state-court complaint and to reimburse the defendants for all their legal expenses in connection with the suit. Id., at 169-170. The Court of Appeals enforced the Board's order in its entirety, 660 F.2d 1335 (CA9 1981), holding that substantial evidence supported both the Board's findings that the employer's "lawsuit lacked a reasonable basis in fact, and that it was filed to penalize Helton [and] the picketers for engaging in protected activity." Id., at 1342. Petitioner sought certiorari, urging that it could not properly be enjoined from maintaining its state-court action.[4] We granted the writ, 459 U.S. 942 (1982), and we now vacate and remand for further proceedings. II The question whether the Board may issue a cease-and-desist order to halt an allegedly retaliatory lawsuit filed by an employer in a state court has had a checkered history before the Board.[5] At first, in W. T. Carter & Bro., 90 N. L. R. B. *738 2020, 2023-2024 (1950), where an employer sued and obtained a state-court injunction barring its employees from holding union meetings on company property, a divided Board held that the prosecution of the suit constituted an unfair labor practice. The Board analogized from the common law of malicious prosecution and rejected the employer's contention that its "resort to court proceedings was a lawful exercise of a basic right." The dissent objected that the Board should recognize the employer's right to present its case to a judicial forum, even if its motive in doing so was to interfere with its employees' rights. Id., at 2029 (Herzog, Chairman, dissenting). Ten years later, in Clyde Taylor Co., 127 N. L. R. B. 103, 109 (1960), where the employer obtained an injunction banning peaceful union picketing in protest of unlawful discharges, the Board overruled W. T. Carter and adopted the view of the earlier dissent. During the next 18 years after Clyde Taylor, the Board's decisions do not appear to us to have been entirely consistent.[6]*739 Then, in Power Systems, 239 N. L. R. B., at 450, the Board concluded: "Since we have found that Respondent had no reasonable basis for its lawsuit, . . . the lawsuit had as its purpose the unlawful objective of penalizing [the employee] for filing a charge with the Board." The suit therefore was enjoined as an unfair labor practice. The gravamen of the offense was thus held to be the unlawful objective, which could be inferred by lack of a reasonable basis for the employer's suit. Although the Board in Power Systems purported to distinguish Clyde Taylor and its progeny on the basis that the lawsuit in each of those cases "was not a tactic calculated to restrain employees in the exercise of their rights under the Act," 239 N. L. R. B., at 449, the distinction was illusory. In Clyde Taylor itself the Board found no unfair labor practice despite the ALJ's specific finding that the employer's lawsuit "was for the purpose of preventing his employees from exercising the rights guaranteed to them under the Act, rather than for the purpose of advancing any legitimate interest of his own." 127 N. L. R. B., at 121. Since 1978, the Board has consistently adhered to the Power Systems rule that an employer or union who sues an employee for a retaliatory motive is guilty of a violation of the Act.[7] Under this line of cases, as the Board's brief and its counsel's remarks at *740 oral argument in the present case confirm,[8] the Board does not regard lack of merit in the employer's suit as an independent element of the § 8(a)(1) and § 8(a)(4) unfair labor practice. Rather, it asserts that the only essential element of a violation is retaliatory motive. III A At first blush, the Board's position seems to have substance. Sections 8(a)(1) and (4) of the Act are broad, remedial provisions that guarantee that employees will be able to enjoy their rights secured by § 7 of the Act — including the right to unionize, the right to engage in concerted activity for mutual aid and protection, and the right to utilize the Board's processes — without fear of restraint, coercion, discrimination, or interference from their employer. The Court has liberally construed these laws as prohibiting a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities.[9] A lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation. As the Board has observed, by suing an employee who files charges with the Board or engages in other protected activities, an employer can place its employees on notice that anyone who engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit. Regardless of how unmeritorious the employer's suit is, the employee will most likely have to retain counsel and incur substantial legal expenses *741 to defend against it. Power Systems, supra, at 449. Furthermore, as the Court of Appeals in the present case noted, the chilling effect of a state lawsuit upon an employee's willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive relief. 660 F.2d, at 1343, n. 3. Where, as here, such a suit is filed against hourly-wage waitresses or other individuals who lack the backing of a union, the need to allow the Board to intervene and provide a remedy is at its greatest. There are weighty countervailing considerations, however, that militate against allowing the Board to condemn the filing of a suit as an unfair labor practice and to enjoin its prosecution. In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972), we recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. Accordingly, we construed the antitrust laws as not prohibiting the filing of a lawsuit, regardless of the plaintiff's anticompetitive intent or purpose in doing so, unless the suit was a "mere sham" filed for harassment purposes. Id., at 511. We should be sensitive to these First Amendment values in construing the NLRA in the present context. As the Board itself has recognized: "[G]oing to a judicial body for redress of alleged wrongs . . . stands apart from other forms of action directed at the alleged wrongdoer. The right of access to a court is too important to be called an unfair labor practice solely on the ground that what is sought in the court is to enjoin employees from exercising a protected right." Peddie Buildings, 203 N. L. R. B. 265, 272 (1973), enf. denied on other grounds, 498 F.2d 43 (CA3 1974). See also Clyde Taylor Co., 127 N. L. R. B., at 109. Moreover, in recognition of the States' compelling interest in the maintenance of domestic peace, the Court has construed the Act as not pre-empting the States from providing a civil remedy for conduct touching interests "deeply rooted in local feeling and responsibility." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959). It *742 has therefore repeatedly been held that an employer has the right to seek local judicial protection from tortious conduct during a labor dispute. See, e. g., Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978); Farmer v. Carpenters, 430 U.S. 290 (1977); Linn v. Plant Guard Workers, 383 U.S. 53 (1966); Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954). In Linn v. Plant Guard Workers, supra, at 65, we held that an employer can properly recover damages in a tort action arising out of a labor dispute if it can prove malice and actual injury. See also Farmer v. Carpenters, supra, at 306. If the Board is allowed to enjoin the prosecution of a well-grounded state lawsuit, it necessarily follows that any state plaintiff subject to such an injunction will be totally deprived of a remedy for an actual injury, since the "Board can award no damages, impose no penalty, or give any other relief" to the plaintiff. Linn, supra, at 63. Thus, to the extent the Board asserts the right to declare the filing of a meritorious suit to be a violation of the Act, it runs headlong into the basic rationale of Linn, Farmer, and other cases in which we declined to infer a congressional intent to ignore the substantial state interest "in protecting the health and well-being of its citizens." Farmer, supra, at 302-303. See also Sears, Roebuck & Co. v. Carpenters, supra, at 196; Linn, supra, at 61. Of course, in light of the Board's special competence in applying the general provisions of the Act to the complexities of industrial life, its interpretations of the Act are entitled to deference, even where, as here, its position has not been entirely consistent. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 264-267 (1975); NLRB v. Seven-Up Co., 344 U.S. 344, 347-349 (1953). And here, were only the literal language of §§ 8(a)(1) and 8(a)(4) to be considered, we would be inclined to uphold the Board, because its present construction of the statute is not irrational. Considering the First Amendment right of access to the courts and the state interests identified in cases such as Linn and Farmer, however, we conclude *743 that the Board's interpretation of the Act is untenable. The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the Act. B Although it is not unlawful under the Act to prosecute a meritorious action, the same is not true of suits based on insubstantial claims — suits that lack, to use the term coined by the Board, a "reasonable basis." Such suits are not within the scope of First Amendment protection: "The first amendment interests involved in private litigation — compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts — are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition."[10] Just as false statements are not immunized by the First Amendment right to freedom of speech, see Herbert v. Lando, 441 U.S. 153, 171 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), baseless litigation is not immunized by the First Amendment right to petition. Similarly, the state interests recognized in the Farmer line of cases do not enter into play when the state-court suit has no basis. Since, by definition, the plaintiff in a baseless suit has not suffered a legally protected injury, the State's interest "in protecting the health and well-being of its citizens," Farmer, supra, at 303, is not implicated. States have only a *744 negligible interest, if any, in having insubstantial claims adjudicated by their courts, particularly in the face of the strong federal interest in vindicating the rights protected by the national labor laws. Considerations analogous to these led us in the antitrust context to adopt the "mere sham" exception in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). We should follow a similar course under the NLRA. The right to litigate is an important one, and the Board should consider the evidence with utmost care before ordering the cessation of a state-court lawsuit. In a proper case, however, we believe that Congress intended to allow the Board to provide this remedy. Therefore, we hold that it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by § 7 of the NLRA. IV Having concluded that the prosecution of an improperly motivated suit lacking a reasonable basis constitutes a violation of the Act that may be enjoined by the Board, we now inquire into what steps the Board may take in evaluating whether a state-court suit lacks the requisite basis. Petitioner insists that the Board's prejudgment inquiry must not go beyond the four corners of the complaint. Its position is that as long as the complaint seeks lawful relief that the state court has jurisdiction to grant, the Board must allow the state litigation to proceed. The Board, on the other hand, apparently perceives no limitations on the scope of its pre-judgment determination as to whether a lawsuit has a reasonable basis. In the present case, for example, the ALJ conducted a virtual trial on the merits of petitioner's state-court claims. Based on this de facto trial, the ALJ concluded, in his independent judgment, based in part on "his observation of the witnesses, including their demeanor," that petitioner's suit lacked a reasonable basis. We cannot agree with either party. Although the Board's reasonable-basis inquiry need not be limited to the bare *745 pleadings, if there is a genuine issue of material fact that turns on the credibility of witnesses or on the proper inferences to be drawn from undisputed facts, it cannot, in our view, be concluded that the suit should be enjoined. When a suit presents genuine factual issues, the state plaintiff's First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the State's interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional fact-finding function of the state-court jury or judge.[11] Hence, we conclude that if a state plaintiff is able to present the *746 Board with evidence that shows his lawsuit raises genuine issues of material fact, the Board should proceed no further with the § 8(a)(1)-§ 8(a)(4) unfair labor practice proceedings but should stay those proceedings until the state-court suit has been concluded.[12] In the present case, the only disputed issues in the state lawsuit appear to be factual in nature. There will be cases, however, in which the state plaintiff's case turns on issues of state law or upon a mixed question of fact and law. Just as the Board must refrain from deciding genuinely disputed material factual issues with respect to a state suit, it likewise must not deprive a litigant of his right to have genuine state-law legal questions decided by the state judiciary.[13] While *747 the Board need not stay its hand if the plaintiff's position is plainly foreclosed as a matter of law or is otherwise frivolous, the Board should allow such issues to be decided by the state tribunals if there is any realistic chance that the plaintiff's legal theory might be adopted. In instances where the Board must allow the lawsuit to proceed, if the employer's case in the state court ultimately proves meritorious and he has judgment against the employees, the employer should also prevail before the Board, for the filing of a meritorious lawsuit, even for a retaliatory motive, is not an unfair labor practice. If judgment goes against the employer in the state court, however, or if his suit is withdrawn or is otherwise shown to be without merit, the employer has had its day in court, the interest of the State in providing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the § 8(a)(1) and § 8(a)(4) unfair labor practice case. The employer's suit having proved unmeritorious, the Board would be warranted in taking that fact into account in determining whether the suit had been filed in retaliation for the exercise of the employees' § 7 rights. If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney's fees and other expenses. It may also order any other proper relief that would effectuate the policies of the Act. 29 U.S. C. § 160(c).[14] V The Board argues that, since petitioner has not sought review of the factual findings below that the state suit in the present case lacked a reasonable basis and was filed for a *748 retaliatory motive, the judgment should be affirmed once it is concluded that the Board may enjoin a suit under these circumstances. Petitioner does, however, challenge the right of the Board to issue a cease-and-desist order in the circumstances present here, and the Board did not reach its reasonable-basis determination in accordance with this opinion. As noted above, the ALJ had no reservations about weighing the evidence and making credibility judgments. Based on his own evaluation of the evidence, he concluded that the libel count in petitioner's suit lacked merit, because the statements in the leaflet were true, and that the business interference counts were groundless, because the evidence failed to support petitioner's factual allegations. 249 N. L. R. B., at 164-165. See supra, at 736. It was not the ALJ's province to make such factual determinations. What he should have determined is not whether the statements in the leaflet were true, but rather whether there was a genuine issue as to whether they were knowingly false. Similarly, he should not have decided the facts regarding the business interference counts; rather, he should have limited his inquiry to the question whether petitioner's evidence raised factual issues that were genuine and material. Furthermore, because, in enforcing the Board's order, the Court of Appeals ultimately relied on the fact that "substantial evidence" supported the Board's finding that the prosecution of the lawsuit violated the Act, 660 F.2d, at 1343, the Board's error has not been cured. Accordingly, without expressing a view as to whether petitioner's suit is in fact enjoinable, we shall return this case to the Board for further consideration in light of the proper standards. VI To summarize, we hold that the Board may not halt the prosecution of a state-court lawsuit, regardless of the plaintiff's motive, unless the suit lacks a reasonable basis in fact or law. Retaliatory motive and lack of reasonable basis are both essential prerequisites to the issuance of a cease-and-desist *749 order against a state suit. The Board's reasonable-basis inquiry must be structured in a manner that will preserve the state plaintiff's right to have a state-court jury or judge resolve genuine material factual or state-law legal disputes pertaining to the lawsuit. Therefore, if the Board is called upon to determine whether a suit is unlawful prior to the time that the state court renders final judgment, and if the state plaintiff can show that such genuine material factual or legal issues exist, the Board must await the results of the state-court adjudication with respect to the merits of the state suit. If the state proceedings result in a judgment adverse to the plaintiff, the Board may then consider the matter further and, if it is found that the lawsuit was filed with retaliatory intent, the Board may find a violation and order appropriate relief. In short, then, although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose, the offense is not enjoinable unless the suit lacks a reasonable basis. In view of the foregoing, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with instructions to remand the case to the Board for further proceedings consistent with this opinion.[15] So ordered.

We must decide whether the National Labor Relations Board may issue a cease-and-desist order to halt the prosecution of a state-court civil suit brought by an employer to retaliate against employees for exercising federally protected labor rights, without also finding that the suit lacks a reasonable basis in fact or law. I The present controversy arises out of a labor dispute at "Bill Johnson's Big Apple East," one of four restaurants owned and operated by the petitioner in Phoenix, Ariz. It began on August 8, 1978, when petitioner fired Myrland Helton, one of the most senior waitresses at the restaurant. Believing that her termination was the result of her efforts to organize a union, she filed unfair labor practice charges against the restaurant with the Board. On September 20, after an investigation, the Board's General Counsel issued a complaint. On the same day, Helton, joined by three co-waitresses and a few others, picketed the restaurant. The picketers carried signs asking customers to boycott the restaurant because its management was unfair to the waitresses. Petitioner's manager confronted the picketers and threatened to "get even" with them "if it's the last thing I do." Petitioner's president telephoned the husband *734 of one of the picketing waitresses and impliedly threatened that the couple would "get hurt" and lose their new home if the wife continued to participate in the protest. The picketing continued on September 21 and 22. In addition, the picketers distributed a leaflet that accused management of making "[u]nwarranted sexual advances" and maintaining a "filthy restroom for women employees." The leaflet also stated that a complaint against the restaurant had been filed by the Board and that Helton had been fired after suggesting that a union be organized. On the morning of September 25, petitioner and three of its co-owners filed a verified complaint against Helton and the other demonstrators in an Arizona state court. Plaintiffs alleged that the defendants had engaged in mass picketing, harassed customers, blocked public ingress to and egress from the restaurant, and created a threat to public safety. The complaint also contained a libel count, alleging that the leaflet contained false and outrageous statements published by the defendants with the malicious intent to injure the plaintiffs. The complaint sought a temporary restraining order and preliminary and permanent injunctive relief, as well as compensatory damages, $500,000 in punitive damages, and appropriate further legal and equitable App. 3-9. After a hearing, the state court declined to enjoin the distribution of leaflets but otherwise issued the requested restraining order. Expedited depositions were also permitted. The defendants retained counsel and, after a hearing on the plaintiffs' motion for a preliminary injunction on November 16, the court dissolved the temporary restraining order and denied preliminary injunctive Meanwhile, on the day after the state-court suit was filed, Helton filed a second charge with the Board alleging that petitioner had committed a number of new unfair labor practices in connection with the dispute between the waitresses and the restaurant. Among these was a charge that petitioner had filed the civil suit in retaliation for the defendants' protected, concerted activities, and because they had filed *735 charges under the Act. The General Counsel issued a complaint based on these new charges on October 23. As relevant here, the complaint alleged that petitioner, by filing and prosecuting the state suit, was attempting to retaliate against Helton and the others, in violation of 8(a)(1) and (4) of the National Labor Relations Act (NLRA or Act), 29 U.S. C. 158(a)(1) and (4).[1] In December 1978, an Administrative Law Judge (ALJ) held a 4-day consolidated hearing on the two unfair labor practice complaints.[2] On September 27, the ALJ rendered a decision concluding that petitioner had committed a total of seven unfair labor practices during the course of the *736 labor dispute. 249 N. L. R. B. 155, 168-169 (1980). With regard to the matter presently before us, the ALJ agreed with the General Counsel that the prosecution of the civil suit violated 8(a)(1) and (4). The ALJ applied the rationale of Power Systems, Inc., 239 N. L. R. B. 445, 449-450 enf. denied, in which the Board held that it is an unfair labor practice for an employer to institute a civil lawsuit for the purpose of penalizing or discouraging its employees from filing charges with the Board or seeking access to the Board's processes. In Power Systems, the Board inferred that the employer had acted with retaliatory animus from the fact that the employer lacked "a reasonable basis upon which to assert" that its suit had merit. Similarly, in the present case, the ALJ found that petitioner's suit lacked a reasonable basis and then concluded from this fact that the suit violated the Act because it was "an attempt to penalize Helton for having filed charges with the Board, and to penalize the other defendants for assisting Helton in her protest of the unfair labor practice committed against her." 249 N. L. R. B., He bolstered his conclusion by noting the direct evidence that the suit had been filed for a retaliatory purpose, i. e., the threats to "get even with" and "hurt" the defendants. The ALJ reached his conclusion that petitioner's state suit lacked a reasonable basis "on the basis of the record and from [his] observation of the witnesses, including their demeanor, and upon the extensive briefs of the parties." In the view of the ALJ, the "evidence fail[ed] to support" the complaint's allegations that the picketers clogged the sidewalks, harassed customers, or blocked entrances and exits to the restaurant. The libel count was deemed baseless because "the evidence establishe[d] the truthfulness" of everything stated in the leaflet.[3] *737 On petitioner's appeal, the Board adopted, with minor exceptions, the ALJ's findings, conclusions of law, and recommended order. Accordingly, petitioner was ordered to undertake a number of remedial measures. Among other things, petitioner was required to withdraw its state-court complaint and to reimburse the defendants for all their legal expenses in connection with the suit. The Court of Appeals enforced the Board's order in its entirety, holding that substantial evidence supported both the Board's findings that the employer's "lawsuit lacked a reasonable basis in fact, and that it was filed to penalize Helton [and] the picketers for engaging in protected activity." Petitioner sought certiorari, urging that it could not properly be enjoined from maintaining its state-court action.[4] We granted the writ, and we now vacate and remand for further proceedings. II The question whether the Board may issue a cease-and-desist order to halt an allegedly retaliatory lawsuit filed by an employer in a state court has had a checkered history before the Board.[5] At first, in W. T. Carter & Bro., 90 N. L. R. B. *738 2020, 2023-2024 (1950), where an employer sued and obtained a state-court injunction barring its employees from holding union meetings on company property, a divided Board held that the prosecution of the suit constituted an unfair labor practice. The Board analogized from the common law of malicious prosecution and rejected the employer's contention that its "resort to court proceedings was a lawful exercise of a basic right." The dissent objected that the Board should recognize the employer's right to present its case to a judicial forum, even if its motive in doing so was to interfere with its employees' rights. Ten years later, in Clyde Taylor Co., 127 N. L. R. B. 103, 109 (1960), where the employer obtained an injunction banning peaceful union picketing in protest of unlawful discharges, the Board overruled W. T. Carter and adopted the view of the earlier dissent. During the next 18 years after Clyde Taylor, the Board's decisions do not appear to us to have been entirely consistent.[6]*739 Then, in Power Systems, 239 N. L. R. B., at 450, the Board concluded: "Since we have found that Respondent had no reasonable basis for its lawsuit, the lawsuit had as its purpose the unlawful objective of penalizing [the employee] for filing a charge with the Board." The suit therefore was enjoined as an unfair labor practice. The gravamen of the offense was thus held to be the unlawful objective, which could be inferred by lack of a reasonable basis for the employer's suit. Although the Board in Power Systems purported to distinguish Clyde Taylor and its progeny on the basis that the lawsuit in each of those cases "was not a tactic calculated to restrain employees in the exercise of their rights under the Act," 239 N. L. R. B., the distinction was illusory. In Clyde Taylor itself the Board found no unfair labor practice despite the ALJ's specific finding that the employer's lawsuit "was for the purpose of preventing his employees from exercising the rights guaranteed to them under the Act, rather than for the purpose of advancing any legitimate interest of his own." 127 N. L. R. B., at 121. Since 1978, the Board has consistently adhered to the Power Systems rule that an employer or union who sues an employee for a retaliatory motive is guilty of a violation of the Act.[7] Under this line of cases, as the Board's brief and its counsel's remarks at *740 oral argument in the present case confirm,[8] the Board does not regard lack of merit in the employer's suit as an independent element of the 8(a)(1) and 8(a)(4) unfair labor practice. Rather, it asserts that the only essential element of a violation is retaliatory motive. III A At first blush, the Board's position seems to have substance. Sections 8(a)(1) and (4) of the Act are broad, remedial provisions that guarantee that employees will be able to enjoy their rights secured by 7 of the Act — including the right to unionize, the right to engage in concerted activity for mutual aid and protection, and the right to utilize the Board's processes — without fear of restraint, coercion, discrimination, or interference from their employer. The Court has liberally construed these laws as prohibiting a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities.[9] A lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation. As the Board has observed, by suing an employee who files charges with the Board or engages in other protected activities, an employer can place its employees on notice that anyone who engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit. Regardless of how unmeritorious the employer's suit is, the employee will most likely have to retain counsel and incur substantial legal expenses *741 to defend against it. Power Systems, Furthermore, as the Court of Appeals in the present case noted, the chilling effect of a state lawsuit upon an employee's willingness to engage in protected activity is multiplied where the complaint seeks damages in addition to injunctive n. 3. Where, as here, such a suit is filed against hourly-wage waitresses or other individuals who lack the backing of a union, the need to allow the Board to intervene and provide a remedy is at its greatest. There are weighty countervailing considerations, however, that militate against allowing the Board to condemn the filing of a suit as an unfair labor practice and to enjoin its prosecution. In California Motor Transport we recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. Accordingly, we construed the antitrust laws as not prohibiting the filing of a lawsuit, regardless of the plaintiff's anticompetitive intent or purpose in doing so, unless the suit was a "mere sham" filed for harassment purposes. We should be sensitive to these First Amendment values in construing the NLRA in the present context. As the Board itself has recognized: "[G]oing to a judicial body for redress of alleged wrongs stands apart from other forms of action directed at the alleged wrongdoer. The right of access to a court is too important to be called an unfair labor practice solely on the ground that what is sought in the court is to enjoin employees from exercising a protected right." Peddie Buildings, 203 N. L. R. B. 265, 272 (1973), enf. denied on other grounds, See also Clyde Taylor Co., 127 N. L. R. B., at 109. Moreover, in recognition of the States' compelling interest in the maintenance of domestic peace, the Court has construed the Act as not pre-empting the States from providing a civil remedy for conduct touching interests "deeply rooted in local feeling and responsibility." San Diego Building Trades It *742 has therefore repeatedly been held that an employer has the right to seek local judicial protection from tortious conduct during a labor dispute. See, e. g., Sears, Roebuck & ; ; ; Construction In we held that an employer can properly recover damages in a tort action arising out of a labor dispute if it can prove malice and actual injury. See also If the Board is allowed to enjoin the prosecution of a well-grounded state lawsuit, it necessarily follows that any state plaintiff subject to such an injunction will be totally deprived of a remedy for an actual injury, since the "Board can award no damages, impose no penalty, or give any other relief" to the plaintiff. Thus, to the extent the Board asserts the right to declare the filing of a meritorious suit to be a violation of the Act, it runs headlong into the basic rationale of and other cases in which we declined to infer a congressional intent to ignore the substantial state interest "in protecting the health and well-being of its citizens." See also Sears, Roebuck & ; Of course, in light of the Board's special competence in applying the general provisions of the Act to the complexities of industrial life, its interpretations of the Act are entitled to deference, even where, as here, its position has not been entirely consistent. ; And here, were only the literal language of 8(a)(1) and 8(a)(4) to be considered, we would be inclined to uphold the Board, because its present construction of the statute is not irrational. Considering the First Amendment right of access to the courts and the state interests identified in cases such as and however, we conclude *743 that the Board's interpretation of the Act is untenable. The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the Act. B Although it is not unlawful under the Act to prosecute a meritorious action, the same is not true of suits based on insubstantial claims — suits that lack, to use the term coined by the Board, a "reasonable basis." Such suits are not within the scope of First Amendment protection: "The first amendment interests involved in private litigation — compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts — are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition."[10] Just as false statements are not immunized by the First Amendment right to freedom of speech, see ; baseless litigation is not immunized by the First Amendment right to petition. Similarly, the state interests recognized in the line of cases do not enter into play when the state-court suit has no basis. Since, by definition, the plaintiff in a baseless suit has not suffered a legally protected injury, the State's interest "in protecting the health and well-being of its citizens," is not implicated. States have only a *744 negligible interest, if any, in having insubstantial claims adjudicated by their courts, particularly in the face of the strong federal interest in vindicating the rights protected by the national labor laws. Considerations analogous to these led us in the antitrust context to adopt the "mere sham" exception in California Motor Transport We should follow a similar course under the NLRA. The right to litigate is an important one, and the Board should consider the evidence with utmost care before ordering the cessation of a state-court lawsuit. In a proper case, however, we believe that Congress intended to allow the Board to provide this remedy. Therefore, we hold that it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of retaliating against an employee for the exercise of rights protected by 7 of the NLRA. IV Having concluded that the prosecution of an improperly motivated suit lacking a reasonable basis constitutes a violation of the Act that may be enjoined by the Board, we now inquire into what steps the Board may take in evaluating whether a state-court suit lacks the requisite basis. Petitioner insists that the Board's prejudgment inquiry must not go beyond the four corners of the complaint. Its position is that as long as the complaint seeks lawful relief that the state court has jurisdiction to grant, the Board must allow the state litigation to proceed. The Board, on the other hand, apparently perceives no limitations on the scope of its pre-judgment determination as to whether a lawsuit has a reasonable basis. In the present case, for example, the ALJ conducted a virtual trial on the merits of petitioner's state-court claims. Based on this de facto trial, the ALJ concluded, in his independent judgment, based in part on "his observation of the witnesses, including their demeanor," that petitioner's suit lacked a reasonable basis. We cannot agree with either party. Although the Board's reasonable-basis inquiry need not be limited to the bare *745 pleadings, if there is a genuine issue of material fact that turns on the credibility of witnesses or on the proper inferences to be drawn from undisputed facts, it cannot, in our view, be concluded that the suit should be enjoined. When a suit presents genuine factual issues, the state plaintiff's First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the State's interest in protecting the health and welfare of its citizens, lead us to construe the Act as not permitting the Board to usurp the traditional fact-finding function of the state-court jury or judge.[11] Hence, we conclude that if a state plaintiff is able to present the *746 Board with evidence that shows his lawsuit raises genuine issues of material fact, the Board should proceed no further with the 8(a)(1)- 8(a)(4) unfair labor practice proceedings but should stay those proceedings until the state-court suit has been concluded.[12] In the present case, the only disputed issues in the state lawsuit appear to be factual in nature. There will be cases, however, in which the state plaintiff's case turns on issues of state law or upon a mixed question of fact and law. Just as the Board must refrain from deciding genuinely disputed material factual issues with respect to a state suit, it likewise must not deprive a litigant of his right to have genuine state-law legal questions decided by the state judiciary.[13] While *747 the Board need not stay its hand if the plaintiff's position is plainly foreclosed as a matter of law or is otherwise frivolous, the Board should allow such issues to be decided by the state tribunals if there is any realistic chance that the plaintiff's legal theory might be adopted. In instances where the Board must allow the lawsuit to proceed, if the employer's case in the state court ultimately proves meritorious and he has judgment against the employees, the employer should also prevail before the Board, for the filing of a meritorious lawsuit, even for a retaliatory motive, is not an unfair labor practice. If judgment goes against the employer in the state court, however, or if his suit is withdrawn or is otherwise shown to be without merit, the employer has had its day in court, the interest of the State in providing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the 8(a)(1) and 8(a)(4) unfair labor practice case. The employer's suit having proved unmeritorious, the Board would be warranted in taking that fact into account in determining whether the suit had been filed in retaliation for the exercise of the employees' 7 rights. If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney's fees and other expenses. It may also order any other proper relief that would effectuate the policies of the Act. 29 U.S. C. 160(c).[14] V The Board argues that, since petitioner has not sought review of the factual findings below that the state suit in the present case lacked a reasonable basis and was filed for a *748 retaliatory motive, the judgment should be affirmed once it is concluded that the Board may enjoin a suit under these circumstances. Petitioner does, however, challenge the right of the Board to issue a cease-and-desist order in the circumstances present here, and the Board did not reach its reasonable-basis determination in accordance with this opinion. As noted above, the ALJ had no reservations about weighing the evidence and making credibility judgments. Based on his own evaluation of the evidence, he concluded that the libel count in petitioner's suit lacked merit, because the statements in the leaflet were true, and that the business interference counts were groundless, because the evidence failed to support petitioner's factual allegations. 249 N. L. R. B., -165. See It was not the ALJ's province to make such factual determinations. What he should have determined is not whether the statements in the leaflet were true, but rather whether there was a genuine issue as to whether they were knowingly false. Similarly, he should not have decided the facts regarding the business interference counts; rather, he should have limited his inquiry to the question whether petitioner's evidence raised factual issues that were genuine and material. Furthermore, because, in enforcing the Board's order, the Court of Appeals ultimately relied on the fact that "substantial evidence" supported the Board's finding that the prosecution of the lawsuit violated the Act, the Board's error has not been cured. Accordingly, without expressing a view as to whether petitioner's suit is in fact enjoinable, we shall return this case to the Board for further consideration in light of the proper standards. VI To summarize, we hold that the Board may not halt the prosecution of a state-court lawsuit, regardless of the plaintiff's motive, unless the suit lacks a reasonable basis in fact or law. Retaliatory motive and lack of reasonable basis are both essential prerequisites to the issuance of a cease-and-desist *749 order against a state suit. The Board's reasonable-basis inquiry must be structured in a manner that will preserve the state plaintiff's right to have a state-court jury or judge resolve genuine material factual or state-law legal disputes pertaining to the lawsuit. Therefore, if the Board is called upon to determine whether a suit is unlawful prior to the time that the state court renders final judgment, and if the state plaintiff can show that such genuine material factual or legal issues exist, the Board must await the results of the state-court adjudication with respect to the merits of the state suit. If the state proceedings result in a judgment adverse to the plaintiff, the Board may then consider the matter further and, if it is found that the lawsuit was filed with retaliatory intent, the Board may find a violation and order appropriate In short, then, although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose, the offense is not enjoinable unless the suit lacks a reasonable basis. In view of the foregoing, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with instructions to remand the case to the Board for further proceedings consistent with this opinion.[15] So ordered.

Justice Powell

second_dissenting

Fare v. Michael C.

https://www.courtlistener.com/opinion/110117/fare-v-michael-c/

https://www.courtlistener.com/api/rest/v3/clusters/110117/

1978-133

Although I agree with the Court that the Supreme Court of California misconstrued Miranda v. Arizona, 384 U.S. 436 (1966),[1] I would not reverse the California court's judgment. This Court repeatedly has recognized that "the greatest care" must be taken to assure that an alleged confession of a juvenile was voluntary. See, e. g., In re Gault, 387 U.S. 1, 55 *733 (1967); Gallegos v. Colorado, 370 U.S. 49, 54 (1962); Haley v. Ohio, 332 U.S. 596, 599-600 (1948) (plurality opinion). Respondent was a young person, 16 years old at the time of his arrest and the subsequent prolonged interrogation at the station house. Although respondent had had prior brushes with the law, and was under supervision by a probation officer, the taped transcript of his interrogation—as well as his testimony at the suppression hearing—demonstrates that he was immature, emotional,[2] and uneducated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected. App. 54-82. When given Miranda warnings and asked whether he desired an attorney, respondent requested permission to "have my probation officer here," a request that was refused. Id., at 55. That officer testified later that he had communicated frequently with respondent, that respondent had serious and "extensive" family problems, and that the officer had instructed respondent to call him immediately "at any time he has a police contact, even if they stop him and talk to him on the street." Id., at 26-31.[3] The reasons given by the probation officer for having so instructed his charge were substantially the same reasons that prompt this Court to examine with special care the circumstances under which a minor's alleged confession was obtained. After stating that respondent had been "going through problems," the officer observed that "many times the kids don't understand what is going on, and what they are supposed to do relative to police . . . ." Id., at 29. This view of the limited understanding of the average 16-year-old was borne out by respondent's question when, *734 during interrogation, he was advised of his right to an attorney: "How I know you guys won't pull no police officer in and tell me he's an attorney?" Id., at 55. It was during this part of the interrogation that the police had denied respondent's request to "have my probation officer here." Ibid. The police then proceeded, despite respondent's repeated denial of any connection to the murder under investigation, see id., at 56-60, persistently to press interrogation until they extracted a confession. In In re Gault, in addressing police interrogation of detained juveniles, the Court stated: "If counsel was not present for some permissible reason when an admission was obtained [from a child], the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." 387 U.S., at 55. It is clear that the interrogating police did not exercise "the greatest care" to assure that respondent's "admission was voluntary."[4] In the absence of counsel, and having refused to call the probation officer, they nevertheless engaged in protracted interrogation. Although I view the case as close, I am not satisfied that this particular 16-year-old boy, in this particular situation, was subjected to a fair interrogation free from inherently coercive circumstances. For these reasons, I would affirm the judgment of the Supreme Court of California.

Although I agree with the Court that the Supreme Court of California misconstrued[1] I would not reverse the California court's judgment. This Court repeatedly has recognized that "the greatest care" must be taken to assure that an alleged confession of a juvenile was voluntary. See, e. g., In re Gault, ; ; Respondent was a young person, 16 years old at the time of his arrest and the subsequent prolonged interrogation at the station house. Although respondent had had prior brushes with the law, and was under supervision by a probation officer, the taped transcript of his interrogation—as well as his testimony at the suppression hearing—demonstrates that he was immature, emotional,[2] and uneducated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected. App. -82. When given Miranda warnings and asked whether he desired an attorney, respondent requested permission to "have my probation officer here," a request that was refused. That officer testified later that he had communicated frequently with respondent, that respondent had serious and "extensive" family problems, and that the officer had instructed respondent to call him immediately "at any time he has a police contact, even if they stop him and talk to him on the street."[3] The reasons given by the probation officer for having so instructed his charge were substantially the same reasons that prompt this Court to examine with special care the circumstances under which a minor's alleged confession was obtained. After stating that respondent had been "going through problems," the officer observed that "many times the kids don't understand what is going on, and what they are supposed to do relative to police" This view of the limited understanding of the average 16-year-old was borne out by respondent's question when, *734 during interrogation, he was advised of his right to an attorney: "How I know you guys won't pull no police officer in and tell me he's an attorney?" It was during this part of the interrogation that the police had denied respondent's request to "have my probation officer here." The police then proceeded, despite respondent's repeated denial of any connection to the murder under investigation, see persistently to press interrogation until they extracted a confession. In In re Gault, in addressing police interrogation of detained juveniles, the Court stated: "If counsel was not present for some permissible reason when an admission was obtained [from a child], the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." 387 U.S., It is clear that the interrogating police did not exercise "the greatest care" to assure that respondent's "admission was voluntary."[4] In the absence of counsel, and having refused to call the probation officer, they nevertheless engaged in protracted interrogation. Although I view the case as close, I am not satisfied that this particular 16-year-old boy, in this particular situation, was subjected to a fair interrogation free from inherently coercive circumstances. For these reasons, I would affirm the judgment of the Supreme Court of California.

Justice Sotomayor

majority

Green v. Brennan

https://www.courtlistener.com/opinion/3205842/green-v-brennan/

https://www.courtlistener.com/api/rest/v3/clusters/3205842/

2015-021

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. §2000e et seq., prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, or retaliating against their employ- ees for opposing or seeking relief from such discrimination. Before a federal civil servant can sue his employer for violating Title VII, he must, among other things, “initiate contact” with an Equal Employment Opportunity counse- lor at his agency “within 45 days of the date of the matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1) (2015). If an employee claims he has been fired for discrimina- tory reasons, the “matter alleged to be discriminatory” includes the discharge itself and the 45-day limitations period begins running only after the employee is fired. We address here when the limitations period begins to run for an employee who was not fired, but resigns in the face of intolerable discrimination—a “constructive” dis- charge. We hold that, in such circumstances, the “matter alleged to be discriminatory” includes the employee’s 2 GREEN v. BRENNAN Opinion of the Court resignation, and that the 45-day clock for a constructive discharge begins running only after the employee resigns. I We recite the following facts in the light most favorable to petitioner Marvin Green, against whom the District Court entered summary judgment. Green is a black man who worked for the Postal Service for 35 years. In 2008, he was serving as the postmaster for Englewood, Colorado when he applied for a promotion to the vacant postmaster position in nearby Boulder. He was passed over. Shortly thereafter, Green complained he was denied the promotion because of his race. Green’s relations with his supervisors crumbled follow- ing his complaint. Tensions peaked on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail—a criminal offense. See 18 U.S. C. §1703. They informed Green that the Postal Service’s Office of the Inspector General (OIG) was inves- tigating the charge and that OIG agents had arrived to interview him as part of their investigation. After Green met with the OIG agents, his supervisors gave him a letter reassigning him to off-duty status until the matter was resolved. Even though the OIG agents reported to Green’s supervisors that no further investigation was warranted, the supervisors continued to represent to Green that “the OIG is all over this” and that the “criminal” charge “could be a life changer.” App. 53. On December 16, 2009, Green and the Postal Service signed an agreement whose meaning remains disputed. Relevant here, the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood. The agreement also apparently gave Green a choice: effective March 31, 2010, he could either retire or report for duty in Wamsutter, Wyoming— population 451—at a salary considerably lower than what Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court he earned in his Denver suburb. Green chose to retire and submitted his resignation to the Postal Service on Febru- ary 9, 2010, effective March 31. On March 22—41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16—Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive dis- charge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint.1 He alleged that the choice he had been given effectively forced his resigna- tion in violation of Title VII. Green eventually filed suit in the Federal District Court for the District of Colorado, alleging, inter alia, that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discrimina- tory,” as required by 29 CFR §1614.105(a)(1). The District Court granted the Postal Service’s motion for summary judgment. The Tenth Circuit affirmed, holding that the “matter alleged to be discriminatory” encompassed only the Postal Service’s discriminatory actions and not Green’s inde- pendent decision to resign on February 9. Green v. Do­ nahue, 760 F.3d 1135 (2014). Therefore, the 45-day limi- tations period started running when both parties signed the settlement agreement on December 16, 2009. Accord- ingly, because 96 days passed between the agreement and when Green contacted an EEO counselor on March 22, —————— 1 We assume without deciding that it is unlawful for a federal agency to retaliate against a civil servant for complaining of discrimination. See Gómez-Pérez v. Potter, 553 U.S. 474, 488, n. 4 (2008); Brief for Respondent 2. 4 GREEN v. BRENNAN Opinion of the Court 2010, his constructive-discharge claim was time barred. Two other Courts of Appeals agree with the Tenth Cir- cuit’s view that the limitations period begins to run for a constructive-discharge claim after the employer’s last discriminatory act.2 As the Tenth Circuit recognized, however, other Courts of Appeals have held that the limi- tations period for a constructive-discharge claim does not begin to run until the employee resigns.3 We granted certiorari to resolve this split. 575 U. S. ___ (2015). Because no party here supports the Tenth Cir- cuit’s holding that an employee’s resignation is not part of the “matter alleged to be discriminatory,” we appointed Catherine M. A. Carroll to defend that aspect of the judgment below. 576 U. S. ___ (2015). She has ably discharged her duties and the Court thanks her for her service. II Before a federal civil servant can sue his employer in court for discriminating against him in violation of Title VII, he must first exhaust his administrative remedies. 42 U.S. C. §2000e–16(c). To exhaust those remedies, the Equal Employment Opportunity Commission (EEOC) has promulgated regulations that require, among other things, that a federal employee consult with an EEO counselor prior to filing a discrimination lawsuit. Specifically, he “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective —————— 2 Mayers v. Laborers’ Health and Safety Fund of North America, 478 F.3d 364, 370 (CADC 2007) (per curiam); Davidson v. Indiana- American Water Works, 953 F.2d 1058, 1059 (CA7 1992). 3 Flaherty v. Metromail Corp., 235 F.3d 133, 138 (CA2 2000); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1111 (CA9 1998); Hukkanen v. Operating Engineers, 3 F.3d 281, 285 (CA8 1993); Young v. National Center for Health Servs. Research, 828 F.2d 235, 238 (CA4 1987). Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court date of the action.” 29 CFR §1614.105(a)(1).4 The timeli- ness of Green’s claim therefore turns on our interpretation of this EEOC regulation implementing Title VII.5 Although we begin our interpretation of the regulation with its text, the text in this case is not particularly help- ful. Nowhere does §1614.105 indicate whether a “matter alleged to be discriminatory” in a constructive-discharge claim includes the employee’s resignation, as Green con- tends, or only the employer’s discriminatory conduct, as amica contends. The word “matter” simply means “an allegation forming the basis of a claim or defense,” Black’s Law Dictionary 1126 (10th ed. 2014)—a term that could readily apply to a discrimination-precipitated resignation. So the “matter alleged to be discriminatory” could refer to all of the allegations underlying a claim of discrimina- tion, including the employee’s resignation, or only to those allegations concerning the employer’s discrimina- tory conduct. We therefore must turn to other canons of interpretation. The most helpful canon in this context is “the ‘standard rule’ ” for limitations periods. Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418 (2005). Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’ ” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes —————— 4 Thisregulation, applicable to federal employees only, has a statutory analog for private-sector Title VII plaintiffs, who are required to file a charge with the EEOC within 180 or 300 days “after the alleged unlaw- ful employment practice occurred.” 42 U.S. C. §2000e–5(e)(1). Al- though the language is different, the EEOC treats the federal and private-sector employee limitations periods as identical in operation. See EEOC Compliance Manual: Threshold Issues §2–IV(C)(1), n. 179. 5 Green does not contend that his alleged constructive discharge is a “personnel action.” See Brief for Petitioner 17–18; Green v. Donahoe, 760 F.3d 1135, 1144, n. 3 (CA10 2014). We therefore address the “matter alleged to be discriminatory” clause only. 6 GREEN v. BRENNAN Opinion of the Court until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997). Although the standard rule can be displaced such that the limitations period begins to run before a plaintiff can file a suit, we “will not infer such an odd result in the absence of any such indication” in the text of the limitations period. Reiter v. Cooper, 507 U.S. 258, 267 (1993). Applying this default rule, we are persuaded that the “matter alleged to be discriminatory” in a constructive- discharge claim necessarily includes the employee’s resig- nation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, noth- ing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here. We therefore interpret the term “matter alleged to be discriminatory” for a constructive-discharge claim to include the date Green resigned. A The standard rule for limitations periods requires us first to determine what is a “complete and present cause of action” for a constructive-discharge claim. We hold that such a claim accrues only after an employee resigns. The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). When the employee resigns in the face of such circumstances, Title VII treats that resignation as tanta- Cite as: 578 U. S. ____ (2016) 7 Opinion of the Court mount to an actual discharge. Id., at 142–143. A claim of constructive discharge therefore has two basic elements. A plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt com- pelled to resign. Id., at 148. But he must also show that he actually resigned. Ibid. (“A constructive discharge involves both an employee’s decision to leave and precipi- tating conduct . . .” (emphasis added)). In other words, an employee cannot bring a constructive-discharge claim until he is constructively discharged. Only after both elements are satisfied can he file suit to obtain relief. Under the standard rule for limitations periods, the limitations period should begin to run for a constructive- discharge claim only after a plaintiff resigns. At that point—and not before—he can file a suit for constructive discharge. So only at that point—and not before—does he have a “complete and present” cause of action. And only after he has a complete and present cause of action does a limitations period ordinarily begin to run. Cf. Mac’s Shell Service, Inc. v. Shell Oil Products Co., 559 U.S. 175, 189– 190 (2010) (the limitations period for a constructive termi- nation of a franchise agreement starts running when the agreement is constructively terminated). In this respect, a claim that an employer constructively discharged an employee is no different from a claim that an employer actually discharged an employee. An ordi- nary wrongful discharge claim also has two basic ele- ments: discrimination and discharge. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); 1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 21–33 (5th ed. 2012) (Lindemann) (“The sine qua non of a discharge case is, of course, a discharge”). The claim accrues when the employee is fired. At that point—and not before—he has a “complete and present cause of action.” So at that point—and not 8 GREEN v. BRENNAN Opinion of the Court before—the limitations period begins to run. With claims of either constructive discharge or actual discharge, the standard rule thus yields the same result: a limitations period should not begin to run until after the discharge itself. In light of this rule, we interpret the term “matter alleged to be discriminatory” in §1614.105 to refer to all of the elements that make up a constructive- discharge claim—including an employee’s resignation. B Although the standard rule dictates that a limitations period should commence only after a claim accrues, there is an exception to that rule when the text creating the limitations period clearly indicates otherwise. See, e.g., Dodd v. United States, 545 U.S. 353, 360 (2005). Nothing in the text of Title VII or the regulation, however, suggests that the standard rule should be displaced here. To the contrary, the language of the regulation confirms our application of the default rule. As noted previously, the word “matter” generally refers to “an allegation forming the basis of a claim or defense.” Black’s Law Dictionary 1126. The natural reading of “matter alleged to be discriminatory” thus refers to the allegation forming the basis of the discrimination claim— here, a claim of constructive discharge. And as discussed above, a constructive discharge claim requires two basic allegations: discriminatory conduct by the employer that leads to resignation of the employee. So long as those acts are part of the same, single claim under consideration, they are part of the “matter alleged to be discriminatory,” whatever the role of discrimination in each individual element of the claim. Cf. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115–121 (2002) (holding that a hostile-work-environment claim is a single “unlawful employment practice” that includes every act composing that claim, whether those acts are inde- Cite as: 578 U. S. ____ (2016) 9 Opinion of the Court pendently actionable or not). C Finally, we are also persuaded that applying the stand- ard rule for limitations periods to constructive discharge makes a good deal of practical sense. Starting the limita- tions clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982) (holding that the Title VII limitations period should be construed to “honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement”). This Court has recognized “that the limitations perio[d] should not commence to run so soon that it becomes diffi- cult for a layman to invoke the protection of the civil rights statutes.” Delaware State College v. Ricks, 449 U.S. 250, 262, n. 16 (1980). If the limitations period begins to run following the employer’s precipitating dis- criminatory conduct, but before the employee’s resigna- tion, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged. Moreover, forcing an employee to lodge a complaint before he can bring a claim for constructive discharge places that employee in a difficult situation. An employee who suffered discrimination severe enough that a reason- able person in his shoes would resign might nevertheless force himself to tolerate that discrimination for a period of time. He might delay his resignation until he can afford to 10 GREEN v. BRENNAN Opinion of the Court leave. Or he might delay in light of other circumstances, as in the case of a teacher waiting until the end of the school year to resign. Tr. 17. And, if he feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination—an additional adverse consequence that he may have to disclose in future job applications. III Amica and the dissent read “matter alleged to be dis- criminatory” as having a clear enough meaning to displace our reliance on the standard rule for limitations periods. They argue that “matter” is not equivalent to “claim” or “cause of action,” and that the use of the phrase “matter alleged to be discriminatory” is a sufficiently clear state- ment that the standard claim accrual rule should not apply. According to amica and the dissent, “matter” refers only to the discriminatory acts of the Postal Service, not Green’s resignation. We disagree. There is nothing inherent in the phrase “matter alleged to be discriminatory” that clearly limits it to employer conduct. Rather, as discussed above, the term can reasonably be interpreted to include the factual basis for a claim. Green is not alleging just that the Postal Service discriminated against him. He claims that the discrimination left him no choice but to resign. Amica and the dissent dispute that a constructive dis- charge is a separate claim. According to amica and the dissent, the constructive-discharge doctrine merely allows a plaintiff to expand any underlying discrimination claim to include the damages from leaving his job, thereby in- creasing his available remedies. See 1 Lindemann 21–49 (constructive discharge allows plaintiff to seek backpay, front pay, or reinstatement). In support of this argument, amica and the dissent emphasize this Court’s statement in Suders that “[u]nder the constructive discharge doctrine, Cite as: 578 U. S. ____ (2016) 11 Opinion of the Court an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes.” 542 U.S., at 141 (em- phasis added); see also id., at 148 (“[A] constructive dis- charge is functionally the same as an actual termination in damages-enhancing respects”). But the Court did not hold in Suders that a constructive discharge is tantamount to a formal discharge for remedial purposes exclusively. To the contrary, it expressly held that constructive discharge is a claim distinct from the underlying discriminatory act. Id., at 149 (holding that a hostile-work-environment claim is a “lesser included component” of the “graver claim of hostile-environment constructive discharge”). This holding was no mere dic- tum. See id., at 142 (“[A] claim for constructive discharge lies under Title VII”). We see no reason to excise an em- ployee’s resignation from his constructive-discharge claim for purposes of the limitations period. The concurrence sets out a theory that there are two kinds of constructive discharge for purposes of the limita- tions period: constructive discharge “claims” where the employer “makes conditions intolerable with the specific discriminatory intent of forcing the employee to resign,” and constructive discharge “damages” where the employer does not intend to force the employee to quit, but the discriminatory conditions of employment are so intolerable that the employee quits anyway. Post, at 6–11 (ALITO, J., concurring in judgment). According to the concurrence, the limitations period does not begin to run until an em- ployee resigns under the “claim” theory of constructive discharge, but begins at the last discriminatory act before resignation under the “damages” theory. This sometimes-a-claim-sometimes-not theory of con- structive discharge is novel and contrary to the construc- tive discharge doctrine. The whole point of allowing an employee to claim “constructive” discharge is that in cir- 12 GREEN v. BRENNAN Opinion of the Court cumstances of discrimination so intolerable that a reason- able person would resign, we treat the employee’s resigna- tion as though the employer actually fired him. Suders, 542 U.S., at 141–143.6 We do not also require an em- ployee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the dis- crimination so bad that he had to quit, but also that his quitting was his employer’s plan all along. Amica and the dissent also argue that their interpreta- tion is more consistent with this Court’s prior precedent on when the limitations period begins to run for discrimi- nation claims. Under their interpretation, Green’s resig- nation was not part of the discriminatory “matter,” but was instead the mere inevitable consequence of the Postal Service’s discriminatory conduct, and therefore cannot be used to extend the limitations period. See Brief for Court- Appointed Amica Curiae in Support of Judgment Below —————— 6 The concurrence suggests that its theory is consistent with state- ments in the Suders opinion that constructive discharge is akin to an actual discharge “ ‘for remedial purposes’ ” and in “ ‘damages-enhancing respects.’ ” Post, at 10 (opinion of ALITO, J.) (quoting Suders, 542 U.S., at 141, 148). This ignores the more obvious explanation for this qualifi- cation: The Court was distinguishing between the merits of a claim of constructive discharge generally, where resignation is imputed as a discriminatory act of the employer, and the affirmative defense avail- able to an employer in a hostile work environment claim specifically, which allows an employer to defend against a hostile work environment claim in certain circumstances if it took no “ ‘official act’ ” against the employee. Id., at 143–146. The Court in Suders recognized that it would be bizarre to always impute resignation as an “official act” of the employer in a constructive discharge hostile work environment case and prohibit the employer from relying on the no-“official-act” defense, because it would make it easier to prove the “graver” claim of a con- structive discharge hostile work environment than to prove a hostile work environment claim. Id., at 148–149. Thus, the Court declined to hold that resignation in a constructive discharge case was categorically an “official act” in all instances. Ibid. In other words, the Court sought a measure of parity between constructive discharge and ordinary discrimination—parity that we extend to the limitations period here. Cite as: 578 U. S. ____ (2016) 13 Opinion of the Court 21–27 (Brief for Amica Curiae) (citing Ledbetter v. Good­ year Tire & Rubber Co., 550 U.S. 618 (2007), overruled by statute, Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5; Delaware State College v. Ricks, 449 U.S. 250; United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)); post, at 3–7 (THOMAS, J., dissenting) (citing Ricks, 449 U.S. 250, and Chardon v. Fernandez, 454 U.S. 6 (1981) (per curiam)). Similarly, the concurrence argues these cases require that an act done with discriminatory intent must occur within the limitations period. Post, at 4 (opinion of ALITO, J.). But these cases are consistent with the standard rule that a limitations period begins to run after a claim ac- crues, not after an inevitable consequence of that claim. In Ricks, for example, the Court considered the discrimi- nation claim of a college faculty member who was denied tenure and given a 1-year “ ‘terminal’ ” contract for his last year teaching. 449 U.S., at 258. The plaintiff ’s claim accrued—and he could have sued—when the college in- formed him he would be denied tenure and gave him “explicit notice that his employment would end” when his 1-year contract expired. Ibid. The Court held that the limitations period began to run on that date, and not after his 1-year contract expired. That final year of teaching was merely an inevitable consequence of the tenure denial the plaintiff claimed was discriminatory. Green’s resignation, by contrast, is not merely an inevi- table consequence of the discrimination he suffered; it is an essential part of his constructive-discharge claim. That is, Green could not sue for constructive discharge until he actually resigned. Of course, Green could not resign and then wait until the consequences of that resignation be- came most painful to complain. For example, he could not use the date of the expiration of his health insurance after his resignation to extend the limitations period. But the “inevitable consequence” principle of Ricks, Ledbetter, and Evans does not change the focus of the limitations period, 14 GREEN v. BRENNAN Opinion of the Court which remains on the claim of discrimination itself. See Lewis v. Chicago, 560 U.S. 205, 214 (2010) (holding Evans and its progeny “establish only that a Title VII plaintiff must show a present violation within the limitations period” (internal quotation marks omitted)); National Railroad Passenger Corporation v. Morgan, 536 U.S., at 115–121 (holding limitations period for hostile-work- environment claim runs from the last act composing the claim).7 For a constructive discharge, the claim does not exist until the employee resigns. Finally, amica contends that her interpretation of the regulation better advances the EEOC’s goal of promoting conciliation for federal employees through early, informal contact with an EEO counselor. See Exec. Order No. 11478, §4, 34 Fed. Reg. 12986 (1969) (counseling for federal employees “shall encourage the resolution of employee problems on an informal basis”). The dissent suggests that our holding will make a discrimination victim the master of his complaint, permitting him to “ ‘exten[d] the limitation[s period] indefinitely’ ” by waiting to resign. Post, at 7 (opinion of THOMAS, J.). The concurrence claims that an employee who relies on the limitations period in waiting —————— 7 The dissent relies on Morgan’s other holding that, unlike a hostile- work-environment claim that may comprise many discriminatory acts, discrete claims of discrimination based on independent discriminatory acts cannot be aggregated to extend the limitations period. See post, at 3 (opinion of THOMAS, J.) (citing 536 U.S., at 109–113). But this just proves the point: The analysis for the limitations period turns on the nature of the specific legal claim at issue. In Morgan, the Court noted that even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period. Id., at 117 (“It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations . . . ”). Cite as: 578 U. S. ____ (2016) 15 Opinion of the Court to resign is “doubly out of luck” if his otherwise-meritorious discrimination claim is time barred and he cannot show the discrimination was so intolerable that it amounted to a constructive discharge. Post, at 13 (opinion of ALITO, J.). These concerns are overblown. Amica may be right that it is more difficult to achieve conciliation after an employee resigns. But the same is true for a federal civil servant who is fired by his agency for what the employee believes to be a discriminatory purpose. And neither decision is necessarily permanent—a resignation or a termination may be undone after an employee contacts a counselor. Conciliation, while important, does not warrant treating a constructive discharge different from an actual discharge for purposes of the limitations period. As for the dissent’s fear, we doubt that a victim of em- ployment discrimination will continue to work in an intol- erable environment merely because he can thereby extend the limitations period for a claim of constructive dis- charge. If anything, a plaintiff who wishes to prevail on the merits of his constructive discharge claim has the opposite incentive. A claim of constructive discharge requires proof of a causal link between the allegedly intol- erable conditions and the resignation. See 1 Lindemann 21–45, and n. 106. And as for the concurrence’s double-loser concern, no plaintiff would be well advised to delay pursuing what he believes to be a meritorious non-constructive-discharge- discrimination claim on the ground that a timely filed constructive discharge claim could resuscitate other time- lapsed claims. The 45-day limitations period begins run- ning on any separate underlying claim of discrimina- tion when that claim accrues, regardless of whether the plaintiff eventually claims constructive discharge. The limitations-period analysis is always conducted claim by claim. 16 GREEN v. BRENNAN Opinion of the Court IV Our decision that a resignation triggers the limitations period for a constructive-discharge claim raises the ques- tion of when precisely an employee resigns. Here, Green and the Government agree that an employee resigns when he gives his employer definite notice of his intent to re- sign. If an employee gives “two weeks’ notice”—telling his employer he intends to leave after two more weeks of employment—the limitations period begins to run on the day he tells his employer, not his last day at work. (This issue was not addressed by the Tenth Circuit and, accord- ingly, amica takes no position on it. See Brief for Amica Curiae 42.) We agree. A notice rule flows directly from this Court’s precedent. In Ricks, 449 U.S., at 250, and Chardon v. Fernandez, 454 U.S. 6, the Court explained that an ordi- nary wrongful-discharge claim accrues—and the limita- tions period begins to run—when the employer notifies the employee he is fired, not on the last day of his employ- ment. Ricks, 449 U.S., at 258–259; Chardon, 454 U.S., at 8. Likewise, here, we hold that a constructive-discharge claim accrues—and the limitations period begins to run— when the employee gives notice of his resignation, not on the effective date of that resignation. One factual issue remains: when exactly Green gave the Postal Service notice of his resignation. The Government argues that Green resigned on December 16, 2009—when he signed the settlement agreement—and that his claim is therefore still time barred. Green argues that he did not resign until February 9, 2010—when he submitted his retirement paperwork—and that his claim is therefore timely. We need not resolve this issue. Having concluded that the limitations period for Green’s constructive- discharge claim runs from the date he gave notice of his resignation, we leave it to the Tenth Circuit to determine when this in fact occurred. Cite as: 578 U. S. ____ (2016) 17 Opinion of the Court * * * For these reasons, we vacate the judgment of the Tenth Circuit and remand the case for further proceedings con- sistent with this opinion. So ordered. Cite as: 578 U. S. ____ (2016) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 14–613 _________________ MARVIN GREEN, PETITIONER v. MEGAN J. BRENNAN, POSTMASTER GENERAL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [May 23, 2016] JUSTICE ALITO, concurring in the judgment.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. et seq., prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, or retaliating against their employ- ees for opposing or seeking relief from such discrimination. Before a federal civil servant can sue his employer for violating Title VII, he must, among other things, “initiate contact” with an Equal Employment Opportunity counse- lor at his agency “within 45 days of the date of the matter alleged to be discriminatory.” (a)(1) (5). If an employee claims he has been fired for discrimina- tory reasons, the “matter alleged to be discriminatory” includes the discharge itself and the 45-day limitations period begins running only after the employee is fired. We address here when the limitations period begins to run for an employee who was not fired, but resigns in the face of intolerable discrimination—a “constructive” dis- charge. We hold that, in such circumstances, the “matter alleged to be discriminatory” includes the employee’s 2 GREEN v. BRENNAN Opinion of the Court resignation, and that the 45-day clock for a constructive discharge begins running only after the employee resigns. I We recite the following facts in the light most favorable to petitioner Marvin Green, against whom the District Court entered summary judgment. Green is a black man who worked for the Postal Service for 35 years. In 2008, he was serving as the postmaster for Englewood, Colorado when he applied for a promotion to the vacant postmaster position in nearby Boulder. He was passed over. Shortly thereafter, Green complained he was denied the promotion because of his race. Green’s relations with his supervisors crumbled follow- ing his complaint. Tensions peaked on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail—a criminal offense. See 18 U.S. C. They informed Green that the Postal Service’s Office of the Inspector General (OIG) was inves- tigating the charge and that OIG agents had arrived to interview him as part of their investigation. After Green met with the OIG agents, his supervisors gave him a letter reassigning him to off-duty status until the matter was resolved. Even though the OIG agents reported to Green’s supervisors that no further investigation was warranted, the supervisors continued to represent to Green that “the OIG is all over this” and that the “criminal” charge “could be a life changer.” App. 53. On December 16, 2009, Green and the Postal Service signed an agreement whose meaning remains disputed. Relevant here, the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood. The agreement also apparently gave Green a choice: effective March 31, 0, he could either retire or report for duty in Wamsutter, Wyoming— population 451—at a salary considerably lower than what Cite as: 578 U. S. (6) 3 Opinion of the Court he earned in his Denver suburb. Green chose to retire and submitted his resignation to the Postal Service on Febru- ary 9, 0, effective March 31. On March 22—41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16—Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive dis- charge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint.1 He alleged that the choice he had been given effectively forced his resigna- tion in violation of Title VII. Green eventually filed suit in the Federal District Court for the District of Colorado, alleging, inter alia, that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discrimina- tory,” as required by (a)(1). The District Court granted the Postal Service’s motion for summary judgment. The Tenth Circuit affirmed, holding that the “matter alleged to be discriminatory” encompassed only the Postal Service’s discriminatory actions and not Green’s inde- pendent decision to resign on February 9. Therefore, the 45-day limi- tations period started running when both parties signed the settlement agreement on December 16, 2009. Accord- ingly, because 96 days passed between the agreement and when Green contacted an EEO counselor on March 22, —————— 1 We assume without deciding that it is unlawful for a federal agency to retaliate against a civil servant for complaining of discrimination. See ; Brief for Respondent 2. 4 GREEN v. BRENNAN Opinion of the Court 0, his constructive-discharge claim was time barred. Two other Courts of Appeals agree with the Tenth Cir- cuit’s view that the limitations period begins to run for a constructive-discharge claim after the employer’s last discriminatory act.2 As the Tenth Circuit recognized, however, other Courts of Appeals have held that the limi- tations period for a constructive-discharge claim does not begin to run until the employee resigns.3 We granted certiorari to resolve this split. 575 U. S. (5). Because no party here supports the Tenth Cir- cuit’s holding that an employee’s resignation is not part of the “matter alleged to be discriminatory,” we appointed Catherine M. A. Carroll to defend that aspect of the judgment below. 576 U. S. (5). She has ably discharged her duties and the Court thanks her for her service. II Before a federal civil servant can sue his employer in court for discriminating against him in violation of Title VII, he must first exhaust his administrative remedies. 42 U.S. C. –16(c). To exhaust those remedies, the Equal Employment Opportunity Commission (EEOC) has promulgated regulations that require, among other things, that a federal employee consult with an EEO counselor prior to filing a discrimination lawsuit. Specifically, he “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective —————— 2 Mayers v. Laborers’ Health and Safety Fund of North America, 478 F.3d 364, 370 ; 3 ; Draper v. Coeur Rochester, Inc., ; Hukkanen v. Operating Engineers, ; Cite as: 578 U. S. (6) 5 Opinion of the Court date of the action.” (a)(1).4 The timeli- ness of Green’s claim therefore turns on our interpretation of this EEOC regulation implementing Title VII.5 Although we begin our interpretation of the regulation with its text, the text in this case is not particularly help- ful. Nowhere does indicate whether a “matter alleged to be discriminatory” in a constructive-discharge claim includes the employee’s resignation, as Green con- tends, or only the employer’s discriminatory conduct, as amica contends. The word “matter” simply means “an allegation forming the basis of a claim or defense,” Black’s Law Dictionary 1126 —a term that could readily apply to a discrimination-precipitated resignation. So the “matter alleged to be discriminatory” could refer to all of the allegations underlying a claim of discrimina- tion, including the employee’s resignation, or only to those allegations concerning the employer’s discrimina- tory conduct. We therefore must turn to other canons of interpretation. The most helpful canon in this context is “the ‘standard rule’ ” for limitations periods. Graham County Soil & Water Conservation Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’ ” “[A] cause of action does not become ‘complete and present’ for limitations purposes —————— 4 Thisregulation, applicable to federal employees only, has a statutory analog for private-sector Title VII plaintiffs, who are required to file a charge with the EEOC within 180 or 300 days “after the alleged unlaw- ful employment practice occurred.” 42 U.S. C. –5(e)(1). Al- though the language is different, the EEOC treats the federal and private-sector employee limitations periods as identical in operation. See EEOC Compliance Manual: Threshold Issues n. 179. 5 Green does not contend that his alleged constructive discharge is a “personnel action.” See Brief for Petitioner 17–18; We therefore address the “matter alleged to be discriminatory” clause only. 6 GREEN v. BRENNAN Opinion of the Court until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Although the standard rule can be displaced such that the limitations period begins to run before a plaintiff can file a suit, we “will not infer such an odd result in the absence of any such indication” in the text of the limitations period. Applying this default rule, we are persuaded that the “matter alleged to be discriminatory” in a constructive- discharge claim necessarily includes the employee’s resig- nation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, noth- ing in the regulation creating the limitations period here, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here. We therefore interpret the term “matter alleged to be discriminatory” for a constructive-discharge claim to include the date Green resigned. A The standard rule for limitations periods requires us first to determine what is a “complete and present cause of action” for a constructive-discharge claim. We hold that such a claim accrues only after an employee resigns. The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State (2004). When the employee resigns in the face of such circumstances, Title VII treats that resignation as tanta- Cite as: 578 U. S. (6) 7 Opinion of the Court mount to an actual discharge. –143. A claim of constructive discharge therefore has two basic elements. A plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt com- pelled to resign. But he must also show that he actually resigned. (“A constructive discharge involves both an employee’s decision to leave and precipi- tating conduct” (emphasis added)). In other words, an employee cannot bring a constructive-discharge claim until he is constructively discharged. Only after both elements are satisfied can he file suit to obtain relief. Under the standard rule for limitations periods, the limitations period should begin to run for a constructive- discharge claim only after a plaintiff resigns. At that point—and not before—he can file a suit for constructive discharge. So only at that point—and not before—does he have a “complete and present” cause of action. And only after he has a complete and present cause of action does a limitations period ordinarily begin to run. Cf. Mac’s Shell Service, 189– 190 (0) (the limitations period for a constructive termi- nation of a franchise agreement starts running when the agreement is constructively terminated). In this respect, a claim that an employer constructively discharged an employee is no different from a claim that an employer actually discharged an employee. An ordi- nary wrongful discharge claim also has two basic ele- ments: discrimination and discharge. See St. Mary’s Honor ; 1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 21–33 (5th ed. 2) (Lindemann) (“The sine qua non of a discharge case is, of course, a discharge”). The claim accrues when the employee is fired. At that point—and not before—he has a “complete and present cause of action.” So at that point—and not 8 GREEN v. BRENNAN Opinion of the Court before—the limitations period begins to run. With claims of either constructive discharge or actual discharge, the standard rule thus yields the same result: a limitations period should not begin to run until after the discharge itself. In light of this rule, we interpret the term “matter alleged to be discriminatory” in to refer to all of the elements that make up a constructive- discharge claim—including an employee’s resignation. B Although the standard rule dictates that a limitations period should commence only after a claim accrues, there is an exception to that rule when the text creating the limitations period clearly indicates otherwise. See, e.g., Nothing in the text of Title VII or the regulation, however, suggests that the standard rule should be displaced here. To the contrary, the language of the regulation confirms our application of the default rule. As noted previously, the word “matter” generally refers to “an allegation forming the basis of a claim or defense.” Black’s Law Dictionary 1126. The natural reading of “matter alleged to be discriminatory” thus refers to the allegation forming the basis of the discrimination claim— here, a claim of constructive discharge. And as discussed above, a constructive discharge claim requires two basic allegations: discriminatory conduct by the employer that leads to resignation of the employee. So long as those acts are part of the same, single claim under consideration, they are part of the “matter alleged to be discriminatory,” whatever the role of discrimination in each individual element of the claim. Cf. National Railroad Passenger (holding that a hostile-work-environment claim is a single “unlawful employment practice” that includes every act composing that claim, whether those acts are inde- Cite as: 578 U. S. (6) 9 Opinion of the Court pendently actionable or not). C Finally, we are also persuaded that applying the stand- ard rule for limitations periods to constructive discharge makes a good deal of practical sense. Starting the limita- tions clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure. Cf. (holding that the Title VII limitations period should be construed to “honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement”). This Court has recognized “that the limitations perio[d] should not commence to run so soon that it becomes diffi- cult for a layman to invoke the protection of the civil rights statutes.” Delaware State 449 U.S. 250, 262, n. 16 (1980). If the limitations period begins to run following the employer’s precipitating dis- criminatory conduct, but before the employee’s resigna- tion, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged. Moreover, forcing an employee to lodge a complaint before he can bring a claim for constructive discharge places that employee in a difficult situation. An employee who suffered discrimination severe enough that a reason- able person in his shoes would resign might nevertheless force himself to tolerate that discrimination for a period of time. He might delay his resignation until he can afford to 10 GREEN v. BRENNAN Opinion of the Court leave. Or he might delay in light of other circumstances, as in the case of a teacher waiting until the end of the school year to resign. Tr. 17. And, if he feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination—an additional adverse consequence that he may have to disclose in future job applications. III Amica and the dissent read “matter alleged to be dis- criminatory” as having a clear enough meaning to displace our reliance on the standard rule for limitations periods. They argue that “matter” is not equivalent to “claim” or “cause of action,” and that the use of the phrase “matter alleged to be discriminatory” is a sufficiently clear state- ment that the standard claim accrual rule should not apply. According to amica and the dissent, “matter” refers only to the discriminatory acts of the Postal Service, not Green’s resignation. We disagree. There is nothing inherent in the phrase “matter alleged to be discriminatory” that clearly limits it to employer conduct. Rather, as discussed above, the term can reasonably be interpreted to include the factual basis for a claim. Green is not alleging just that the Postal Service discriminated against him. He claims that the discrimination left him no choice but to resign. Amica and the dissent dispute that a constructive dis- charge is a separate claim. According to amica and the dissent, the constructive-discharge doctrine merely allows a plaintiff to expand any underlying discrimination claim to include the damages from leaving his job, thereby in- creasing his available remedies. See 1 Lindemann 21–49 (constructive discharge allows plaintiff to seek backpay, front pay, or reinstatement). In support of this argument, amica and the dissent emphasize this Court’s statement in Suders that “[u]nder the constructive discharge doctrine, Cite as: 578 U. S. (6) 11 Opinion of the Court an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes.” 542 U.S., at (em- phasis added); see also (“[A] constructive dis- charge is functionally the same as an actual termination in damages-enhancing respects”). But the Court did not hold in Suders that a constructive discharge is tantamount to a formal discharge for remedial purposes exclusively. To the contrary, it expressly held that constructive discharge is a claim distinct from the underlying discriminatory act. (holding that a hostile-work-environment claim is a “lesser included component” of the “graver claim of hostile-environment constructive discharge”). This holding was no mere dic- tum. See (“[A] claim for constructive discharge lies under Title VII”). We see no reason to excise an em- ployee’s resignation from his constructive-discharge claim for purposes of the limitations period. The concurrence sets out a theory that there are two kinds of constructive discharge for purposes of the limita- tions period: constructive discharge “claims” where the employer “makes conditions intolerable with the specific discriminatory intent of forcing the employee to resign,” and constructive discharge “damages” where the employer does not intend to force the employee to quit, but the discriminatory conditions of employment are so intolerable that the employee quits anyway. Post, at 6–11 (ALITO, J., concurring in judgment). According to the concurrence, the limitations period does not begin to run until an em- ployee resigns under the “claim” theory of constructive discharge, but begins at the last discriminatory act before resignation under the “damages” theory. This sometimes-a-claim-sometimes-not theory of con- structive discharge is novel and contrary to the construc- tive discharge doctrine. The whole point of allowing an employee to claim “constructive” discharge is that in cir- 12 GREEN v. BRENNAN Opinion of the Court cumstances of discrimination so intolerable that a reason- able person would resign, we treat the employee’s resigna- tion as though the employer actually fired him. Suders, 542 U.S., at –143.6 We do not also require an em- ployee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the dis- crimination so bad that he had to quit, but also that his quitting was his employer’s plan all along. Amica and the dissent also argue that their interpreta- tion is more consistent with this Court’s prior precedent on when the limitations period begins to run for discrimi- nation claims. Under their interpretation, Green’s resig- nation was not part of the discriminatory “matter,” but was instead the mere inevitable consequence of the Postal Service’s discriminatory conduct, and therefore cannot be used to extend the limitations period. See Brief for Court- Appointed Amica Curiae in Support of Judgment Below —————— 6 The concurrence suggests that its theory is consistent with state- ments in the Suders opinion that constructive discharge is akin to an actual discharge “ ‘for remedial purposes’ ” and in “ ‘damages-enhancing respects.’ ” Post, at 10 (opinion of ALITO, J.) (quoting Suders, 542 U.S., at 148). This ignores the more obvious explanation for this qualifi- cation: The Court was distinguishing between the merits of a claim of constructive discharge generally, where resignation is imputed as a discriminatory act of the employer, and the affirmative defense avail- able to an employer in a hostile work environment claim specifically, which allows an employer to defend against a hostile work environment claim in certain circumstances if it took no “ ‘official act’ ” against the employee. at 143–146. The Court in Suders recognized that it would be bizarre to always impute resignation as an “official act” of the employer in a constructive discharge hostile work environment case and prohibit the employer from relying on the no-“official-act” defense, because it would make it easier to prove the “graver” claim of a con- structive discharge hostile work environment than to prove a hostile work environment claim. –149. Thus, the Court declined to hold that resignation in a constructive discharge case was categorically an “official act” in all instances. In other words, the Court sought a measure of parity between constructive discharge and ordinary discrimination—parity that we extend to the limitations period here. Cite as: 578 U. S. (6) 13 Opinion of the Court 21–27 (Brief for Amica Curiae) overruled by statute, Lilly Ledbetter Fair Pay Act of 2009, ; Delaware State ; United Air Lines, ); post, at 3–7 (THOMAS, J., dissenting) ). Similarly, the concurrence argues these cases require that an act done with discriminatory intent must occur within the limitations period. Post, at 4 (opinion of ALITO, J.). But these cases are consistent with the standard rule that a limitations period begins to run after a claim ac- crues, not after an inevitable consequence of that claim. In for example, the Court considered the discrimi- nation claim of a college faculty member who was denied tenure and given a 1-year “ ‘terminal’ ” contract for his last year The plaintiff ’s claim accrued—and he could have sued—when the college in- formed him he would be denied tenure and gave him “explicit notice that his employment would end” when his 1-year contract expired. The Court held that the limitations period began to run on that date, and not after his 1-year contract expired. That final year of teaching was merely an inevitable consequence of the tenure denial the plaintiff claimed was discriminatory. Green’s resignation, by contrast, is not merely an inevi- table consequence of the discrimination he suffered; it is an essential part of his constructive-discharge claim. That is, Green could not sue for constructive discharge until he actually resigned. Of course, Green could not resign and then wait until the consequences of that resignation be- came most painful to complain. For example, he could not use the date of the expiration of his health insurance after his resignation to extend the limitations period. But the “inevitable consequence” principle of Ledbetter, and Evans does not change the focus of the limitations period, 14 GREEN v. BRENNAN Opinion of the Court which remains on the claim of discrimination itself. See (0) (holding Evans and its progeny “establish only that a Title VII plaintiff must show a present violation within the limitations period” (internal quotation marks omitted)); National Railroad Passenger 536 U.S., at (holding limitations period for hostile-work- environment claim runs from the last act composing the claim).7 For a constructive discharge, the claim does not exist until the employee resigns. Finally, amica contends that her interpretation of the regulation better advances the EEOC’s goal of promoting conciliation for federal employees through early, informal contact with an EEO counselor. See Exec. Order No. 11478, (1969) (counseling for federal employees “shall encourage the resolution of employee problems on an informal basis”). The dissent suggests that our holding will make a discrimination victim the master of his complaint, permitting him to “ ‘exten[d] the limitation[s period] indefinitely’ ” by waiting to resign. Post, at 7 (opinion of THOMAS, J.). The concurrence claims that an employee who relies on the limitations period in waiting —————— 7 The dissent relies on Morgan’s other holding that, unlike a hostile- work-environment claim that may comprise many discriminatory acts, discrete claims of discrimination based on independent discriminatory acts cannot be aggregated to extend the limitations period. See post, at 3 (opinion of THOMAS, J.) (citing –113). But this just proves the point: The analysis for the limitations period turns on the nature of the specific legal claim at issue. In Morgan, the Court noted that even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period. (“It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations ”). Cite as: 578 U. S. (6) 15 Opinion of the Court to resign is “doubly out of luck” if his otherwise-meritorious discrimination claim is time barred and he cannot show the discrimination was so intolerable that it amounted to a constructive discharge. Post, at 13 (opinion of ALITO, J.). These concerns are overblown. Amica may be right that it is more difficult to achieve conciliation after an employee resigns. But the same is true for a federal civil servant who is fired by his agency for what the employee believes to be a discriminatory purpose. And neither decision is necessarily permanent—a resignation or a termination may be undone after an employee contacts a counselor. Conciliation, while important, does not warrant treating a constructive discharge different from an actual discharge for purposes of the limitations period. As for the dissent’s fear, we doubt that a victim of em- ployment discrimination will continue to work in an intol- erable environment merely because he can thereby extend the limitations period for a claim of constructive dis- charge. If anything, a plaintiff who wishes to prevail on the merits of his constructive discharge claim has the opposite incentive. A claim of constructive discharge requires proof of a causal link between the allegedly intol- erable conditions and the resignation. See 1 Lindemann 21–45, and n. 106. And as for the concurrence’s double-loser concern, no plaintiff would be well advised to delay pursuing what he believes to be a meritorious non-constructive-discharge- discrimination claim on the ground that a timely filed constructive discharge claim could resuscitate other time- lapsed claims. The 45-day limitations period begins run- ning on any separate underlying claim of discrimina- tion when that claim accrues, regardless of whether the plaintiff eventually claims constructive discharge. The limitations-period analysis is always conducted claim by claim. 16 GREEN v. BRENNAN Opinion of the Court IV Our decision that a resignation triggers the limitations period for a constructive-discharge claim raises the ques- tion of when precisely an employee resigns. Here, Green and the Government agree that an employee resigns when he gives his employer definite notice of his intent to re- sign. If an employee gives “two weeks’ notice”—telling his employer he intends to leave after two more weeks of employment—the limitations period begins to run on the day he tells his employer, not his last day at work. (This issue was not addressed by the Tenth Circuit and, accord- ingly, amica takes no position on it. See Brief for Amica Curiae 42.) We agree. A notice rule flows directly from this Court’s precedent. In and Chardon v. Fernandez, the Court explained that an ordi- nary wrongful-discharge claim accrues—and the limita- tions period begins to run—when the employer notifies the employee he is fired, not on the last day of his employ- ment. –259; Chardon, 454 U.S., at 8. Likewise, here, we hold that a constructive-discharge claim accrues—and the limitations period begins to run— when the employee gives notice of his resignation, not on the effective date of that resignation. One factual issue remains: when exactly Green gave the Postal Service notice of his resignation. The Government argues that Green resigned on December 16, 2009—when he signed the settlement agreement—and that his claim is therefore still time barred. Green argues that he did not resign until February 9, 0—when he submitted his retirement paperwork—and that his claim is therefore timely. We need not resolve this issue. Having concluded that the limitations period for Green’s constructive- discharge claim runs from the date he gave notice of his resignation, we leave it to the Tenth Circuit to determine when this in fact occurred. Cite as: 578 U. S. (6) 17 Opinion of the Court * * * For these reasons, we vacate the judgment of the Tenth Circuit and remand the case for further proceedings con- sistent with this opinion. So ordered. Cite as: 578 U. S. (6) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 14–613 MARVIN GREEN, PETITIONER v. MEGAN J. BRENNAN, POSTMASTER GENERAL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [May 23, 6] JUSTICE ALITO, concurring in the judgment.

Justice Rehnquist

second_dissenting

Papish v. Board of Curators of Univ. of Mo.

https://www.courtlistener.com/opinion/108740/papish-v-board-of-curators-of-univ-of-mo/

https://www.courtlistener.com/api/rest/v3/clusters/108740/

1972-075

We held in Healy v. James, 408 U.S. 169, 180 (1972), that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it proposed to take with respect to the students involved. Here the Court of Appeals found, and that finding is not questioned in this Court's opinion, that "the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct." 464 F.2d 136, 138. Both because I do not believe proper exercise of our jurisdiction warrants summary reversal in a case dependent in part on assessment of the record and not squarely governed by one of our decisions, and because I have serious reservations about the result reached by the Court, I dissent from the summary disposition of this case. I Petitioner Papish has for many years been a graduate student at the University of Missouri. Judge Stephenson, writing for the Court of Appeals in this case, summarized her record in these words: "Miss Papish's academic record reveals that she was in no rush to complete the requirements for her graduate *674 degree in Journalism. She possesses a 1958 academic degree from the University of Connecticut; she was admitted to graduate school at the University of Missouri in September in 1963; and although she attended school through the fall, winter, and summer semesters, she was, after 6 years of work, making little, if any, significant progress toward the achievement of her stated academic objective. At the time of her dismissal, Miss Papish was enrolled in a one-hour course entitled `Research Journalism' and in a three-hour course entitled `Ceramics 4.' In the semester immediately preceding her dismissal, she was enrolled only in `Ceramics 3.'" 464 F.2d, at 138 n. 2. Whatever may have been her lack of ability or motivation in the academic area, petitioner had been active on other fronts. In the words of the Court of Appeals: "3. On November 1, 1967, the Faculty Committee on Student Conduct, after notice of charges and a hearing, placed Miss Papish on disciplinary probation for the remainder of her student status at the University. The basis for her probation was her violation of the general standard of student conduct . . . . This action arose out of events which took place on October 14, 1967 at a time when the University was hosting high school seniors and their parents for the purpose of acquainting them with its educational programs and other aspects of campus life. She specifically was charged, inter alia, with openly distributing, on University grounds, without the permission of appropriate University personnel, two non-University publications of the Students for Democratic Society (SDS). It was alleged in the notice of charges, and apparently established at *675 the ensuing hearing, that one of these publications, the New Left Notes, contained `pornographic, indecent and obscene words, "f___," "bull s___," and "sh__s."' The notice of charges also recites that the other publication, The CIA at College: Into Twilight and Back, contained `a pornographic and indecent picture depicting two rats apparently fornicating on its cover . . . .' "4. Some two weeks prior to the incident causing her dismissal, Miss Papish was placed on academic probation because of prolonged submarginal academic progress. It was a condition of this probation that she pursue satisfactory work on her thesis, and that such work be evidenced by the completion and presentation of several completed chapters to her thesis advisor by the end of the semester. By letter dated January 31, 1969, Miss Papish was notified that her failure to comply with this special condition within the time specified would result in the termination of her candidacy for a graduate degree." Id., at 138-139, nn. 3, 4. It was in the light of this background that respondents finally expelled petitioner for the incident described in the Court's opinion. The Court fails to note, however, two findings made by the District Court with respect to the circumstances under which petitioner hawked her newspaper near the memorial tower of the University: "The Memorial Tower is the central unit of integrated structures dedicated to the memory of those students who died in the Armed Services in World Wars I and II. Other adjacent units include the Student Union and a Non-Sectarian chapel for prayer and meditation. Through the Memorial Arch pass parents of students, guests of the University, students, *676 including many persons under 18 years of age and high school students." 331 F. Supp. 1321, 1325 n. 4. "The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities." Id., at 1325. II I continue to adhere to the dissenting views expressed in Rosenfeld v. New Jersey, 408 U.S. 901 (1972), that the public use of the word "M_____f_____" is "lewd and obscene" as those terms were used by the Court in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). There the Court said: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id., at 571-572. But even were I convinced of the correctness of the Court's disposition of Rosenfeld, I would not think it should control the outcome of this case. It simply does not follow under any of our decisions or from the language of the First Amendment itself that because petitioner *677 could not be criminally prosecuted by the Missouri state courts for the conduct in question, she may not therefore be expelled from the University of Missouri for the same conduct. A state university is an establishment for the purpose of educating the State's young people, supported by the tax revenues of the State's citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court's opinion is quite unacceptable to me, and I would suspect would have been equally unacceptable to the Framers of the First Amendment. This is indeed a case where the observation of a unanimous Court in Chaplinsky that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" applies with compelling force. III The Court cautions that "disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights." Quite so. But a wooden insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university which it operates, serves neither the Constitution nor public education well. There is reason to think that the "disenchantment" of which the Court speaks may, after this decision, become widespread among taxpayers and legislators. The system of tax-supported public universities which has grown up *678 in this country is one of its truly great accomplishments; if they are to continue to grow and thrive to serve an expanding population, they must have something more than the grudging support of taxpayers and legislators. But one can scarcely blame the latter if, told by the Court that their only function is to supply tax money for the operation of the university, the "disenchantment" may reach such a point that they doubt the game is worth the candle.

We held in that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it proposed to take with respect to the students involved. Here the Court of Appeals found, and that finding is not questioned in this Court's opinion, that "the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct." Both because I do not believe proper exercise of our jurisdiction warrants summary reversal in a case dependent in part on assessment of the record and not squarely governed by one of our decisions, and because I have serious reservations about the result reached by the Court, I dissent from the summary disposition of this case. I Petitioner Papish has for many years been a graduate student at the University of Missouri. Judge Stephenson, writing for the Court of Appeals in this case, summarized her record in these words: "Miss Papish's academic record reveals that she was in no rush to complete the requirements for her graduate *674 degree in Journalism. She possesses a 1958 academic degree from the University of Connecticut; she was admitted to graduate school at the University of Missouri in September in 1963; and although she attended school through the fall, winter, and summer semesters, she was, after 6 years of work, making little, if any, significant progress toward the achievement of her stated academic objective. At the time of her dismissal, Miss Papish was enrolled in a one-hour course entitled `Research Journalism' and in a three-hour course entitled `Ceramics 4.' In the semester immediately preceding her dismissal, she was enrolled only in `Ceramics 3.'" 464 F.2d, at n. 2. Whatever may have been her lack of ability or motivation in the academic area, petitioner had been active on other fronts. In the words of the Court of Appeals: "3. On November 1, 1967, the Faculty Committee on Student Conduct, after notice of charges and a hearing, placed Miss Papish on disciplinary probation for the remainder of her student status at the University. The basis for her probation was her violation of the general standard of student conduct This action arose out of events which took place on October 14, 1967 at a time when the University was hosting high school seniors and their parents for the purpose of acquainting them with its educational programs and other aspects of campus life. She specifically was charged, inter alia, with openly distributing, on University grounds, without the permission of appropriate University personnel, two non-University publications of the Students for Democratic Society (SDS). It was alleged in the notice of charges, and apparently established at *675 the ensuing hearing, that one of these publications, the New Left Notes, contained `pornographic, indecent and obscene words, "f," "bull s," and "shs."' The notice of charges also recites that the other publication, The CIA at College: Into Twilight and Back, contained `a pornographic and indecent picture depicting two rats apparently fornicating on its cover' "4. Some two weeks prior to the incident causing her dismissal, Miss Papish was placed on academic probation because of prolonged submarginal academic progress. It was a condition of this probation that she pursue satisfactory work on her thesis, and that such work be evidenced by the completion and presentation of several completed chapters to her thesis advisor by the end of the semester. By letter dated January 31, 1969, Miss Papish was notified that her failure to comply with this special condition within the time specified would result in the termination of her candidacy for a graduate degree." at -139, nn. 3, 4. It was in the light of this background that respondents finally expelled petitioner for the incident described in the Court's opinion. The Court fails to note, however, two findings made by the District Court with respect to the circumstances under which petitioner hawked her newspaper near the memorial tower of the University: "The Memorial Tower is the central unit of integrated structures dedicated to the memory of those students who died in the Armed Services in World Wars I and II. Other adjacent units include the Student Union and a Non-Sectarian chapel for prayer and meditation. Through the Memorial Arch pass parents of students, guests of the University, students, *676 including many persons under 18 years of age and high school students." 1325 n. 4. "The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities." II I continue to adhere to the dissenting views expressed in that the public use of the word "Mf" is "lewd and obscene" as those terms were used by the Court in There the Court said: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." But even were I convinced of the correctness of the Court's disposition of Rosenfeld, I would not think it should control the outcome of this case. It simply does not follow under any of our decisions or from the language of the First Amendment itself that because petitioner *677 could not be criminally prosecuted by the Missouri state courts for the conduct in question, she may not therefore be expelled from the University of Missouri for the same conduct. A state university is an establishment for the purpose of educating the State's young people, supported by the tax revenues of the State's citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court's opinion is quite unacceptable to me, and I would suspect would have been equally unacceptable to the Framers of the First Amendment. This is indeed a case where the observation of a unanimous Court in Chaplinsky that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" applies with compelling force. III The Court cautions that "disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights." Quite so. But a wooden insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university which it operates, serves neither the Constitution nor public education well. There is reason to think that the "disenchantment" of which the Court speaks may, after this decision, become widespread among taxpayers and legislators. The system of tax-supported public universities which has grown up *678 in this country is one of its truly great accomplishments; if they are to continue to grow and thrive to serve an expanding population, they must have something more than the grudging support of taxpayers and legislators. But one can scarcely blame the latter if, told by the Court that their only function is to supply tax money for the operation of the university, the "disenchantment" may reach such a point that they doubt the game is worth the candle.

Justice Powell

dissenting

United States v. Fuller

https://www.courtlistener.com/opinion/108659/united-states-v-fuller/

https://www.courtlistener.com/api/rest/v3/clusters/108659/

1972-038

I dissent from a decision which, in my view, dilutes the meaning of the just compensation required by the Fifth Amendment when property is condemned by the Government. As a full understanding of the facts is necessary, I will begin by restating them. This is a condemnation proceeding brought by the United States to acquire title to 920 of 1,280 acres of land, owned in fee by respondents, which is within the area to *495 be flooded by a dam and reservoir project in Arizona. At the time of the taking respondents used this fee land as a base for a cattle operation known as a "cow-calf" ranch. A dependable source of water allowed intense cultivation of the fee land to provide the basic source of feed for the cattle. In connection with their fee land, respondents used 31,461 acres of adjacent public land on which they held revocable grazing permits issued under the Taylor Grazing Act. 43 U.S. C. § 315 et seq.[1] The public land was used for grazing during favorable seasons, and roads running across the public land connected respondents' three parcels of fee land. The permits held by respondents on the public land accorded exclusive but revocable grazing rights to respondents. By the terms of the Act, the issuance of a permit does not "create any right, title, interest, or estate in or to the lands." 43 U.S. C. § 315b. Nonetheless, grazing permits are of considerable value to ranchers and serve a corresponding public interest in assuring the "most beneficial use" of range lands. Hatahley v. United States, 351 U.S. 173, 177 (1956). Respondents' permits had not been revoked at the time of the taking, nor, so far as the record reveals, have they yet been revoked. The record also shows that only a small fraction of the public grazing land will be flooded in the dam and reservoir project. Thus, the public land which respondents assert gave added value to their fee land remains substantially intact and available for Taylor Grazing Act purposes. The District Court allowed respondents to introduce testimony as to the market value of the fee land which took into consideration its proximity to this public *496 land. In relevant part, the District Court instructed the jury as follows: "During the course of this trial, reference has been made to grazing permits held by the defendants on public land. You are instructed that such permits are mere licenses which may be revoked and are not compensable as such. However, should you determine that the highest and best use of the property taken is a use in conjunction with those permit lands, you may take those permits into consideration in arriving at your value of the subject land, keeping in mind the possibility that they may be withdrawn or canceled at any time without a constitutional obligation to pay the compensation therefor. "Evidence has been introduced of defendants' use of their deeded land which is being taken, in conjunction with surrounding land owned by the United States, for which defendants have grazing permits, and land belonging to the State of Arizona, which defendants leased. In fixing the fair market value of the fee land being taken and the compensation to be awarded, you are not to award defendants any compensation for the land owned by the United States or the State of Arizona. However, in determining the value of the fee land and in awarding compensation to the owners, you should consider the availability and accessibility of the permit and leased land and its use in conjunction with the fee land taken and give to the fee land such value as, in your judgment, according to the evidence, should be given on account of such availability and accessibility of the permit and leased land, if any. You should also consider the possibility that the permits on the United States land could be withdrawn at any time without constitutional obligation to pay compensation therefor and determine the effect you *497 feel such possibility, according to the evidence, would have upon the value of the fee land." App. 26-27. I have reproduced this extensive excerpt to underline the careful manner in which the condemnation jury was instructed. Contrary to the implication in the Government's framing of the question in this case,[2] the jury was not allowed to include "the value of revocable grazing permits." The instruction expressly stated that "such permits are mere licenses which may be revoked and are not compensable as such." The emphasis of the instruction was on the location of the fee land, with the resulting "availability and accessibility" of the adjacent public grazing land. I find the instruction to be an appropriate statement of the applicable principles of just compensation. The opinion of the Court recognizes that the just compensation required by the Fifth Amendment when the Government exercises its power of eminent domain is ordinarily the market value of the property taken. United States v. Miller, 317 U.S. 369, 374 (1943). It is commonplace, in determining market value—whether *498 in condemnation or in private transactions—to consider such elements of value as derive from the location of the land. But today the Court enunciates an exception to these recognized principles where the value of the land to be condemned may be enhanced by its location in relation to Government-owned property. The Court relies on two lines of cases which, indeed, are said to go far toward establishing "the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain." Ante, at 492. Applying this new principle to the present case, the Court now holds that since the Government "created" an element of value by owning grazing land and making it available under the Taylor Grazing Act, and since it has the power to "destroy" this element of value by barring respondents and others from the land, the condemnation jury must ignore the fact that respondents' land is adjacent to public land. Under this formulation, it is quite immaterial that the grazing land remains substantially intact, and that the Government has taken no action— and none is shown to be contemplated in the record— to convert such land to some other use. The test is not whether the Government has in fact put its property to some other use or removed it entirely; rather, it is quite simply whether the Government has the power to do this. Neither of the lines of cases on which the Court relies seems apposite. The first includes United States v. Miller, supra, in which the Court held that the Government need not pay for an increase in value occasioned *499 by the very project for which the land was condemned, and United States v. Cors, 337 U.S. 325 (1949), in which the Court held that in condemning tugboats during wartime the Government need not offer compensation for an increase in value attributable to its own extraordinary wartime demand for such craft. These cases support only the modest generalization that compensation need not be afforded for an increase in market value stemming from the very Government undertaking which led to the condemnation. The other cases on which the Court relies, United States v. Rands, 389 U.S. 121 (1967), and United States v. Twin City Power Co., 350 U.S. 222 (1956), deal with the condemnation of lands adjacent to navigable waters. In Rands, the condemnee owned land on the Columbia River which the United States condemned "in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River." 389 U.S., at 122. Relying on the "unique position" of the Government "in connection with navigable waters," ibid., the Court held that no special element of value could be accorded the land by virtue of its possible use as a port. In Twin City, the condemnee was holding land on the Savannah River as a potential hydroelectric powersite. The Government condemned the land as part of a major flood control, navigation, and hydroelectric project. By a bare majority vote, the Court held that the condemnee was not entitled to the "special water-rights value" of the land as a potential powersite, distinguishing other cases with the comment: "We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river. . . ." 350 U.S., at 225. *500 The water rights cases may be subject to varying interpretations, but it is important to remember when interpreting them that they cut sharply against the grain of the fundamental notion of just compensation, that a person from whom the Government takes land is entitled to the market value, including location value, of the land. They could well be confined to cases involving the Government's "unique position" with respect to "navigable waters."[3] At most, these cases establish a principle no broader than that the Government need not compensate for location value attributable to the proximity of Government property utilized in the same project. In Rands, as in Twin City, the river adjacent to the property condemned was the focal point of the development project which led to the condemnation. The Government simply decided to put the river to a new use and in connection with that new use condemned adjacent land. To understand why compensation is not required in such cases, it is important to distinguish the Government's role as condemnor from its role as property owner. While as condemnor the Government must pay market value, as property owner it may change the use of its property as if it were a private party, without paying compensation for the loss in value suffered by neighboring land. *501 When the Government condemns adjoining parcels of privately owned land for the same project, it may not take advantage of a drop in market value of one parcel resulting from the decision to condemn another. When, however, as in Rands and Twin City, a project encompasses not only parcels of private land, but also the public property which enhances the value of the private land, a more difficult question is presented. In each of those cases, the Government held a dominant servitude over the flow of a river, and it condemned adjacent private lands in connection with a decision to exercise its servitude. Arguably, the measure of compensation for the taking of the private lands should have included the value of the riparian location unaffected by the Government's decision to exercise its own rights in the river. But this result would have impinged on the Government's right to use the river by raising the cost of any new use which required the condemnation of private land. Accordingly, in those cases the Court excluded evidence of riparian location value since the Government was exercising its lawful power to appropriate "the entire flow of the river." "The proper exercise of this power [over navigable waters] is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject." United States v. Rands, 389 U. S., at 123. In any event, the present case is quite different. Respondents' lands were condemned not because the Government as property owner decided to put its grazing land to some other use and needed additional land, but *502 rather because the Government wanted respondents' land for a project which left the grazing land substantially intact and available.[4] The Government's role here is not an ambiguous one— it is simply a condemnor of private land which happens to adjoin public land. If the Government need not pay location value in this case, what are the limits upon the principle today announced? Will the Government be relieved from paying location value whenever it condemns private property adjacent to or favorably located with respect to Government property?[5] Does the principle apply, for example, to the taking of a gasoline station at an interchange of a federal highway, or to the taking of a farm which in private hands could continue to be irrigated with water from a federal reservoir? The majority proposes to distinguish such cases with the "working rule" that "there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit *503 authorizing the use of neighboring lands which the Government owns." Ante, at 492. The Court can hardly be drawing a distinction between Government-owned "completed public works" and Government-owned parks and grazing lands in their natural state. The "working rule" as articulated can, therefore, only mean that the respondents' revocable permit to use the neighboring lands is regarded by the Court as the distinguishing element. This is an acceptance of the Government's argument that the added value derives from the permit and not from the favorable location with respect to the grazing land.[6] The answer to this, not addressed either by the Government or the Court, is that the favorable location is the central fact. Even if no permit had been issued to these respondents, their three tracts of land—largely surrounded by the grazing land—were strategically located and logical beneficiaries of the Taylor Grazing Act. In determining the market value of respondents' land, surely this location —whether or not a permit had been issued[7]—would enter into any rational estimate of value. This is precisely the rationale of the District Court's jury instruction, which carefully distinguished between the revocable permits "not compensable as such" and the "availability and accessibility" of the grazing land. It is this distinction which the Court's opinion simply ignores. Finally, I do not think the Court's deviation from the market-value rule can be justified by invocation of long-established *504 "basic equitable principles of fairness." Ante, at 490. It hardly serves the principles of fairness as they have been understood in the law of just compensation to disregard what respondents could have obtained for their land on the open market in favor of its value artificially denuded of its surroundings.[8] I would affirm the judgment of the Court of Appeals.

I dissent from a decision which, in my view, dilutes the meaning of the just compensation required by the Fifth Amendment when property is condemned by the Government. As a full understanding of the facts is necessary, I will begin by restating them. This is a condemnation proceeding brought by the United States to acquire title to 920 of 1,280 acres of land, owned in fee by respondents, which is within the area to *495 be flooded by a dam and reservoir project in Arizona. At the time of the taking respondents used this fee land as a base for a cattle operation known as a "cow-calf" ranch. A dependable source of water allowed intense cultivation of the fee land to provide the basic source of feed for the cattle. In connection with their fee land, respondents used 31,461 acres of adjacent public land on which they held revocable grazing permits issued under the Taylor Grazing Act. 43 U.S. C. 315 et seq.[1] The public land was used for grazing during favorable seasons, and roads running across the public land connected respondents' three parcels of fee land. The permits held by respondents on the public land accorded exclusive but revocable grazing rights to respondents. By the terms of the Act, the issuance of a permit does not "create any right, title, interest, or estate in or to the lands." 43 U.S. C. 315b. Nonetheless, grazing permits are of considerable value to ranchers and serve a corresponding public interest in assuring the "most beneficial use" of range lands. Respondents' permits had not been revoked at the time of the taking, nor, so far as the record reveals, have they yet been revoked. The record also shows that only a small fraction of the public grazing land will be flooded in the dam and reservoir project. Thus, the public land which respondents assert gave added value to their fee land remains substantially intact and available for Taylor Grazing Act purposes. The District Court allowed respondents to introduce testimony as to the market value of the fee land which took into consideration its proximity to this public *496 land. In relevant part, the District Court instructed the jury as follows: "During the course of this trial, reference has been made to grazing permits held by the defendants on public land. You are instructed that such permits are mere licenses which may be revoked and are not compensable as such. However, should you determine that the highest and best use of the property taken is a use in conjunction with those permit lands, you may take those permits into consideration in arriving at your value of the subject land, keeping in mind the possibility that they may be withdrawn or canceled at any time without a constitutional obligation to pay the compensation therefor. "Evidence has been introduced of defendants' use of their deeded land which is being taken, in conjunction with surrounding land owned by the United States, for which defendants have grazing permits, and land belonging to the State of Arizona, which defendants leased. In fixing the fair market value of the fee land being taken and the compensation to be awarded, you are not to award defendants any compensation for the land owned by the United States or the State of Arizona. However, in determining the value of the fee land and in awarding compensation to the owners, you should consider the availability and accessibility of the permit and leased land and its use in conjunction with the fee land taken and give to the fee land such value as, in your judgment, according to the evidence, should be given on account of such availability and accessibility of the permit and leased land, if any. You should also consider the possibility that the permits on the United States land could be withdrawn at any time without constitutional obligation to pay compensation therefor and determine the effect you *497 feel such possibility, according to the evidence, would have upon the value of the fee land." App. 26-27. I have reproduced this extensive excerpt to underline the careful manner in which the condemnation jury was instructed. Contrary to the implication in the Government's framing of the question in this case,[2] the jury was not allowed to include "the value of revocable grazing permits." The instruction expressly stated that "such permits are mere licenses which may be revoked and are not compensable as such." The emphasis of the instruction was on the location of the fee land, with the resulting "availability and accessibility" of the adjacent public grazing land. I find the instruction to be an appropriate statement of the applicable principles of just compensation. The opinion of the Court recognizes that the just compensation required by the Fifth Amendment when the Government exercises its power of eminent domain is ordinarily the market value of the property taken. United It is commonplace, in determining market value—whether *498 in condemnation or in private transactions—to consider such elements of value as derive from the location of the land. But today the Court enunciates an exception to these recognized principles where the value of the land to be condemned may be enhanced by its location in relation to Government-owned property. The Court relies on two lines of cases which, indeed, are said to go far toward establishing "the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain." Ante, at 492. Applying this new principle to the present case, the Court now holds that since the Government "created" an element of value by owning grazing land and making it available under the Taylor Grazing Act, and since it has the power to "destroy" this element of value by barring respondents and others from the land, the condemnation jury must ignore the fact that respondents' land is adjacent to public land. Under this formulation, it is quite immaterial that the grazing land remains substantially intact, and that the Government has taken no action— and none is shown to be contemplated in the record— to convert such land to some other use. The test is not whether the Government has in fact put its property to some other use or removed it entirely; rather, it is quite simply whether the Government has the power to do this. Neither of the lines of cases on which the Court relies seems apposite. The first includes United in which the Court held that the Government need not pay for an increase in value occasioned *499 by the very project for which the land was condemned, and United in which the Court held that in condemning tugboats during wartime the Government need not offer compensation for an increase in value attributable to its own extraordinary wartime demand for such craft. These cases support only the modest generalization that compensation need not be afforded for an increase in market value stemming from the very Government undertaking which led to the condemnation. The other cases on which the Court relies, United and United deal with the condemnation of lands adjacent to navigable waters. In the condemnee owned land on the Columbia River which the United States condemned "in connection with the John Day Lock and Dam Project, authorized by Congress as part of a comprehensive plan for the development of the Columbia River." Relying on the "unique position" of the Government "in connection with navigable waters," ibid., the Court held that no special element of value could be accorded the land by virtue of its possible use as a port. In Twin City, the condemnee was holding land on the Savannah River as a potential hydroelectric powersite. The Government condemned the land as part of a major flood control, navigation, and hydroelectric project. By a bare majority vote, the Court held that the condemnee was not entitled to the "special water-rights value" of the land as a potential powersite, distinguishing other cases with the comment: "We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river." *500 The water rights cases may be subject to varying interpretations, but it is important to remember when interpreting them that they cut sharply against the grain of the fundamental notion of just compensation, that a person from whom the Government takes land is entitled to the market value, including location value, of the land. They could well be confined to cases involving the Government's "unique position" with respect to "navigable waters."[3] At most, these cases establish a principle no broader than that the Government need not compensate for location value attributable to the proximity of Government property utilized in the same project. In as in Twin City, the river adjacent to the property condemned was the focal point of the development project which led to the condemnation. The Government simply decided to put the river to a new use and in connection with that new use condemned adjacent land. To understand why compensation is not required in such cases, it is important to distinguish the Government's role as condemnor from its role as property owner. While as condemnor the Government must pay market value, as property owner it may change the use of its property as if it were a private party, without paying compensation for the loss in value suffered by neighboring land. *501 When the Government condemns adjoining parcels of privately owned land for the same project, it may not take advantage of a drop in market value of one parcel resulting from the decision to condemn another. When, however, as in and Twin City, a project encompasses not only parcels of private land, but also the public property which enhances the value of the private land, a more difficult question is presented. In each of those cases, the Government held a dominant servitude over the flow of a river, and it condemned adjacent private lands in connection with a decision to exercise its servitude. Arguably, the measure of compensation for the taking of the private lands should have included the value of the riparian location unaffected by the Government's decision to exercise its own rights in the river. But this result would have impinged on the Government's right to use the river by raising the cost of any new use which required the condemnation of private land. Accordingly, in those cases the Court excluded evidence of riparian location value since the Government was exercising its lawful power to appropriate "the entire flow of the river." "The proper exercise of this power [over navigable waters] is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject." United In any event, the present case is quite different. Respondents' lands were condemned not because the Government as property owner decided to put its grazing land to some other use and needed additional land, but *502 rather because the Government wanted respondents' land for a project which left the grazing land substantially intact and available.[4] The Government's role here is not an ambiguous one— it is simply a condemnor of private land which happens to adjoin public land. If the Government need not pay location value in this case, what are the limits upon the principle today announced? Will the Government be relieved from paying location value whenever it condemns private property adjacent to or favorably located with respect to Government property?[5] Does the principle apply, for example, to the taking of a gasoline station at an interchange of a federal highway, or to the taking of a farm which in private hands could continue to be irrigated with water from a federal reservoir? The majority proposes to distinguish such cases with the "working rule" that "there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit *503 authorizing the use of neighboring lands which the Government owns." Ante, at 492. The Court can hardly be drawing a distinction between Government-owned "completed public works" and Government-owned parks and grazing lands in their natural state. The "working rule" as articulated can, therefore, only mean that the respondents' revocable permit to use the neighboring lands is regarded by the Court as the distinguishing element. This is an acceptance of the Government's argument that the added value derives from the permit and not from the favorable location with respect to the grazing land.[6] The answer to this, not addressed either by the Government or the Court, is that the favorable location is the central fact. Even if no permit had been issued to these respondents, their three tracts of land—largely surrounded by the grazing land—were strategically located and logical beneficiaries of the Taylor Grazing Act. In determining the market value of respondents' land, surely this location —whether or not a permit had been issued[7]—would enter into any rational estimate of value. This is precisely the rationale of the District Court's jury instruction, which carefully distinguished between the revocable permits "not compensable as such" and the "availability and accessibility" of the grazing land. It is this distinction which the Court's opinion simply ignores. Finally, I do not think the Court's deviation from the market-value rule can be justified by invocation of long-established *504 "basic equitable principles of fairness." Ante, at 490. It hardly serves the principles of fairness as they have been understood in the law of just compensation to disregard what respondents could have obtained for their land on the open market in favor of its value artificially denuded of its surroundings.[8] I would affirm the judgment of the Court of Appeals.

Justice Thomas

majority

Granite Rock Co. v. Teamsters

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

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

2009-083

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

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

Justice Blackmun

concurring

United States v. Valenzuela-Bernal

https://www.courtlistener.com/opinion/110797/united-states-v-valenzuela-bernal/

https://www.courtlistener.com/api/rest/v3/clusters/110797/

1981-174

I concur in the judgment of the Court essentially for the reasons set forth by Judge Roney, in writing for a panel of the former Fifth Circuit, in United States v. Avila-Dominguez, 610 F.2d 1266, 1269-1270, cert. denied sub nom. Perez v. United States, 449 U.S. 887 (1980). At least a "plausible theory" of how the testimony of the deported witnesses would be helpful to the defense must be offered. None was advanced here; therefore, the motion to dismiss the indictment was properly denied by the District Court. *875 JUSTICE O'CONNOR, concurring in the judgment. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19 (1967). In short, the right to compulsory process is essential to a fair trial. Today's decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a "plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense." Ante, at 873. A preferable approach would be to accommodate both the Government's interest in prompt deportation of illegal aliens and the defendant's need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation. I One cannot discount the importance of the Federal Government's role in the regulation of immigration.[1] As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, *876 have decided that prompt deportation is the appropriate response to the tremendous influx of illegal aliens. Ante, at 864. The Court is also correct that the Federal Government has legitimate reasons for reducing the number of illegal aliens detained for possible use as material witnesses. Particularly because most of the detained aliens are never called to testify, we should be careful not to permit either needless human suffering or excessive burdens on the Federal Government. Under these circumstances, courts should be especially circumspect about interfering with congressional judgments. Nevertheless, the constitutional obligation of the Executive to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, §3, including the immigration laws, does not lessen the importance of affording the defendant the "fundamental fairness" inherent in due process, Lisenba v. California, 314 U.S. 219, 236 (1941). Moreover, the defendant's express right in the Sixth Amendment to compel the testimony of "witnesses in his favor," requires recognition of the importance, both to the individual defendant and to the integrity of the criminal justice system, of permitting the defendant the opportunity to interview eyewitnesses to the alleged crime. A governmental policy of deliberately putting potential defense witnesses beyond the reach of compulsory process is not easily reconciled with the spirit of the Compulsory Process Clause. II The Court's solution to this apparent conflict between the Executive's duty to enforce the immigration laws and its duty not to impair the defendant's rights to due process and compulsory process is to permit the Government to deport potential alien witnesses, and to put the burden on the defendant of making a plausible showing that the deported aliens would have provided material and relevant evidence. The Court's approach thus permits the Government to make *877 a practice of deporting alien witnesses immediately, taking only the risk that the defendant will be able to show that the deported witnesses, whom the defendant's counsel never will be able to interview, would have provided useful testimony. In effect, to the extent that the Government has conflicting obligations, the defendant is selected to carry the burden of their resolution. As the Court poses the issue today, the only alternatives are either to (1) permit routine deportation of witnesses and require the defendant to make some showing of prejudice, or (2) delay deportation so that defense counsel can interview the potential witnesses, and provide for automatic dismissal of the indictment if the witnesses are deported. There is, however, another alternative that would avoid unduly burdening either the Government or the defendant. The Court could require that deportation of potential alien witnesses be delayed for a very brief interval to allow defense counsel, as well as the Government, to interview them. That approach is somewhat similar to the Ninth Circuit's practice, originally described in United States v. Mendez-Rodriguez, 450 F.2d 1 (1971). Under the holding in that case, illegal alien witnesses were held in custody for a short period, an average of five days, following the appointment of counsel. During that time, defense counsel had the opportunity to interview the witnesses and determine whether any of them might provide material and relevant evidence. Following the interviews, a Federal Magistrate held a hearing to determine whether any of the witnesses could provide material evidence, and ordered deportation of those aliens who could not provide such testimony. On those occasions when the Government nevertheless deported potential witnesses before the materiality hearing was held, the District Court determined whether the deported witnesses could have been of some "conceivable benefit" to the defendant. If the defendant met that standard, the court dismissed the indictment. *878 The principal difficulty with the Ninth Circuit's approach was, as the Court notes, ante, at 866-867, that it required virtually no evidence that the deported witness' testimony would have been material to the defense. Under the Ninth Circuit's formulation, the Government's deportation of an alien witness resulted in virtually an automatic dismissal of the indictment. In adopting a standard requiring brief detention of potential alien witnesses, the Court need not take so extreme a position. In United States v. Avila-Dominguez, 610 F.2d 1266 (1980), for example, the Fifth Circuit followed the Ninth Circuit's rationale in concluding that a defendant's constitutional rights are violated if the Government deports an alien witness before the defendant has had an opportunity to interview him. The court nevertheless affirmed the defendant's conviction because he could not offer a "plausible theory" explaining how the witness' testimony would have been helpful to the defense. Id., at 1270. The court thus adopted a more stringent test than the Ninth Circuit's "conceivable benefit" test. The standard I propose is an amalgam of the approaches used by the Fifth and Ninth Circuits.[2] As a matter of course, the deportable aliens who are potential witnesses should be detained for a very brief period to afford Government *879 and defense counsel the opportunity to interview them. If, within that period, the defendant requests that certain aliens not be deported, a federal magistrate should hold a hearing to determine whether deportation of any of the witnesses should be deferred until after trial. As evidenced by the statistics provided by the respondent, similar procedures in the Ninth Circuit have produced very little litigation. See Brief for Respondent 30. Of course, the Government could be expected to abide by such a rule, but in the occasional event that it deports alien witnesses without affording the defendant any opportunity to interview them, the defendant should not be entitled to an automatic dismissal of the indictment; nor should the defendant be expected to prove prejudice—after all, the Government has deported his potential witnesses. Instead, I agree with the Court that sanctions should be available against the Government if the defendant sets forth some plausible theory explaining how the deported witnesses would have provided material evidence that was not simply cumulative of evidence readily available to the defendant. III In the case before us, the respondent made no plausible suggestion that the deported aliens possessed any material evidence that was not merely cumulative of other evidence. Under the standard I have proposed, the District Court properly denied the respondent's motion to dismiss the indictment. Accordingly, I concur in the judgment of the Court.

I concur in the judgment of the Court essentially for the reasons set forth by Judge Roney, in writing for a panel of the former Fifth Circuit, in United At least a "plausible theory" of how the testimony of the deported witnesses would be helpful to the defense must be offered. None was advanced here; therefore, the motion to dismiss the indictment was properly denied by the District Court. *875 JUSTICE O'CONNOR, concurring in the judgment. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." In short, the right to compulsory process is essential to a fair trial. Today's decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a "plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense." Ante, at 873. A preferable approach would be to accommodate both the Government's interest in prompt deportation of illegal aliens and the defendant's need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation. I One cannot discount the importance of the Federal Government's role in the regulation of immigration.[1] As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, *876 have decided that prompt deportation is the appropriate response to the tremendous influx of illegal aliens. Ante, at 864. The Court is also correct that the Federal Government has legitimate reasons for reducing the number of illegal aliens detained for possible use as material witnesses. Particularly because most of the detained aliens are never called to testify, we should be careful not to permit either needless human suffering or excessive burdens on the Federal Government. Under these circumstances, courts should be especially circumspect about interfering with congressional judgments. Nevertheless, the constitutional obligation of the Executive to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, including the immigration laws, does not lessen the importance of affording the defendant the "fundamental fairness" inherent in due process, 314 U.S. 2, (41). Moreover, the defendant's express right in the Sixth Amendment to compel the testimony of "witnesses in his favor," requires recognition of the importance, both to the individual defendant and to the integrity of the criminal justice system, of permitting the defendant the opportunity to interview eyewitnesses to the alleged crime. A governmental policy of deliberately putting potential defense witnesses beyond the reach of compulsory process is not easily reconciled with the spirit of the Compulsory Process Clause. II The Court's solution to this apparent conflict between the Executive's duty to enforce the immigration laws and its duty not to impair the defendant's rights to due process and compulsory process is to permit the Government to deport potential alien witnesses, and to put the burden on the defendant of making a plausible showing that the deported aliens would have provided material and relevant evidence. The Court's approach thus permits the Government to make *877 a practice of deporting alien witnesses immediately, taking only the risk that the defendant will be able to show that the deported witnesses, whom the defendant's counsel never will be able to interview, would have provided useful testimony. In effect, to the extent that the Government has conflicting obligations, the defendant is selected to carry the burden of their resolution. As the Court poses the issue today, the only alternatives are either to (1) permit routine deportation of witnesses and require the defendant to make some showing of prejudice, or (2) delay deportation so that defense counsel can interview the potential witnesses, and provide for automatic dismissal of the indictment if the witnesses are deported. There is, however, another alternative that would avoid unduly burdening either the Government or the defendant. The Court could require that deportation of potential alien witnesses be delayed for a very brief interval to allow defense counsel, as well as the Government, to interview them. That approach is somewhat similar to the Ninth Circuit's practice, originally described in United (71). Under the holding in that case, illegal alien witnesses were held in custody for a short period, an average of five days, following the appointment of counsel. During that time, defense counsel had the opportunity to interview the witnesses and determine whether any of them might provide material and relevant evidence. Following the interviews, a Federal Magistrate held a hearing to determine whether any of the witnesses could provide material evidence, and ordered deportation of those aliens who could not provide such testimony. On those occasions when the Government nevertheless deported potential witnesses before the materiality hearing was held, the District Court determined whether the deported witnesses could have been of some "conceivable benefit" to the defendant. If the defendant met that standard, the court dismissed the indictment. *878 The principal difficulty with the Ninth Circuit's approach was, as the Court notes, ante, at 866-867, that it required virtually no evidence that the deported witness' testimony would have been material to the defense. Under the Ninth Circuit's formulation, the Government's deportation of an alien witness resulted in virtually an automatic dismissal of the indictment. In adopting a standard requiring brief detention of potential alien witnesses, the Court need not take so extreme a position. In United for example, the Fifth Circuit followed the Ninth Circuit's rationale in concluding that a defendant's constitutional rights are violated if the Government deports an alien witness before the defendant has had an opportunity to interview him. The court nevertheless affirmed the defendant's conviction because he could not offer a "plausible theory" explaining how the witness' testimony would have been helpful to the defense. The court thus adopted a more stringent test than the Ninth Circuit's "conceivable benefit" test. The standard I propose is an amalgam of the approaches used by the Fifth and Ninth Circuits.[2] As a matter of course, the deportable aliens who are potential witnesses should be detained for a very brief period to afford Government *879 and defense counsel the opportunity to interview them. If, within that period, the defendant requests that certain aliens not be deported, a federal magistrate should hold a hearing to determine whether deportation of any of the witnesses should be deferred until after trial. As evidenced by the statistics provided by the respondent, similar procedures in the Ninth Circuit have produced very little litigation. See Brief for Respondent 30. Of course, the Government could be expected to abide by such a rule, but in the occasional event that it deports alien witnesses without affording the defendant any opportunity to interview them, the defendant should not be entitled to an automatic dismissal of the indictment; nor should the defendant be expected to prove prejudice—after all, the Government has deported his potential witnesses. Instead, I agree with the Court that sanctions should be available against the Government if the defendant sets forth some plausible theory explaining how the deported witnesses would have provided material evidence that was not simply cumulative of evidence readily available to the defendant. III In the case before us, the respondent made no plausible suggestion that the deported aliens possessed any material evidence that was not merely cumulative of other evidence. Under the standard I have proposed, the District Court properly denied the respondent's motion to dismiss the indictment. Accordingly, I concur in the judgment of the Court.

Justice Stevens

majority

Honda Motor Co. v. Oberg

https://www.courtlistener.com/opinion/117862/honda-motor-co-v-oberg/

https://www.courtlistener.com/api/rest/v3/clusters/117862/

1993-082

An amendment to the Oregon Constitution prohibits judicial review of the amount of punitive damages awarded by a jury "unless the court can affirmatively say there is no evidence to support the verdict." The question presented is whether that prohibition is consistent with the Due Process Clause of the Fourteenth Amendment. We hold that it is not. I Petitioner Honda Motor Co., Ltd., manufactured and sold the three-wheeled all-terrain vehicle that overturned while respondent was driving it, causing him severe and permanent injuries. Respondent brought suit alleging that petitioner knew or should have known that the vehicle had an inherently and unreasonably dangerous design. The jury found petitioner liable and awarded respondent $919,390.39 in compensatory damages and punitive damages of $5 million. The compensatory damages, however, were reduced by 20% to $735,512.31, because respondent's own negligence contributed to the accident. On appeal, relying on our then-recent decision in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991), petitioner argued that the award of punitive damages violated the Due Process Clause of the Fourteenth Amendment, because the punitive damages were excessive and because Oregon courts lacked the power to correct excessive verdicts. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The latter court relied heavily on the fact that the Oregon statute governing the award of punitive damages in product liability actions and the jury instructions in this case[1] contain substantive criteria that provide *419 at least as much guidance to the factfinders as the Alabama statute and jury instructions that we upheld in Haslip. The Oregon Supreme Court also noted that Oregon law provides an additional protection by requiring the plaintiff to prove entitlement to punitive damages by clear and convincing evidence rather than a mere preponderance. Recognizing that other state courts had interpreted Haslip as including a "clear . . . constitutional mandate for meaningful judicial scrutiny of punitive damage awards," Adams v. Murakami, 54 Cal. 3d 105, 118, 813 P.2d 1348, 1356 (1991); see also Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md. App. 672, 596 A.2d 687 (1991), the court nevertheless declined to "interpret Haslip to hold that an award of punitive damages, to comport with the requirements of the Due Process Clause, always must be subject to a form of post-verdict or appellate review that includes the possibility of remittitur." 316 Ore. 263, 284, 851 P.2d 1084, 1096 (1993). It also noted that trial and appellate courts were "not entirely powerless" because a judgment may be vacated if "there is no evidence to support the jury's decision," and because "appellate review is available to test the sufficiency of the jury instructions." Id., at 285, 851 P.2d, at 1096-1097. *420 We granted certiorari, 510 U.S. 1068 (1994), to consider whether Oregon's limited judicial review of the size of punitive damages awards is consistent with our decision in Haslip. II Our recent cases have recognized that the Constitution imposes a substantive limit on the size of punitive damages awards. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993). Although they fail to "draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable," id., at 458; Haslip, 499 U. S., at 18, a majority of the Justices agreed that the Due Process Clause imposes a limit on punitive damages awards. A plurality in TXO assented to the proposition that "grossly excessive" punitive damages would violate due process, 509 U.S., at 453-455, while Justice O'Connor, who dissented because she favored more rigorous standards, noted that "[i]t is thus common ground that an award may be so excessive as to violate due process," id., at 480. In the case before us today we are not directly concerned with the character of the standard that will identify unconstitutionally excessive awards; rather, we are confronted with the question of what procedures are necessary to ensure that punitive damages are not imposed in an arbitrary manner. More specifically, the question is whether the Due Process Clause requires judicial review of the amount of punitive damages awards. The opinions in both Haslip and TXO strongly emphasized the importance of the procedural component of the Due Process Clause. In Haslip, the Court held that the common-law method of assessing punitive damages did not violate procedural due process. In so holding, the Court stressed the availability of both "meaningful and adequate review by the trial court" and subsequent appellate review. 499 U.S., at 20. Similarly, in TXO, the plurality opinion *421 found that the fact that the "award was reviewed and upheld by the trial judge" and unanimously affirmed on appeal gave rise "to a strong presumption of validity." 509 U.S., at 457. Concurring in the judgment, Justice Scalia (joined by Justice Thomas) considered it sufficient that traditional common-law procedures were followed. In particular, he noted that "`procedural due process' requires judicial review of punitive damages awards for reasonableness." Id., at 471. All of those opinions suggest that our analysis in this case should focus on Oregon's departure from traditional procedures. We therefore first contrast the relevant commonlaw practice with Oregon's procedure, which that State's Supreme Court once described as "a system of trial by jury in which the judge is reduced to the status of a mere monitor." Van Lom v. Schneiderman, 187 Ore. 89, 113, 210 P.2d 461, 471 (1949). We then examine the constitutional implications of Oregon's deviation from established common-law procedures. III Judicial review of the size of punitive damages awards has been a safeguard against excessive verdicts for as long as punitive damages have been awarded. One of the earliest reported cases involving exemplary damages, Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763), arose out of King George III's attempt to punish the publishers of the allegedly seditious North Briton, No. 45. The King's agents arrested the plaintiff, a journeyman printer, in his home and detained him for six hours. Although the defendants treated the plaintiff rather well, feeding him "beef steakes and beer, so that he suffered very little or no damages," 2 Wils., at 205, 95 Eng. Rep., at 768, the jury awarded him £ 300, an enormous sum almost 300 times the plaintiff's weekly wage. The defendant's lawyer requested a new trial, arguing that the jury's award was excessive. Plaintiff's *422 counsel, on the other hand, argued that "in cases of tort . . . the court will never interpose in setting aside verdicts for excessive damages." Id., at 206, 95 Eng. Rep., at 768. While the court denied the motion for new trial, the Chief Justice explicitly rejected plaintiff's absolute rule against review of damages amounts. Instead, he noted that when the damages are "outrageous" and "all mankind at first blush must think so," a court may grant a new trial "for excessive damages." Id. , at 207, 95 Eng. Rep., at 769. In accord with his view that the amount of an award was relevant to the motion for a new trial, the Chief Justice noted that "[u]pon the whole I am of opinion the damages are not excessive." Ibid. Subsequent English cases, while generally deferring to the jury's determination of damages, steadfastly upheld the court's power to order new trials solely on the basis that the damages were too high. Fabrigas v. Mostyn, 2 Black. W. 929, 96 Eng. Rep. 549 (C. P. 1773) (Damages "may be so monstrous and excessive, as to be in themselves an evidence of passion or partiality in the jury");[2]Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557 (C. P. 1774) ("It has never been laid down, that the Court will not grant a new trial for excessive damages in any cases of tort"); Leith v. Pope, 2 Black. W. 1327, 1328, 96 Eng. Rep. 777, 778 (C. P. 1779) ("[I]n cases of tort the Court will not interpose on account of the largeness of damages, unless they are so flagrantly excessive as to afford an internal evidence of the prejudice and partiality *423 of the jury"); Jones v. Sparrow, 5 T. R. 257, 101 Eng. Rep. 144 (K. B. 1793) (new trial granted for excessive damages); Goldsmith v. Lord Sefton, 3 Anst. 808, 145 Eng. Rep. 1046 (Exch. 1796) (same); Hewlett v. Cruchley, 5 Taunt. 277, 281, 128 Eng. Rep. 696, 698 (C. P. 1813) ("[I]t is now well acknowledged in all the Courts of Westminster-hall, that whether in actions for criminal conversation, malicious prosecutions, words, or any other matter, if the damages are clearly too large, the Courts will send the inquiry to another jury"). Respondent calls to our attention the case of Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Rep. 790 (C. P. 1764), in which the court asserted that "there is not one single case, (that is law), in all the books to be found, where the court has granted a new trial for excessive damages in actions for torts." Id., at 249, 95 Eng. Rep., at 793. Respondent would infer from that statement that 18th-century common law did not provide for judicial review of damages. Respondent's argument overlooks several crucial facts. First, the Beardmore case antedates all but one of the cases cited in the previous paragraph. Even if respondent's interpretation of the case were correct, it would be an interpretation the English courts rejected soon thereafter. Second, Beardmore itself cites at least one case that it concedes granted a new trial for excessive damages, Chambers v. Robinson, 2 Str. 691, 93 Eng. Rep. 787 (K. B. 1726), although it characterizes the case as wrongly decided. Third, to say that "there is not one single case . . . in all the books" is to say very little, because then, much more so than now, only a small proportion of decided cases was reported. For example, for 1764, the year Beardmore was decided, only 16 Common Pleas cases are recorded in the standard reporter. 2 Wils. 208-257, 95 Eng. Rep. 769-797. Finally, the inference respondent would draw, that 18th-century English common law did not permit a judge to order new trials for excessive damages, is explicitly rejected by Beardmore itself, *424 which cautioned against that very inference: "We desired to be understood that this court does not say, or lay down any rule that there can never happen a case of such excessive damages in tort where the court may not grant a new trial." 2 Wils., at 250, 95 Eng. Rep., at 793. Common-law courts in the United States followed their English predecessors in providing judicial review of the size of damages awards. They too emphasized the deference ordinarily afforded jury verdicts, but they recognized that juries sometimes awarded damages so high as to require correction. Thus, in 1822, Justice Story, sitting as Circuit Justice, ordered a new trial unless the plaintiff agreed to a reduction in his damages.[3] In explaining his ruling, he noted: "As to the question of excessive damages, I agree, that the court may grant a new trial for excessive damages. . . . It is indeed an exercise of discretion full of delicacy and difficulty. But if it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other case." Blunt v. Little, 3 F. Cas. 760, 761-762 (No. 1,578) (CC Mass. 1822). See also Whipple v. Cumberland Mfg. Co., 29 F. Cas. 934, 937-938 (No. 17, 516) (CC Me. 1843). *425 In the 19th century, both before and after the ratification of the Fourteenth Amendment, many American courts reviewed damages for "partiality" or "passion and prejudice." Nevertheless, because of the difficulty of probing juror reasoning, passion and prejudice review was, in fact, review of the amount of awards. Judges would infer passion, prejudice, or partiality from the size of the award.[4]Coffin v. Coffin, 4 Mass. 1, 41 (1808) (In cases of personal injury, "a verdict may be set aside for excessive damages" when "from the exorbitancy of them the court must conclude that the jury acted from passion, partiality, or corruption"); Taylor v. Giger, 3 Ky. 586, 587 (1808) ("In actions of tort . . . a new trial ought not to be granted for excessiveness of damages, unless the damages found are so enormous as to shew that the jury were under some improper influence, or were led astray by the violence of prejudice or passion"); McConnell v. Hampton, 12 Johns. 234, 235 (N. Y. 1815) (granting new trial for excessive damages and noting: "That Courts have a legal right to grant new trials, for excessive damages in actions for torts, is no where denied . . ."); Belknap v. Boston & Maine R. Co., 49 N. H. 358, 374 (1870) (setting aside & compensatory[49] punitive both and damages, because "[w]e think it evident that the jury were affected by some partiality or prejudice"). Nineteenth-century treatises similarly recognized judges' authority to award new trials on the basis of the size of damages awards. 1 D. Graham, A Treatise on the Law of New Trials 442 (2d ed. 1855) ("[E]ven in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice and passion, the court will interfere for the relief *426 of the defendant, and order a new trial"); T. Sedgwick, A Treatise on the Measure of Damages 707 (5th ed. 1869) ("The court again holds itself at liberty to set aside verdicts and grant new trials . . . whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance"); 3 J. Sutherland, A Treatise on the Law of Damages 469 (1883) (When punitive damages are submitted to the jury, "the amount which they may think proper to allow will be accepted by the court, unless so exorbitant as to indicate that they have been influenced by passion, prejudice or a perverted judgment"). Modern practice is consistent with these earlier authorities. In the federal courts and in every State, except Oregon, judges review the size of damages awards. See Dagnello v. Long Island R. Co., 289 F.2d 797, 799-800, n. 1, (CA2 1961) (citing cases from all 50 States except Alaska, Maryland, and Oregon); Nome v. Ailak, 570 P.2d 162, 173-174 (Alaska 1977); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md. App., at 716-722, 596 A.2d, at 709-711, cert. denied, 605 A.2d 137 (Md. 1992); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App. 1987); Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981); Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases, 12 A. L. R. 5th 195 (1993); Schnapper, Judges Against Juries— Appellate Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237. IV There is a dramatic difference between the judicial review of punitive damages awards under the common law and the scope of review available in Oregon. An Oregon trial judge, or an Oregon appellate court, may order a new trial if the jury was not properly instructed, if error occurred during the trial, or if there is no evidence to support any punitive damages at all. But if the defendant's only basis for relief is the amount of punitive damages the jury awarded, Oregon *427 provides no procedure for reducing or setting aside that award. This has been the law in Oregon at least since 1949 when the State Supreme Court announced its opinion in Van Lom v. Schneiderman, 187 Ore. 89, 210 P.2d 461 (1949), definitively construing the 1910 amendment to the Oregon Constitution.[5] In that case the court held that it had no power to reduce or set aside an award of both compensatory and punitive damages that was admittedly excessive.[6] It recognized that the constitutional amendment placing a limitation on its power was a departure from the traditional common-law approach.[7] That opinion's characterization of Oregon's "lonely eminence" in this regard, id., at 113, 210 P.2d, at 471, is still an accurate portrayal of its unique position. Every other State in the Union affords postverdict judicial review of the *428 amount of a punitive damages award, see supra, at 426, and subsequent decisions have reaffirmed Oregon judges' lack of authority to order new trials or other relief to remedy excessive damages. Fowler v. Courtemanche, 202 Ore. 413, 448, 274 P.2d 258, 275 (1954) ("If this court were authorized to exercise its common law powers, we would unhesitatingly hold that the award of $35,000 as punitive damages was excessive . . .");Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P.2d 413 (1994) (Oregon court cannot examine jury award to ensure compliance with $500,000 statutory limit on noneconomic damages). Respondent argues that Oregon's procedures do not deviate from common-law practice, because Oregon judges have the power to examine the size of the award to determine whether the jury was influenced by passion and prejudice. This is simply incorrect. The earliest Oregon cases interpreting the 1910 amendment squarely held that Oregon courts lack precisely that power. Timmins v. Hale, 122 Ore. 24, 43-44, 256 P. 770, 776 (1927); McCulley v. Homestead Bakery, Inc., 141 Ore. 460, 465-466, 18 P.2d 226, 228 (1933). Although dicta in later cases have suggested that the issue might eventually be revisited, see Van Lom, 187 Ore., at 106, 210 P.2d, at 468, the earlier holdings remain Oregon law. No Oregon court for more than half a century has inferred passion and prejudice from the size of a damages award, and no court in more than a decade has even hinted that courts might possess the power to do so.[8] Finally, if Oregon courts *429 could evaluate the excessiveness of punitive damages awards through passion and prejudice review, the Oregon Supreme Court would have mentioned that power in this very case. Petitioners argued that Oregon procedures were unconstitutional precisely because they failed to provide judicial review of the size of punitive damages awards. The Oregon Supreme Court responded by rejecting the idea that judicial review of the size of punitive damages awards was required by Haslip. 316 Ore., at 263, 851 P.2d, at 1084. As the court noted, two state appellate courts, including the California Supreme Court, had reached the opposite conclusion. Id., at 284, n. 13, 851 P.2d, at 1096, n. 13. If, as respondent claims, Oregon law provides passion and prejudice review of excessive verdicts, the Oregon Supreme Court would have had a more obvious response to petitioners' argument. Respondent also argues that Oregon provides adequate review, because the trial judge can overturn a punitive damages award if there is no substantial evidence to support an award of punitive damages. See Fowler v. Courtemanche, 202 Ore., at 448-449, 274 P.2d, at 275. This argument is unconvincing, because the review provided by Oregon courts ensures only that there is evidence to support some punitive damages, not that there is evidence to support the amount actually awarded. While Oregon's judicial review ensures that punitive damages are not awarded against defendants entirely innocent of conduct warranting exemplary damages, Oregon, unlike the common law, provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. What we are concerned with is the possibility that a culpable defendant may be unjustly punished; evidence of culpability warranting some punishment is not a substitute for evidence providing at least a rational basis for the particular deprivation of property imposed by the State to deter future wrongdoing. *430 V Oregon's abrogation of a well-established common-law protection against arbitrary deprivations of property raises a presumption that its procedures violate the Due Process Clause. As this Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856); Tumey v. Ohio, 273 U.S. 510 (1927); Brown v. Mississippi, 297 U.S. 278 (1936); In re Winship, 397 U.S. 358, 361 (1970); Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604 (1990); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial. In fact, most of our due process decisions involve arguments that traditional procedures provide too little protection and that additional safeguards are necessary to ensure compliance with the Constitution. Ownbey v. Morgan, 256 U.S. 94 (1921); Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604 (1990); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). Nevertheless, there are a handful of cases in which a party has been deprived of liberty or property without the safeguards of common-law procedure. Hurtado v. California, 110 U.S. 516 (1884); Tumey v. Ohio, 273 U.S. 510 (1927); Brown v. Mississippi, 297 U.S. 278 (1936); In re Oliver, 333 U.S. 257 (1948); In re Winship, 397 U. S., at 361. When the absent procedures would have provided protection against arbitrary and inaccurate adjudication, this Court has not hesitated to find the proceedings violative of due process. Tumey v. Ohio, 273 U.S. 510 (1927); Brown v. Mississippi, 297 U.S. 278 (1936); In re Oliver, 333 U.S. 257 (1948); In re Winship, 397 U. S., at 361. Of course, not all deviations from established procedures result in constitutional infirmity. As the Court noted in Hurtado, to hold all procedural *431 change unconstitutional "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." 110 U.S., at 529. A review of the cases, however, suggests that the case before us is unlike those in which abrogations of common-law procedures have been upheld. In Hurtado, for example, examination by a neutral magistrate provided criminal defendants with nearly the same protection as the abrogated common-law grand jury procedure. Id., at 538. Oregon, by contrast, has provided no similar substitute for the protection provided by judicial review of the amount awarded by the jury in punitive damages. Similarly, in International Shoe Co. v. Washington, 326 U.S. 310 (1945), this Court upheld the extension of state-court jurisdiction over persons not physically present, in spite of contrary well-established prior practice. That change, however, was necessitated by the growth of a new business entity, the corporation, whose ability to conduct business without physical presence had created new problems not envisioned by rules developed in another era. See Burnham, 495 U. S., at 617. In addition, the dramatic improvements in communication and transportation made litigation in a distant forum less onerous. No similar social changes suggest the need for Oregon's abrogation of judicial review, nor do improvements in technology render unchecked punitive damages any less onerous. If anything, the rise of large, interstate and multinational corporations has aggravated the problem of arbitrary awards and potentially biased juries.[9] *432 Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences. Judicial review of the amount awarded was one of the few procedural safeguards which the common law provided against that danger. Oregon has removed that safeguard without providing any substitute procedure and without any indication that the danger of arbitrary awards has in any way subsided over time. For these reasons, we hold that Oregon's denial of judicial review of the size of punitive damages awards violates the Due Process Clause of the Fourteenth Amendment.[10] VI Respondent argues that Oregon has provided other safeguards against arbitrary awards and that, in any event, the exercise of this unreviewable power by the jury is consistent with the jury's historic role in our judicial system. Respondent points to four safeguards provided in the Oregon courts: the limitation of punitive damages to the amount specified in the complaint, the clear and convincing standard of proof, preverdict determination of maximum allowable punitive damages, and detailed jury instructions. The first, *433 limitation of punitive damages to the amount specified, is hardly a constraint at all, because there is no limit to the amount the plaintiff can request, and it is unclear whether an award exceeding the amount requested could be set aside. See Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P.2d 413 (1994) (Oregon Constitution bars court from examining jury award to ensure compliance with $500,000 statutory limit on noneconomic damages). The second safeguard, the clear and convincing standard of proof, is an important check against unwarranted imposition of punitive damages, but, like the "no substantial evidence" review discussed supra, at 429, it provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. Regarding the third purported constraint, respondent cites no cases to support the idea that Oregon courts do or can set maximum punitive damages awards in advance of the verdict. Nor are we aware of any court which implements that procedure. Respondent's final safeguard, proper jury instruction, is a wellestablished and, of course, important check against excessive awards. The problem that concerns us, however, is the possibility that a jury will not follow those instructions and may return a lawless, biased, or arbitrary verdict.[11] *434 In support of his argument that there is a historic basis for making the jury the final arbiter of the amount of punitive damages, respondent calls our attention to early civil and criminal cases in which the jury was allowed to judge the law as well as the facts. See Johnson v. Louisiana, 406 U.S. 356, 374, n. 11 (1972) (Powell, J., concurring). As we have already explained, in civil cases, the jury's discretion to determine the amount of damages was constrained by judicial review.[12] The criminal cases do establish—as does our practice today—that a jury's arbitrary decision to acquit a defendant charged with a crime is completely unreviewable. There is, however, a vast difference between arbitrary grants of freedom and arbitrary deprivations of liberty or property. The Due Process Clause has nothing to say about the former, but its whole purpose is to prevent the latter. A decision to punish a tortfeasor by means of an exaction of *435 exemplary damages is an exercise of state power that must comply with the Due Process Clause of the Fourteenth Amendment. The common-law practice, the procedures applied by every other State, the strong presumption favoring judicial review that we have applied in other areas of the law, and elementary considerations of justice all support the conclusion that such a decision should not be committed to the unreviewable discretion of a jury. The judgment is reversed, and the case is remanded to the Oregon Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered.

An amendment to the Oregon Constitution prohibits judicial review of the amount of punitive damages awarded by a jury "unless the court can affirmatively say there is no evidence to support the verdict." The question presented is whether that prohibition is consistent with the Due Process Clause of the Fourteenth Amendment. We hold that it is not. I Petitioner Honda Motor Co., Ltd., manufactured and sold the three-wheeled all-terrain vehicle that overturned while respondent was driving it, causing him severe and permanent injuries. Respondent brought suit alleging that petitioner knew or should have known that the vehicle had an inherently and unreasonably dangerous design. The jury found petitioner liable and awarded respondent $919,390.39 in compensatory damages and punitive damages of $5 million. The compensatory damages, however, were reduced by 20% to $735,512.31, because respondent's own negligence contributed to the accident. On appeal, relying on our then-recent decision in Pacific Mut. Life Ins. petitioner argued that the award of punitive damages violated the Due Process Clause of the Fourteenth Amendment, because the punitive damages were excessive and because Oregon courts lacked the power to correct excessive verdicts. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The latter court relied heavily on the fact that the Oregon statute governing the award of punitive damages in product liability actions and the jury instructions in this case[1] contain substantive criteria that provide *9 at least as much guidance to the factfinders as the Alabama statute and jury instructions that we upheld in The Oregon Supreme Court also noted that Oregon law provides an additional protection by requiring the plaintiff to prove entitlement to punitive damages by clear and convincing evidence rather than a mere preponderance. Recognizing that other state courts had interpreted as including a "clear constitutional mandate for meaningful judicial scrutiny of punitive damage awards," ; see also Alexander & Alexander, the court nevertheless declined to "interpret to hold that an award of punitive damages, to comport with the requirements of the Due Process Clause, always must be subject to a form of post-verdict or appellate review that includes the possibility of remittitur." It also noted that trial and appellate courts were "not entirely powerless" because a judgment may be vacated if "there is no evidence to support the jury's decision," and because "appellate review is available to test the sufficiency of the jury instructions." 851 P.2d, at -1097. *420 We granted certiorari, to consider whether Oregon's limited judicial review of the size of punitive damages awards is consistent with our decision in II Our recent cases have recognized that the Constitution imposes a substantive limit on the size of punitive damages awards. Pacific Mut. Life Ins. ; TXO Production Although they fail to "draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable," ; a majority of the Justices agreed that the Due Process Clause imposes a limit on punitive damages awards. A plurality in TXO assented to the proposition that "grossly excessive" punitive damages would violate due -455, while Justice O'Connor, who dissented because she favored more rigorous standards, noted that "[i]t is thus common ground that an award may be so excessive as to violate due" In the case before us today we are not directly concerned with the character of the standard that will identify unconstitutionally excessive awards; rather, we are confronted with the question of what procedures are necessary to ensure that punitive damages are not imposed in an arbitrary manner. More specifically, the question is whether the Due Process Clause requires judicial review of the amount of punitive damages awards. The opinions in both and TXO strongly emphasized the importance of the procedural component of the Due Process Clause. In the Court held that the common-law method of assessing punitive damages did not violate procedural due In so holding, the Court stressed the availability of both "meaningful and adequate review by the trial court" and subsequent appellate review. Similarly, in TXO, the plurality opinion *421 found that the fact that the "award was reviewed and upheld by the trial judge" and unanimously affirmed on appeal gave rise "to a strong presumption of validity." Concurring in the judgment, Justice Scalia (joined by Justice Thomas) considered it sufficient that traditional common-law procedures were followed. In particular, he noted that "`procedural due ' requires judicial review of punitive damages awards for reasonableness." All of those opinions suggest that our analysis in this case should focus on Oregon's departure from traditional procedures. We therefore first contrast the relevant commonlaw practice with Oregon's procedure, which that State's Supreme Court once described as "a system of trial by jury in which the judge is reduced to the status of a mere monitor." Van We then examine the constitutional implications of Oregon's deviation from established common-law procedures. III Judicial review of the size of punitive damages awards has been a safeguard against excessive verdicts for as long as punitive damages have been awarded. One of the earliest reported cases involving exemplary damages, Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763), arose out of King George III's attempt to punish the publishers of the allegedly seditious North Briton, No. 45. The King's agents arrested the plaintiff, a journeyman printer, in his home and detained him for six hours. Although the defendants treated the plaintiff rather well, feeding him "beef steakes and beer, so that he suffered very little or no damages," 2 Wils., at 205, 95 Eng. Rep., at 768, the jury awarded him £ 300, an enormous sum almost 300 times the plaintiff's weekly wage. The defendant's lawyer requested a new trial, arguing that the jury's award was excessive. Plaintiff's *422 counsel, on the other hand, argued that "in cases of tort the court will never interpose in setting aside verdicts for excessive damages." 95 Eng. Rep., at 768. While the court denied the motion for new trial, the Chief Justice explicitly rejected plaintiff's absolute rule against review of damages amounts. Instead, he noted that when the damages are "outrageous" and "all mankind at first blush must think so," a court may grant a new trial "for excessive damages." at 207, 95 Eng. Rep., at 769. In accord with his view that the amount of an award was relevant to the motion for a new trial, the Chief Justice noted that "[u]pon the whole I am of opinion the damages are not excessive." Subsequent English cases, while generally deferring to the jury's determination of damages, steadfastly upheld the court's power to order new trials solely on the basis that the damages were too high. Fabrigas v. Mostyn, 2 Black. W. 929, 96 Eng. Rep. 549 (C. P. 1773) (Damages "may be so monstrous and excessive, as to be in themselves an evidence of passion or partiality in the jury");[2]Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557 (C. P. 1774) ("It has never been laid down, that the Court will not grant a new trial for excessive damages in any cases of tort"); Leith v. Pope, 2 Black. W. 27, 28, 96 Eng. Rep. 777, 778 (C. P. 1779) ("[I]n cases of tort the Court will not interpose on account of the largeness of damages, unless they are so flagrantly excessive as to afford an internal evidence of the prejudice and partiality *423 of the jury"); Jones v. Sparrow, 5 T. R. 257, 101 Eng. Rep. 144 (K. B. 1793) (new trial granted for excessive damages); Goldsmith v. Lord Sefton, 3 Anst. 808, 145 Eng. Rep. 1046 (Exch. 1796) (same); Hewlett v. Cruchley, 5 Taunt. 277, 281, 128 Eng. Rep. 696, 698 (C. P. 18) ("[I]t is now well acknowledged in all the Courts of Westminster-hall, that whether in actions for criminal conversation, malicious prosecutions, words, or any other matter, if the damages are clearly too large, the Courts will send the inquiry to another jury"). Respondent calls to our attention the case of Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Rep. 790 (C. P. 1764), in which the court asserted that "there is not one single case, (that is law), in all the books to be found, where the court has granted a new trial for excessive damages in actions for torts." 95 Eng. Rep., at 793. Respondent would infer from that statement that 18th-century common law did not provide for judicial review of damages. Respondent's argument overlooks several crucial facts. First, the Beardmore case antedates all but one of the cases cited in the previous paragraph. Even if respondent's interpretation of the case were correct, it would be an interpretation the English courts rejected soon thereafter. Second, Beardmore itself cites at least one case that it concedes granted a new trial for excessive damages, Chambers v. Robinson, 2 Str. 691, 93 Eng. Rep. 787 (K. B. 1726), although it characterizes the case as wrongly decided. Third, to say that "there is not one single case in all the books" is to say very little, because then, much more so than now, only a small proportion of decided cases was reported. For example, for 1764, the year Beardmore was decided, only 16 Common Pleas cases are recorded in the standard reporter. 2 Wils. 208-257, 95 Eng. Rep. 769-797. Finally, the inference respondent would draw, that 18th-century English common law did not permit a judge to order new trials for excessive damages, is explicitly rejected by Beardmore itself, *424 which cautioned against that very inference: "We desired to be understood that this court does not say, or lay down any rule that there can never happen a case of such excessive damages in tort where the court may not grant a new trial." 2 Wils., at 250, 95 Eng. Rep., at 793. Common-law courts in the United States followed their English predecessors in providing judicial review of the size of damages awards. They too emphasized the deference ordinarily afforded jury verdicts, but they recognized that juries sometimes awarded damages so high as to require correction. Thus, in 1822, Justice Story, sitting as Circuit Justice, ordered a new trial unless the plaintiff agreed to a reduction in his damages.[3] In explaining his ruling, he noted: "As to the question of excessive damages, I agree, that the court may grant a new trial for excessive damages. It is indeed an exercise of discretion full of delicacy and difficulty. But if it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other case." (No. 1,578) (CC Mass. 1822). See also (No. 17, 516) (CC Me. 1843). *425 In the 19th century, both before and after the ratification of the Fourteenth Amendment, many American courts reviewed damages for "partiality" or "passion and prejudice." Nevertheless, because of the difficulty of probing juror reasoning, passion and prejudice review was, in fact, review of the amount of awards. Judges would infer passion, prejudice, or partiality from the size of the ; ; ; Belknap v. Boston & Maine R. Co., 49 N. H. 358, 374 (1870) (setting aside & compensatory[49] punitive both and damages, because "[w]e think it evident that the jury were affected by some partiality or prejudice"). Nineteenth-century treatises similarly recognized judges' authority to award new trials on the basis of the size of damages awards. 1 D. Graham, A Treatise on the Law of New Trials 442 (2d ed. 1855) ("[E]ven in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice and passion, the court will interfere for the relief *426 of the defendant, and order a new trial"); T. Sedgwick, A Treatise on the Measure of Damages 707 (5th ed. 1869) ("The court again holds itself at liberty to set aside verdicts and grant new trials whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance"); 3 J. Sutherland, A Treatise on the Law of Damages 469 (1883) (When punitive damages are submitted to the jury, "the amount which they may think proper to allow will be accepted by the court, unless so exorbitant as to indicate that they have been influenced by passion, prejudice or a perverted judgment"). Modern practice is consistent with these earlier authorities. In the federal courts and in every State, except Oregon, judges review the size of damages awards. See ; ; Alexander & Alexander, -711, cert. denied, ; Texaco, v. Pennzoil, Co., ; ; Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases, 12 A. L. R. 5th 195 ; Schnapper, Judges Against Juries— Appellate Review of Federal Civil Jury Verdicts, IV There is a dramatic difference between the judicial review of punitive damages awards under the common law and the scope of review available in Oregon. An Oregon trial judge, or an Oregon appellate court, may order a new trial if the jury was not properly instructed, if error occurred during the trial, or if there is no evidence to support any punitive damages at all. But if the defendant's only basis for relief is the amount of punitive damages the jury awarded, Oregon *427 provides no procedure for reducing or setting aside that award. This has been the law in Oregon at least since when the State Supreme Court announced its opinion in Van definitively construing the 1910 amendment to the Oregon Constitution.[5] In that case the court held that it had no power to reduce or set aside an award of both compensatory and punitive damages that was admittedly excessive.[6] It recognized that the constitutional amendment placing a limitation on its power was a departure from the traditional common-law approach.[7] That opinion's characterization of Oregon's "lonely eminence" in this regard, at 210 P.2d, is still an accurate portrayal of its unique position. Every other State in the Union affords postverdict judicial review of the *428 amount of a punitive damages award, see and subsequent decisions have reaffirmed Oregon judges' lack of authority to order new trials or other relief to remedy excessive damages. 202 Ore. 3, ;, 873 P.2d 3 Respondent argues that Oregon's procedures do not deviate from common-law practice, because Oregon judges have the power to examine the size of the award to determine whether the jury was influenced by passion and prejudice. This is simply incorrect. The earliest Oregon cases interpreting the 1910 amendment squarely held that Oregon courts lack precisely that power. ; McCulley v. Homestead Bakery, 1 Ore. 460, Although dicta in later cases have suggested that the issue might eventually be revisited, see Van the earlier holdings remain Oregon law. No Oregon court for more than half a century has inferred passion and prejudice from the size of a damages award, and no court in more than a decade has even hinted that courts might possess the power to do so.[8] Finally, if Oregon courts *429 could evaluate the excessiveness of punitive damages awards through passion and prejudice review, the Oregon Supreme Court would have mentioned that power in this very case. Petitioners argued that Oregon procedures were unconstitutional precisely because they failed to provide judicial review of the size of punitive damages awards. The Oregon Supreme Court responded by rejecting the idea that judicial review of the size of punitive damages awards was required by As the court noted, two state appellate courts, including the California Supreme Court, had reached the opposite conclusion. at n. 851 P.2d, at n. If, as respondent claims, Oregon law provides passion and prejudice review of excessive verdicts, the Oregon Supreme Court would have had a more obvious response to petitioners' argument. Respondent also argues that Oregon provides adequate review, because the trial judge can overturn a punitive damages award if there is no substantial evidence to support an award of punitive damages. See 202 Ore., at 274 P.2d, at This argument is unconvincing, because the review provided by Oregon courts ensures only that there is evidence to support some punitive damages, not that there is evidence to support the amount actually awarded. While Oregon's judicial review ensures that punitive damages are not awarded against defendants entirely innocent of conduct warranting exemplary damages, Oregon, unlike the common law, provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. What we are concerned with is the possibility that a culpable defendant may be unjustly punished; evidence of culpability warranting some punishment is not a substitute for evidence providing at least a rational basis for the particular deprivation of property imposed by the State to deter future wrongdoing. *430 V Oregon's abrogation of a well-established common-law protection against arbitrary deprivations of property raises a presumption that its procedures violate the Due Process Clause. As this Court has stated from its first due cases, traditional practice provides a touchstone for constitutional analysis. Murray's ; ; ; In re ; ; Pacific Mut. Life Ins. Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial. In fact, most of our due decisions involve arguments that traditional procedures provide too little protection and that additional safeguards are necessary to ensure compliance with the Constitution. ; ; Pacific Mut. Life Ins. Nevertheless, there are a handful of cases in which a party has been deprived of liberty or property without the safeguards of common-law procedure. ; ; ; In re Oliver, ; In re 397 U. S., at When the absent procedures would have provided protection against arbitrary and inaccurate adjudication, this Court has not hesitated to find the proceedings violative of due ; ; In re Oliver, ; In re 397 U. S., at Of course, not all deviations from established procedures result in constitutional infirmity. As the Court noted in Hurtado, to hold all procedural *431 change unconstitutional "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." A review of the cases, however, suggests that the case before us is unlike those in which abrogations of common-law procedures have been upheld. In Hurtado, for example, examination by a neutral magistrate provided criminal defendants with nearly the same protection as the abrogated common-law grand jury procedure. Oregon, by contrast, has provided no similar substitute for the protection provided by judicial review of the amount awarded by the jury in punitive damages. Similarly, in International Shoe this Court upheld the extension of state-court jurisdiction over persons not physically present, in spite of contrary well-established prior practice. That change, however, was necessitated by the growth of a new business entity, the corporation, whose ability to conduct business without physical presence had created new problems not envisioned by rules developed in another era. See In addition, the dramatic improvements in communication and transportation made litigation in a distant forum less onerous. No similar social changes suggest the need for Oregon's abrogation of judicial review, nor do improvements in technology render unchecked punitive damages any less onerous. If anything, the rise of large, interstate and multinational corporations has aggravated the problem of arbitrary awards and potentially biased juries.[9] *432 Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences. Judicial review of the amount awarded was one of the few procedural safeguards which the common law provided against that danger. Oregon has removed that safeguard without providing any substitute procedure and without any indication that the danger of arbitrary awards has in any way subsided over time. For these reasons, we hold that Oregon's denial of judicial review of the size of punitive damages awards violates the Due Process Clause of the Fourteenth Amendment.[10] VI Respondent argues that Oregon has provided other safeguards against arbitrary awards and that, in any event, the exercise of this unreviewable power by the jury is consistent with the jury's historic role in our judicial system. Respondent points to four safeguards provided in the Oregon courts: the limitation of punitive damages to the amount specified in the complaint, the clear and convincing standard of proof, preverdict determination of maximum allowable punitive damages, and detailed jury instructions. The first, *433 limitation of punitive damages to the amount specified, is hardly a constraint at all, because there is no limit to the amount the plaintiff can request, and it is unclear whether an award exceeding the amount requested could be set aside. See 873 P.2d 3 The second safeguard, the clear and convincing standard of proof, is an important check against unwarranted imposition of punitive damages, but, like the "no substantial evidence" review it provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. Regarding the third purported constraint, respondent cites no cases to support the idea that Oregon courts do or can set maximum punitive damages awards in advance of the verdict. Nor are we aware of any court which implements that procedure. Respondent's final safeguard, proper jury instruction, is a wellestablished and, of course, important check against excessive awards. The problem that concerns us, however, is the possibility that a jury will not follow those instructions and may return a lawless, biased, or arbitrary verdict.[11] *434 In support of his argument that there is a historic basis for making the jury the final arbiter of the amount of punitive damages, respondent calls our attention to early civil and criminal cases in which the jury was allowed to judge the law as well as the facts. See As we have already explained, in civil cases, the jury's discretion to determine the amount of damages was constrained by judicial review.[12] The criminal cases do establish—as does our practice today—that a jury's arbitrary decision to acquit a defendant charged with a crime is completely unreviewable. There is, however, a vast difference between arbitrary grants of freedom and arbitrary deprivations of liberty or property. The Due Process Clause has nothing to say about the former, but its whole purpose is to prevent the latter. A decision to punish a tortfeasor by means of an exaction of *435 exemplary damages is an exercise of state power that must comply with the Due Process Clause of the Fourteenth Amendment. The common-law practice, the procedures applied by every other State, the strong presumption favoring judicial review that we have applied in other areas of the law, and elementary considerations of justice all support the conclusion that such a decision should not be committed to the unreviewable discretion of a jury. The judgment is reversed, and the case is remanded to the Oregon Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Stewart

majority

Procunier v. Atchley

https://www.courtlistener.com/opinion/108231/procunier-v-atchley/

https://www.courtlistener.com/api/rest/v3/clusters/108231/

1970-025

In 1959 a jury in a California trial court found the respondent guilty of murdering his wife by firing six bullets into her body at close range. A key prosecution witness at the trial was Ray Travers, an insurance agent. Two days after the respondent's wife was killed, Travers visited the respondent in jail at the latter's request, and the two conversed regarding an insurance policy on the life of the decedent. During the course of this conversation the respondent told Travers his version of how his wife had been killed, admitting that he had lain in wait for her with a gun, but insisting that her shooting had been accidental. As he was leaving the jail, Travers told the sheriff's officers about the respondent's statement. They asked him if he would be willing to have his next conversation with the respondent electronically recorded, and, since he planned to return to get additional information for the insurance company, he agreed. Later the same day Travers returned to the jail and had another conversation with the respondent, in the course of which the respondent again gave Travers substantially the same account of the circumstances of his wife's death. This conversation was recorded.[1] Over the objection of defense counsel, the recording of the second conversation was admitted in evidence at the trial. Travers in detailed testimony verified the authenticity of the recording, and orally recounted the two conversations he had had with the respondent. The accuracy of the recording and of Travers' testimony was not questioned; indeed, when the respondent took the stand he gave substantially the same account of how his wife had been killed that he had given to Travers. *448 On appeal to the Supreme Court of California, the respondent contended that the second conversation with Travers was an involuntary confession, and that the record of the conversation and Travers' supporting testimony had, therefore, been wrongly admitted in evidence at the trial. The state appellate court unanimously rejected this contention and affirmed the conviction. People v. Atchley, 53 Cal. 2d 160, 346 P.2d 764. Proceeding upon the proposition that "any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily," Justice Traynor's opinion for the Supreme Court of California reasoned as follows: "Travers testified that no threats were made, that no inducements were offered, and that in an earlier conversation defendant had volunteered substantially the same statements without being asked. Defendant at no time contradicted this testimony or suggested that any of his recorded statements were untrue. Moreover, the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers. The trial court listened to the tape in chambers before ruling on its admissibility. There is therefore no merit in defendant's contention that the recording was admitted without a proper showing that his statements were made voluntarily. "Defendant also contends that the recording was obtained by such fraud that its use as evidence was inconsistent with due process. He relies primarily on Leyra v. Denno, 347 U.S. 556. . . . Although there was a similar deception in the present case, there was no comparable mental coercion. The deception itself does not render defendant's statements *449 inadmissible, for it was not of a type reasonably likely to procure an untrue statement. . . . "While cross-examining Travers as to the voluntariness of defendant's recorded statements, defense counsel attempted to ask whether defendant had complained to Travers of not being permitted by the police, despite numerous requests, to talk to a lawyer. The trial court sustained an objection to this question and explained to the jury that the answer would have no bearing on the question of voluntariness. Defendant correctly contends that this ruling was erroneous, but fails to show that it was prejudicial. Although a refusal to permit defendant to talk to counsel suggests an intent to coerce, it seems highly improbable that either the trial judge or the jury would have inferred coercion from such a refusal alone in the light of the substantial and uncontradicted evidence that no coercion occurred." 53 Cal. 2d, at 170-171, 346 P. 2d, at 769-770. This Court granted certiorari.[2] After hearing argument, we disposed of the case as follows: "After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed."[3] In 1967 the respondent initiated the present habeas corpus proceeding in the United States District Court for the Northern District of California. He contended that decisions of this Court rendered subsequent to his direct appeal had established that the recording of his conversation with Travers had been unconstitutionally *450 introduced into evidence, and that he was accordingly entitled to a new trial. It was asserted that his statements were involuntary under the criteria stated in Johnson v. New Jersey, 384 U.S. 719, because he had been denied access to a lawyer and because he had not been advised of his right to remain silent; and that in any event the procedures used to determine the voluntariness of these statements were constitutionally inadequate under the criteria stated in Jackson v. Denno, 378 U.S. 368. The District Court, although making clear that it was not "presently able to say that the confession was involuntary," nonetheless concluded that the respondent was entitled to relief because the state trial court had "excluded relevant and perhaps crucial evidence on the issue of whether the confession was voluntary" and thus "did not reliably determine whether Atchley's confession was voluntary or involuntary." 300 F. Supp. 68, 71, 72. The excluded evidence that the District Court thought "relevant and perhaps crucial" had to do with what the police had said to Travers before the recorded interview, whether the respondent had been trying to obtain a lawyer, whether Travers had deceived the respondent about his motives and feigned sympathy, whether the respondent knew that the conversation was being recorded, and, finally, with the respondent's intellectual and educational qualifications. Because inquiry into these matters had been restricted, the federal court held that the wrong standard of voluntariness had been applied in the state trial proceeding. Accordingly, the District Court ruled that the respondent was entitled to a new hearing in the state courts on the issue of voluntariness and, in the event that the statements should be found involuntary, to a new trial. The Court of Appeals[4] affirmed on the *451 opinion of the District Court, Judge Barnes dissenting, and we granted certiorari.[5] In Jackson, the Court held that to commit the determination of the voluntariness of a confession solely to the same jury that decided guilt was inconsistent with the constitutional requirement that the procedures used to determine voluntariness be reliable. Concern for the reliability of the procedures utilized to decide the voluntariness issue was also reflected in Townsend v. Sain, 372 U.S. 293, where it was held that a state trial court's resolution of a disputed issue of historical fact could not be dispositive in a later federal habeas corpus proceeding unless the petitioner had had a "full and fair hearing" on that issue in the trial court.[6] But those decisions did not establish that an applicant for federal habeas corpus is entitled to a new hearing on the voluntariness issue, in either the federal or state courts, merely because he can point to shortcomings in the procedures used to decide the issue of voluntariness in the state courts. Our decisions make clear that he must also show that his version of events, if true, would require the conclusion that his confession was involuntary. Thus in Townsend v. Sain, supra, we did not reach the question whether a hearing was required until we had determined, as a threshold matter, that the application for habeas corpus alleged facts which, if true, would establish that the petitioner had been deprived of constitutional rights by the use of an involuntary confession. 372 U.S., at 309. We said that "the Federal District Court could not conclude that the state trial judge admitted the confession because he disbelieved the evidence which would show that it was involuntary." Id., *452 at 321. And in Jackson v. Denno, supra, we did not jump from the premise that the procedures used to determine voluntariness were inadequate, to the conclusion that the petitioner was entitled to a new hearing. Instead, we pointed out: "This is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards. Here there are substantial facts in dispute. . . . Whether Jackson is entitled to relief depends upon how these facts are resolved, for if the State is to be believed we cannot say that Jackson's confession was involuntary, whereas if Jackson's version of the facts is accepted the confession was involuntary and inadmissible." 378 U.S., at 391-392. The reason for this approach is obvious. Unless the result of the habeas corpus proceeding turns on disputed issues of historical fact, a rehearing on the issue of the involuntariness of a defendant's incriminating statement would be an exercise in futility, since the applicant for federal habeas would not be entitled to relief even if his allegations of historical fact should be found to be true. Yet the District Court in this case quite evidently failed to make the threshold determination that the respondent would be entitled to relief if his allegations were believed. Rather the court, disavowing any present ability to say whether the respondent's statement was involuntary, said only that "the trial court could have more competently determined whether [the respondent's] will was overborne" had the circumstances surrounding the statement been more fully explored. 300 F. Supp., at 72. The respondent's trial took place several years before the decisions of the Court in Escobedo v. Illinois, 378 *453 U. S. 478, and Miranda v. Arizona, 384 U.S. 436, and those decisions have not been given retroactive effect. Johnson v. New Jersey, 384 U.S. 719. The admissibility of the respondent's statement as a constitutional matter was governed, therefore, by the contemporary case law elaborating the due process standard of voluntariness. The question was whether the will of the defendant had been overborne so that the statement was not his free and voluntary act, and that question was to be resolved in light of the totality of the circumstances. See, e. g., Davis v. North Carolina, 384 U.S. 737; Haynes v. Washington, 373 U.S. 503, 513-516; Spano v. New York, 360 U.S. 315, 323; Ashcraft v. Tennessee, 322 U.S. 143, 147-148. There is no reason to infer that the Supreme Court of California did not apply the correct constitutional criteria in reviewing the issue, and the court quite clearly assumed the truth of the respondent's version of the historical facts still in dispute, in holding that his statement was not involuntary. The respondent contended that his confession was involuntary because he had been denied a lawyer, because he had not been advised of his right to remain silent, because he had thought he was giving Travers information that Travers needed to obtain the insurance money, because he had thought that what he told Travers would be held in confidence, because he had not known that his conversation with Travers was being recorded, and because he was lower than average in intelligence and educational attainments. Of these six assertedly coercive factors, three went only to the weight to be given other evidence of actual coercion. Low intelligence, denial of the right to counsel, and failure to advise of the right to remain silent were not in themselves coercive. Rather they were relevant only in establishing a setting in which actual coercion might have been exerted to overcome *454 the will of the suspect. See Darwin v. Connecticut, 391 U.S. 346; Greenwald v. Wisconsin, 390 U.S. 519; Davis v. North Carolina, supra. The circumstance that the conversation was recorded without the respondent's knowledge did not tend to show either actual coercion or a potentially coercive setting. The factual issue whether the respondent thought his statements to Travers would be held in confidence was resolved in the trial court. Travers testified that he advised the respondent that what he said would have to be reported to the insurance company and that the respondent knew it would be a matter of record. This testimony was not contradicted, and there was no reason for the California Supreme Court to disturb the finding, implicit in the trial record, that the respondent had had no reason to believe that Travers would not repeat what he had been told. See Townsend v. Sain, 372 U.S. 293, 314. The remaining contention was that the respondent's statement was improperly induced by the suggestion that Travers needed the information in order to obtain insurance money for Atchley's children and stepchildren. The California Supreme Court properly found that "the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers." It is clear that the California courts gave full consideration to the issue of the voluntariness of the respondent's statement, and that they applied correct standards of constitutional law in upholding its admission in evidence. Accordingly, the District Court was in error in requiring a new trial of claims that were long ago fully, fairly, and correctly determined in the courts of California. The judgment is reversed. MR. JUSTICE BLACK concurs in the judgment and substantially all of the opinion.

In 1959 a jury in a California trial court found the respondent guilty of murdering his wife by firing six bullets into her body at close range. A key prosecution witness at the trial was Ray Travers, an insurance agent. Two days after the respondent's wife was killed, Travers visited the respondent in jail at the latter's request, and the two conversed regarding an insurance policy on the life of the decedent. During the course of this conversation the respondent told Travers his version of how his wife had been killed, admitting that he had lain in wait for her with a gun, but insisting that her shooting had been accidental. As he was leaving the jail, Travers told the sheriff's officers about the respondent's statement. They asked him if he would be willing to have his next conversation with the respondent electronically recorded, and, since he planned to return to get additional information for the insurance company, he agreed. Later the same day Travers returned to the jail and had another conversation with the respondent, in the course of which the respondent again gave Travers substantially the same account of the circumstances of his wife's death. This conversation was recorded.[1] Over the objection of defense counsel, the recording of the second conversation was admitted in evidence at the trial. Travers in detailed testimony verified the authenticity of the recording, and orally recounted the two conversations he had had with the respondent. The accuracy of the recording and of Travers' testimony was not questioned; indeed, when the respondent took the stand he gave substantially the same account of how his wife had been killed that he had given to Travers. *448 On appeal to the Supreme Court of California, the respondent contended that the second conversation with Travers was an involuntary confession, and that the record of the conversation and Travers' supporting testimony had, therefore, been wrongly admitted in evidence at the trial. The state appellate court unanimously rejected this contention and affirmed the conviction. Proceeding upon the proposition that "any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily," Justice Traynor's opinion for the Supreme Court of California reasoned as follows: "Travers testified that no threats were made, that no inducements were offered, and that in an earlier conversation defendant had volunteered substantially the same statements without being asked. Defendant at no time contradicted this testimony or suggested that any of his recorded statements were untrue. Moreover, the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers. The trial court listened to the tape in chambers before ruling on its admissibility. There is therefore no merit in defendant's contention that the recording was admitted without a proper showing that his statements were made voluntarily. "Defendant also contends that the recording was obtained by such fraud that its use as evidence was inconsistent with due process. He relies primarily on Although there was a similar deception in the present case, there was no comparable mental The deception itself does not render defendant's statements *449 inadmissible, for it was not of a type reasonably likely to procure an untrue statement. "While cross-examining Travers as to the voluntariness of defendant's recorded statements, defense counsel attempted to ask whether defendant had complained to Travers of not being permitted by the police, despite numerous requests, to talk to a lawyer. The trial court sustained an objection to this question and explained to the jury that the answer would have no bearing on the question of voluntariness. Defendant correctly contends that this ruling was erroneous, but fails to show that it was prejudicial. Although a refusal to permit defendant to talk to counsel suggests an intent to coerce, it seems highly improbable that either the trial judge or the jury would have inferred from such a refusal alone in the light of the substantial and uncontradicted evidence that no occurred." -171, 346 P. 2d, at 769-770. This Court granted certiorari.[2] After hearing argument, we disposed of the case as follows: "After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed."[3] In 1967 the respondent initiated the present habeas corpus proceeding in the United States District Court for the Northern District of California. He contended that decisions of this Court rendered subsequent to his direct appeal had established that the recording of his conversation with Travers had been unconstitutionally *450 introduced into evidence, and that he was accordingly entitled to a new trial. It was asserted that his statements were involuntary under the criteria stated in because he had been denied access to a lawyer and because he had not been advised of his right to remain silent; and that in any event the procedures used to determine the voluntariness of these statements were constitutionally inadequate under the criteria stated in The District Court, although making clear that it was not "presently able to say that the confession was involuntary," nonetheless concluded that the respondent was entitled to relief because the state trial court had "excluded relevant and perhaps crucial evidence on the issue of whether the confession was voluntary" and thus "did not reliably determine whether Atchley's confession was voluntary or involuntary." The excluded evidence that the District Court thought "relevant and perhaps crucial" had to do with what the police had said to Travers before the recorded interview, whether the respondent had been trying to obtain a lawyer, whether Travers had deceived the respondent about his motives and feigned sympathy, whether the respondent knew that the conversation was being recorded, and, finally, with the respondent's intellectual and educational qualifications. Because inquiry into these matters had been restricted, the federal court held that the wrong standard of voluntariness had been applied in the state trial proceeding. Accordingly, the District Court ruled that the respondent was entitled to a new hearing in the state courts on the issue of voluntariness and, in the event that the statements should be found involuntary, to a new trial. The Court of Appeals[4] affirmed on the *451 opinion of the District Court, Judge Barnes dissenting, and we granted certiorari.[5] In Jackson, the Court held that to commit the determination of the voluntariness of a confession solely to the same jury that decided guilt was inconsistent with the constitutional requirement that the procedures used to determine voluntariness be reliable. Concern for the reliability of the procedures utilized to decide the voluntariness issue was also reflected in where it was held that a state trial court's resolution of a disputed issue of historical fact could not be dispositive in a later federal habeas corpus proceeding unless the petitioner had had a "full and fair hearing" on that issue in the trial court.[6] But those decisions did not establish that an applicant for federal habeas corpus is entitled to a new hearing on the voluntariness issue, in either the federal or state courts, merely because he can point to shortcomings in the procedures used to decide the issue of voluntariness in the state courts. Our decisions make clear that he must also show that his version of events, if true, would require the conclusion that his confession was involuntary. Thus in we did not reach the question whether a hearing was required until we had determined, as a threshold matter, that the application for habeas corpus alleged facts which, if true, would establish that the petitioner had been deprived of constitutional rights by the use of an involuntary We said that "the Federal District Court could not conclude that the state trial judge admitted the confession because he disbelieved the evidence which would show that it was involuntary." *452 at 321. And in we did not jump from the premise that the procedures used to determine voluntariness were inadequate, to the conclusion that the petitioner was entitled to a new hearing. Instead, we pointed out: "This is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards. Here there are substantial facts in dispute. Whether Jackson is entitled to relief depends upon how these facts are resolved, for if the State is to be believed we cannot say that Jackson's confession was involuntary, whereas if Jackson's version of the facts is accepted the confession was involuntary and inadmissible." -392. The reason for this approach is obvious. Unless the result of the habeas corpus proceeding turns on disputed issues of historical fact, a rehearing on the issue of the involuntariness of a defendant's incriminating statement would be an exercise in futility, since the applicant for federal habeas would not be entitled to relief even if his allegations of historical fact should be found to be true. Yet the District Court in this case quite evidently failed to make the threshold determination that the respondent would be entitled to relief if his allegations were believed. Rather the court, disavowing any present ability to say whether the respondent's statement was involuntary, said only that "the trial court could have more competently determined whether [the respondent's] will was overborne" had the circumstances surrounding the statement been more fully The respondent's trial took place several years before the decisions of the Court in and and those decisions have not been given retroactive effect. The admissibility of the respondent's statement as a constitutional matter was governed, therefore, by the contemporary case law elaborating the due process standard of voluntariness. The question was whether the will of the defendant had been overborne so that the statement was not his free and voluntary act, and that question was to be resolved in light of the totality of the circumstances. See, e. g., ; ; ; There is no reason to infer that the Supreme Court of California did not apply the correct constitutional criteria in reviewing the issue, and the court quite clearly assumed the truth of the respondent's version of the historical facts still in dispute, in holding that his statement was not involuntary. The respondent contended that his confession was involuntary because he had been denied a lawyer, because he had not been advised of his right to remain silent, because he had thought he was giving Travers information that Travers needed to obtain the insurance money, because he had thought that what he told Travers would be held in confidence, because he had not known that his conversation with Travers was being recorded, and because he was lower than average in intelligence and educational attainments. Of these six assertedly coercive factors, three went only to the weight to be given other evidence of actual Low intelligence, denial of the right to counsel, and failure to advise of the right to remain silent were not in themselves coercive. Rather they were relevant only in establishing a setting in which actual might have been exerted to overcome *454 the will of the suspect. See ; ; The circumstance that the conversation was recorded without the respondent's knowledge did not tend to show either actual or a potentially coercive setting. The factual issue whether the respondent thought his statements to Travers would be held in confidence was resolved in the trial court. Travers testified that he advised the respondent that what he said would have to be reported to the insurance company and that the respondent knew it would be a matter of record. This testimony was not contradicted, and there was no reason for the California Supreme Court to disturb the finding, implicit in the trial record, that the respondent had had no reason to believe that Travers would not repeat what he had been told. See The remaining contention was that the respondent's statement was improperly induced by the suggestion that Travers needed the information in order to obtain insurance money for Atchley's children and stepchildren. The California Supreme Court properly found that "the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers." It is clear that the California courts gave full consideration to the issue of the voluntariness of the respondent's statement, and that they applied correct standards of constitutional law in upholding its admission in evidence. Accordingly, the District Court was in error in requiring a new trial of claims that were long ago fully, fairly, and correctly determined in the courts of California. The judgment is reversed. MR. JUSTICE BLACK concurs in the judgment and substantially all of the opinion.

Justice Marshall

dissenting

Rhodes v. Stewart

https://www.courtlistener.com/opinion/112151/rhodes-v-stewart/

https://www.courtlistener.com/api/rest/v3/clusters/112151/

1988-001

I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court's decisions *5 to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. Buchanan v. Stanships, Inc., 485 U.S. 265, 269-270 (1988) (MARSHALL, J., dissenting); Commissioner v. McCoy, 484 U.S. 3, 7-8 (1987) (MARSHALL, J., dissenting); Montana v. Hall, 481 U.S. 400, 405-410 (1987) (MARSHALL, J., dissenting). The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court's review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking review by this Court and deprives them of the opportunity to argue the merits of their claim before judgment. Moreover, briefing on the merits leads to greater accuracy in our decisions and helps this Court to reduce as much as is humanly possible the inevitable incidence of error in our opinions. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court. It is my view that when the Court is considering summary disposition of a case, it should, at the very least, so inform the litigants and invite them to submit supplemental briefs on the merits. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than outweigh any burden associated with such a modest accommodation. I dissent.

I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court's decisions *5 to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. ; ; The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court's review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking review by this Court and deprives them of the opportunity to argue the merits of their claim before judgment. Moreover, briefing on the merits leads to greater accuracy in our decisions and helps this Court to reduce as much as is humanly possible the inevitable incidence of error in our opinions. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court. It is my view that when the Court is considering summary disposition of a case, it should, at the very least, so inform the litigants and invite them to submit supplemental briefs on the merits. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than outweigh any burden associated with such a modest accommodation. I dissent.

Justice Ginsburg

dissenting

Amoco Production Co. v. Southern Ute Tribe

https://www.courtlistener.com/opinion/118297/amoco-production-co-v-southern-ute-tribe/

https://www.courtlistener.com/api/rest/v3/clusters/118297/

1998-067

I would affirm the judgment below substantially for the reasons stated by the Court of Appeals and the federal respondents. See 151 F.3d 1251, 1256-1267 (CA10 1998) (en banc); Brief for Federal Respondents 14-16. As the Court recognizes, in 1909 and 1910 coalbed methane gas (CBM) was a liability. See ante, at 870-871, 875-876. Congress did not contemplate that the surface owner would be responsible for it. More likely, Congress would have assumed that the coal owner had dominion over, and attendant responsibility for, CBM. I do not find it clear that Congress understood dominion would shift if and when the liability became an asset. I would therefore apply the canon that ambiguities in land grants are construed in favor of the sovereign. See Watt v. Western Nuclear, Inc., 462 U.S. 36, 59 (1983) (noting "established rule that land grants are construed *881 favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it" (internal quotation marks omitted)).

I would affirm the judgment below substantially for the reasons stated by the Court of Appeals and the federal respondents. See ; Brief for Federal Respondents 14-16. As the Court recognizes, in 1909 and 1910 coalbed methane gas (CBM) was a liability. See ante, at 870-871, 875-876. Congress did not contemplate that the surface owner would be responsible for it. More likely, Congress would have assumed that the coal owner had dominion over, and attendant responsibility for, CBM. I do not find it clear that Congress understood dominion would shift if and when the liability became an asset. I would therefore apply the canon that ambiguities in land grants are construed in favor of the sovereign. See

Justice Kagan

majority

Sveen v. Melin

https://www.courtlistener.com/opinion/4505999/sveen-v-melin/

https://www.courtlistener.com/api/rest/v3/clusters/4505999/

2017-063

A Minnesota law provides that “the dissolution or an- nulment of a marriage revokes any revocable[] beneficiary designation[ ] made by an individual to the individual’s former spouse.” Minn. Stat. §524.2–804, subd. 1 (2016). That statute establishes a default rule for use when Min- nesotans divorce. If one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation—on the theory that the policyholder would want that result. But if he does not, the policyholder may rename the ex-spouse as beneficiary. We consider here whether applying Minnesota’s automatic- revocation rule to a beneficiary designation made before the statute’s enactment violates the Contracts Clause of the Constitution. We hold it does not. I All good trust-and-estate lawyers know that “[d]eath is not the end; there remains the litigation over the estate.” 8 The Collected Works of Ambrose Bierce 365 (1911). That epigram, beyond presaging this case, helps explain the statute at its center. 2 SVEEN v. MELIN Opinion of the Court The legal system has long used default rules to resolve estate litigation in a way that conforms to decedents’ presumed intent. At common law, for example, marriage automatically revoked a woman’s prior will, while mar- riage and the birth of a child revoked a man’s. See 4 J. Kent, Commentaries on American Law 507, 512 (1830). The testator could then revive the old will or execute a new one. But if he (or she) did neither, the laws of intes- tate succession (generally prioritizing children and current spouses) would control the estate’s distribution. See 95 C. J. S., Wills §448, pp. 409–410 (2011); R. Sitkoff & J. Dukeminier, Wills, Trusts, and Estates 63 (10th ed. 2017). Courts reasoned that the average person would prefer that allocation to the one in the old will, given the intervening life events. See T. Atkinson, Handbook of the Law of Wills 423 (2d ed. 1953). If he’d only had the time, the thought went, he would have replaced that will himself. Changes in society brought about changes in the laws governing revocation of wills. In addition to removing gender distinctions, most States abandoned the common- law rule canceling whole wills executed before a marriage or birth. In its place, they enacted statutes giving a new spouse or child a specified share of the decedent’s estate while leaving the rest of his will intact. See Sitkoff & Dukeminier, Wills, Trusts, and Estates, at 240. But more important for our purposes, climbing divorce rates led almost all States by the 1980s to adopt another kind of automatic-revocation law. So-called revocation-on- divorce statutes treat an individual’s divorce as voiding a testamentary bequest to a former spouse. Like the old common-law rule, those laws rest on a “judgment about the typical testator’s probable intent.” Id., at 239. They presume, in other words, that the average Joe does not want his ex inheriting what he leaves behind. Over time, many States extended their revocation-on- divorce statutes from wills to “will substitutes,” such as Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court revocable trusts, pension accounts, and life insurance policies. See Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1109 (1984) (describing nonprobate assets). In doing so, States followed the lead of the Uniform Probate Code, a model statute amended in 1990 to include a provision revoking on divorce not just testamentary bequests but also beneficiary designations to a former spouse. See §§2– 804(a)(1), (b)(1), 8 U. L. A. 330, 330–331 (2013). The new section, the drafters wrote, aimed to “unify the law of probate and nonprobate transfers.” §2–804, Comment, id., at 333. The underlying idea was that the typical decedent would no more want his former spouse to benefit from his pension plan or life insurance than to inherit under his will. A wealth transfer was a wealth transfer—and a former spouse (as compared with, say, a current spouse or child) was not likely to be its desired recipient. So a dece- dent’s failure to change his beneficiary probably resulted from “inattention,” not “intention.” Statement of the Joint Editorial Bd. for Uniform Probate Code, 17 Am. College Trust & Est. Counsel 184 (1991). Agreeing with that assumption, 26 States have by now adopted revocation-on- divorce laws substantially similar to the Code’s.1 Minne- —————— 1 See Ala. Code §30–4–17 (2016); Alaska Stat. §13.12.804 (2016); Ariz. Rev. Stat. Ann. §14–2804 (2012); Colo. Rev. Stat. §15–11–804 (2017); Fla. Stat. §732.703 (2017); Haw. Rev. Stat. §560:2–804 (2006); Idaho Code Ann. §15–2–804 (2017 Cum. Supp.); Iowa Code §598.20A (2017); Mass. Gen. Laws, ch. 190B, §2–804 (2016); Mich. Comp. Laws Ann. §700.2807 (West 2018 Cum. Supp.); Minn. Stat. §524.2–804 subd. 1 (2016); Mont. Code Ann. §72–2–814 (2017); Nev. Rev. Stat. §111.781 (2015); N. J. Stat. Ann. §3B:3–14 (West 2007); N. M. Stat. Ann. §45–2– 804 (2014); N. Y. Est., Powers & Trusts Law Ann. §5–1.4 (West 2018 Cum. Supp.); N. D. Cent. Code Ann. §30.1–10–04 (2010); Ohio Rev. Code Ann. §5815.33 (Lexis 2017); 20 Pa. Stat. and Cons. Stat. Ann. §6111.2 (2010); S. C. Code Ann. §62–2–507 (2017 Cum. Supp.); S. D. Codified Laws §29A–2–804 (2004); Tex. Fam. Code Ann. §9.301 (West 2006); Utah Code §75–2–804 (Supp. 2017); Va. Code Ann. §20–111.1 4 SVEEN v. MELIN Opinion of the Court sota is one. Under prior Minnesota law, a divorce alone did not affect a beneficiary designation—but a particular divorce decree could do so. Take first the simple case: Joe names his wife Ann as beneficiary of his insurance policy, later gets divorced, but never changes the designation. Upon his death, Ann would receive the insurance proceeds— even if Joe had just forgotten to redirect the money. In other words, the insurance contract’s beneficiary provision would govern after the divorce, exactly as it would have before. See Larsen v. Northwestern Nat. Life Ins. Co., 463 N.W.2d 777, 779 (Minn. App. 1990). But now introduce a complication, in the form of a court addressing a spousal designation in a divorce decree. In Minnesota, as across the nation, divorce courts have always had “broad discre- tion in dividing property upon dissolution of a marriage.” Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001); see 24 Am. Jur. 2d, Divorce and Separation §456 (2008). In exercising that power, a court could revoke a beneficiary designation to a soon-to-be ex-spouse; or conversely, a court could mandate that the old designation remain. See, e.g., Paul v. Paul, 410 N.W.2d 329, 330 (Minn. App. 1987); O’Brien v. O’Brien, 343 N.W.2d 850, 853 (Minn. 1984). Either way, the court, rather than the insured, would decide whether the ex-spouse would stay the beneficiary. In contrast to the old law, Minnesota’s new revocation- on-divorce statute starts from another baseline: the can- cellation, rather than continuation, of a beneficiary desig- nation. Enacted in 2002 to track the Code, the law provides that “the dissolution or annulment of a marriage revokes any revocable[ ] disposition, beneficiary designa- tion, or appointment of property made by an individual to the individual’s former spouse in a governing instrument.” —————— (2016); Wash. Rev. Code §11.07.010 (2016); Wis. Stat. §854.15 (2011). Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court Minn. Stat. §524.2–804, subd. 1. The term “governing instrument” is defined to include an “insurance or annuity policy,” along with a will and other will substitutes. §524.1–201. So now when Joe and Ann divorce, the clause naming Ann as Joe’s insurance beneficiary is automatically revoked. If nothing else occurs before Joe’s death, his insurance proceeds go to any contingent beneficiary named in the policy (perhaps his daughter Emma) or, failing that, to his estate. See §524.2–804, subd. 2. Something else, however, may well happen. As under Minnesota’s former law, a divorce decree may alter the natural state of things. So in our example, the court could direct that Ann remain as Joe’s insurance beneficiary, despite the normal revocation rule. See §524.2–804, subd. 1 (providing that a “court order” trumps the rule). And just as important, the policyholder himself may step in to override the revocation. Joe, for example, could agree to a marital settlement ensuring Ann’s continued status as his beneficiary. See ibid. (providing that such an agreement controls). Or else, and more simply, he could notify his insurance company at any time that he wishes to restore Ann to that position. But enough of our hypothetical divorcees: It is time they give way to Mark Sveen and Kaye Melin, whose marriage and divorce led to this case. In 1997, Sveen and Melin wed. The next year, Sveen purchased a life insurance policy. He named Melin as the primary beneficiary, while designating his two children from a prior marriage, Ashley and Antone Sveen, as the contingent beneficiaries. The Sveen-Melin marriage ended in 2007. The divorce decree made no mention of the insurance policy. And Sveen took no action, then or later, to revise his beneficiary designa- tions. In 2011, he passed away. In this action, petitioners the Sveen children and re- spondent Melin make competing claims to the insurance proceeds. The Sveens contend that under Minnesota’s 6 SVEEN v. MELIN Opinion of the Court revocation-on-divorce law, their father’s divorce canceled Melin’s beneficiary designation and left the two of them as the rightful recipients. Melin notes in reply that the Minnesota law did not yet exist when her former husband bought his insurance policy and named her as the primary beneficiary. And she argues that applying the later- enacted law to the policy would violate the Constitution’s Contracts Clause, which prohibits any state “Law impair- ing the Obligation of Contracts.” Art. I, §10, cl. 1. The District Court rejected Melin’s argument and awarded the insurance money to the Sveens. See Civ. No. 14–5015 (D Minn., Jan. 7, 2016), App. to Pet. for Cert. 9a– 16a. But the Court of Appeals for the Eighth Circuit reversed. It held that a “revocation-upon-divorce statute like [Minnesota’s] violates the Contract Clause when applied retroactively.” 853 F.3d 410, 412 (2017). We granted certiorari, 583 U. S. ___ (2017), to resolve a split of authority over whether the Contracts Clause pre- vents a revocation-on-divorce law from applying to a pre- existing agreement’s beneficiary designation.2 We now reverse the decision below. II The Contracts Clause restricts the power of States to disrupt contractual arrangements. It provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.” U. S. Const., Art. I, §10, cl. 1. The origins of the Clause lie in legislation enacted after the Revolution- ary War to relieve debtors of their obligations to creditors. —————— 2 Compare 853 F.3d 410, 414 (CA8 2017) (case below) (yes, it does); Parsonese v. Midland Nat. Ins. Co., 550 Pa. 423, 434, 706 A.2d 814, 819 (1998) (same), with Lazar v. Kroncke, 862 F.3d 1186, 1199–1200 (CA9 2017) (no, it does not); Stillman v. Teachers Ins. & Annuity Assn. College Retirement Equities Fund, 343 F.3d 1311, 1322 (CA10 2003) (same); In re Estate of DeWitt, 54 P.3d 849, 859–860 (Colo. 2002) (same). Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 502–503 (1987). But the Clause applies to any kind of contract. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244–245, n. 16 (1978). That includes, as here, an insurance policy. At the same time, not all laws affecting pre-existing contracts violate the Clause. See El Paso v. Simmons, 379 U.S. 497, 506–507 (1965). To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has “operated as a substantial impairment of a con- tractual relationship.” Allied Structural Steel Co., 438 U.S., at 244. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. See id., at 246; El Paso, 379 U.S., at 514–515; Texaco, Inc. v. Short, 454 U.S. 516, 531 (1982). If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation. In particular, the Court has asked whether the state law is drawn in an “appropriate” and “reasonable” way to ad- vance “a significant and legitimate public purpose.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–412 (1983). Here, we may stop after step one because Minnesota’s revocation-on-divorce statute does not substantially im- pair pre-existing contractual arrangements. True enough that in revoking a beneficiary designation, the law makes a significant change. As Melin says, the “whole point” of buying life insurance is to provide the proceeds to the named beneficiary. Brief for Respondent 16. But three aspects of Minnesota’s law, taken together, defeat Melin’s argument that the change it effected “severely impaired” her ex-husband’s contract. Ibid. First, the statute is designed to reflect a policyholder’s intent—and so to sup- 8 SVEEN v. MELIN Opinion of the Court port, rather than impair, the contractual scheme. Second, the law is unlikely to disturb any policyholder’s expecta- tions because it does no more than a divorce court could always have done. And third, the statute supplies a mere default rule, which the policyholder can undo in a mo- ment. Indeed, Minnesota’s revocation statute stacks up well against laws that this Court upheld against Contracts Clause challenges as far back as the early 1800s.3 We now consider in detail each of the features that make this so. To begin, the Minnesota statute furthers the policyhold- er’s intent in many cases—indeed, the drafters reasonably thought in the typical one. As earlier described, legisla- tures have long made judgments about a decedent’s likely testamentary intent after large life changes—a marriage, a birth, or a divorce. See supra, at 2. And on that basis, they have long enacted statutes revoking earlier-made wills by operation of law. Legislative presumptions about divorce are now especially prevalent—probably because they accurately reflect the intent of most divorcing parties. Although there are exceptions, most divorcees do not aspire to enrich their former partners. (And that is true —————— 3 Because that is true, we have no occasion to address Melin’s conten- tion that we should abandon our two-step Contracts Clause test to whatever extent it departs from the Clause’s original meaning and earliest applications. See Brief for Respondent 6–10, 18–33. Part of Melin’s argument focuses on the back half of the test, which we do not reach today. Another part claims that the front half goes wrong in exempting insubstantial impairments from the Clause’s reach. But as we explain below, see infra, at 10–12, the Court has always recognized that some laws affect contracts without violating the Contracts Clause. See, e.g., Curtis v. Whitney, 13 Wall. 68, 70 (1872) (“No[t] every statute which affects the value of a contract impair[s] its obligation”). And in particular, the Court has always approved statutes like this one, which enable a party with only minimal effort to protect his original contract rights against the law’s operation. See, e.g., Jackson v. Lamphire, 3 Pet. 280, 290 (1830). So this case presents no clash, of the kind Melin says we should resolve, between the Court’s two-step test and any older approach to applying the Contracts Clause. Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court even when an ex-spouse has custody of shared children, given the many ways to provide them with independent support.) The Minnesota statute (like the model code it tracked) applies that understanding to beneficiary desig- nations in life insurance policies and other will substi- tutes. See supra, at 3–5. Melin rightly notes that this extension raises a brand-new constitutional question because “an insurance policy is a contract under the Con- tracts Clause, and a will is not.” Brief for Respondent 44 (internal quotation marks omitted). But in answering that question, it matters that the old legislative presump- tion equally fits the new context: A person would as little want his ex-spouse to benefit from his insurance as to collect under his will. Or said otherwise, the insured’s failure to change the beneficiary after a divorce is more likely the result of neglect than choice. And that means the Minnesota statute often honors, not undermines, the intent of the only contracting party to care about the beneficiary term. The law no doubt changes how the insurance contract operates. But does it impair the con- tract? Quite the opposite for lots of policyholders. And even when presumed and actual intent diverge, the Minnesota law is unlikely to upset a policyholder’s expec- tations at the time of contracting. That is because an insured cannot reasonably rely on a beneficiary designa- tion remaining in place after a divorce. As noted above, divorce courts have wide discretion to divide property between spouses when a marriage ends. See supra, at 4. The house, the cars, the sporting equipment are all up for grabs. See Judgment and Decree in 14–cv–5015 (D Minn.), p. 51 (awarding Melin, among other things, a snowmobile and all-terrain vehicle). And (what matters here) so too are the spouses’ life insurance policies, with their beneficiary provisions. Although not part of the Sveen-Melin divorce decree, they could have been; as Melin acknowledges, they sometimes are. See supra, at 4; 10 SVEEN v. MELIN Opinion of the Court Brief for Respondent 38. Melin counters that the Con- tracts Clause applies only to legislation, not to judicial decisions. See id., at 38–39; see also post, at 9 (GORSUCH, J., dissenting). That is true, but of no moment. The power of divorce courts over insurance policies is relevant here because it affects whether a party can reasonably expect a beneficiary designation to survive a marital breakdown. We venture to guess that few people, when purchasing life insurance, give a thought to what will happen in the event of divorce. But even if someone out there does, he can conclude only that . . . he cannot possibly know. So his reliance interests are next to nil. And as this Court has held before, that fact cuts against providing protection under the Contracts Clause. See, e.g., El Paso, 379 U.S., at 514–515. Finally, a policyholder can reverse the effect of the Minnesota statute with the stroke of a pen. The law puts in place a presumption about what an insured wants after divorcing. But if the presumption is wrong, the insured may overthrow it. And he may do so by the simple act of sending a change-of-beneficiary form to his insurer. (Or if he wants to commit himself forever, like Ulysses binding himself to the mast, he may agree to a divorce settlement continuing his ex-spouse’s beneficiary status. See supra, at 5.) That action restores his former spouse to the posi- tion she held before the divorce—and in so doing, cancels the state law’s operation. The statute thus reduces to a paperwork requirement (and a fairly painless one, at that): File a form and the statutory default rule gives way to the original beneficiary designation. In cases going back to the 1800s, this Court has held that laws imposing such minimal paperwork burdens do not violate the Contracts Clause. One set of decisions addresses so-called recording statutes, which extinguish contractual interests unless timely recorded at govern- ment offices. In Jackson v. Lamphire, 3 Pet. 280 (1830), Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court for example, the Court rejected a Contracts Clause chal- lenge to a New York law granting title in property to a later rather than earlier purchaser whenever the earlier had failed to record his deed. It made no difference, the Court held, whether the unrecorded deed was “dated before or after the passage” of the statute; in neither event did the law’s modest recording condition “impair[ ] the obligation of contracts.” Id., at 290. Likewise, in Vance v. Vance, 108 U.S. 514 (1883), the Court upheld a statute rendering unrecorded mortgages unenforceable against third parties—even when the mortgages predated the law. We reasoned that the law gave “due regard to existing contracts” because it demanded only that the mortgagee make a “public registration,” and gave him several months to do so. Id., at 517, 518. And more recently, in Texaco, Inc. v. Short, 454 U.S. 516 (1982), the Court held that a statute terminating pre-existing mineral interests unless the owner filed a “statement of claim” in a county office did not “unconstitutionally impair” a contract. Id., at 531. The filing requirement was “minimal,” we explained, and compliance with it would effectively “safeguard any con- tractual obligations or rights.” Ibid. So too, the Court has long upheld against Contracts Clause attack laws mandating other kinds of notifications or filings. In Curtis v. Whitney, 13 Wall. 68 (1872), for example, the Court approved a statute retroactively affect- ing buyers of “certificates” for land offered at tax sales. The law required the buyer to notify the tax-delinquent property owner, who could then put up the funds neces- sary to prevent the land’s final sale. If the buyer failed to give the notice, he could not take the land—and if he provided the notice, his chance of gaining the land de- clined. Still, the Court made short work of the Contracts Clause claim. Not “every statute which affects the value of a contract,” the Court stated, “impair[s] its obligation.” Id., at 70. Because the law’s notice rule was “easy [to] 12 SVEEN v. MELIN Opinion of the Court compl[y] with,” it did not raise a constitutional problem. Id., at 71. Similarly, in Gilfillan v. Union Canal Co. of Pa., 109 U.S. 401 (1883), the Court sustained a state law providing that an existing bondholder’s failure to reject a settlement proposal in writing would count as consent to the deal. The law operated to reduce the interest received by an investor who did not respond. Yet the Court re- buffed the ensuing Contracts Clause suit. “If [the bond- holder did] not wish to abandon his old rights and accept the new,” the Court explained, “all he ha[d] to do [was] to say so in writing.” Id., at 406. And one last: In Conley v. Barton, 260 U.S. 677 (1923), the Court held that the Contracts Clause did not bar a State from compelling existing mortgagees to complete affidavits before finally foreclosing on properties. The law effectively added a paperwork requirement to the mortgage contracts’ foreclo- sure terms. But the Court said it was “only [a] condition, easily complied with, which the law, for its purposes, requires.” Id., at 681. The Minnesota statute places no greater obligation on a contracting party—while imposing a lesser penalty for noncompliance. Even supposing an insured wants his life insurance to benefit his ex-spouse, filing a change-of- beneficiary form with an insurance company is as “easy” as, say, providing a landowner with notice or recording a deed. Curtis, 13 Wall., at 71. Here too, with only “mini- mal” effort, a person can “safeguard” his contractual pref- erences. Texaco, 454 U.S., at 531. And here too, if he does not “wish to abandon his old rights and accept the new,” he need only “say so in writing.” Gilfillan, 109 U.S., at 406. What’s more, if the worst happens—if he wants his ex-spouse to stay as beneficiary but does not send in his form—the consequence pales in comparison with the losses incurred in our earlier cases. When a person ig- nored a recording obligation, for example, he could forfeit the sum total of his contractual rights—just ask the plain- Cite as: 584 U. S. ____ (2018) 13 Opinion of the Court tiffs in Jackson and Vance. But when a policyholder in Minnesota does not redesignate his ex-spouse as benefi- ciary, his right to insurance does not lapse; the upshot is just that his contingent beneficiaries (here, his children) receive the money. See supra, at 5. That redirection of proceeds is not nothing; but under our precedents, it gives the policyholder—who, again, could have “easily” and entirely escaped the law’s effect—no right to complain of a Contracts Clause violation. Conley, 260 U.S., at 681. In addressing those precedents, Melin mainly urges us to distinguish between two ways a law can affect a con- tract. The Minnesota law, Melin claims, “operate[s] on the contract itself ” by “directly chang[ing] an express term” (the insured’s beneficiary designation). Brief for Respond- ent 51; Tr. of Oral Arg. 57. In contrast, Melin continues, the recording statutes “impose[ ] a consequence” for failing to abide by a “procedural” obligation extraneous to the agreement (the State’s recording or notification rule). Brief for Respondent 51; Tr. of Oral Arg. 58. The differ- ence, in her view, parallels the line between rights and remedies: The Minnesota law explicitly alters a person’s entitlement under the contract, while the recording laws interfere with his ability to enforce that entitlement against others. See Tr. of Oral Arg. 57–59; see also post, at 9–10 (GORSUCH, J., dissenting). But we see no meaningful distinction among all these laws. The old statutes also “act[ed] on the contract” in a significant way. Tr. of Oral Arg. 59. They added a paper- work obligation nowhere found in the original agree- ment—“record the deed,” say, or “notify the landowner.” And they informed a contracting party that unless he complied, he could not gain the benefits of his bargain. Or viewed conversely, the Minnesota statute also “impose[s] a consequence” for not satisfying a burden outside the con- tract. Brief for Respondent 51. For as we have shown, that law overrides a beneficiary designation only when the 14 SVEEN v. MELIN Opinion of the Court insured fails to send in a form to his insurer. See supra, at 10. Of course, the statutes (both old and new) vary in their specific mechanisms. But they all make contract benefits contingent on some simple filing—or more posi- tively spun, enable a party to safeguard those benefits by taking an action. And that feature is what the Court, again and again, has found dispositive. Nor does Melin’s attempt to distinguish the cases gain force when framed in terms of rights and remedies. First, not all the old statutes, as a formal matter, confined the consequence of noncompliance to the remedial sphere. In Gilfillan, for example, the result of failing to give written consent to a settlement was to diminish the interest rate a bondholder got, not to prevent him from enforcing a claim against others. And second, even when the consequence formally related to enforcement—for example, precluding an earlier purchaser from contesting a later one’s title— the laws in fact wiped out substantive rights. Failure to record or notify, as noted earlier, would mean that the contracting party lost what (according to his agreement) was his land or mortgage or mineral interest. See supra, at 12–13. In Texaco, we replied to an argument like Melin’s by saying that when the results of “eliminating a remedy” and “extinguishing a right” are “identical,” the Contracts Clause “analysis is the same.” 454 U.S., at 528; see El Paso, 379 U.S., at 506–507. That statement rebuts Melin’s claim too. Once again: Just like Minnesota’s statute, the laws discussed above hinged core contractual benefits on compliance with noncontractual paperwork burdens. When all is said and done, that likeness controls. For those reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 584 U. S. ____ (2018) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 16–1432 _________________ ASHLEY SVEEN, ET AL., PETITIONERS v.

A Minnesota law provides that “the dissolution or an- nulment of a marriage revokes any revocable[] beneficiary designation[ ] made by an individual to the individual’s former spouse.” –804, subd. 1 (2016). That statute establishes a default rule for use when Min- nesotans divorce. If one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation—on the theory that the policyholder would want that result. But if he does not, the policyholder may rename the ex-spouse as beneficiary. We consider here whether applying Minnesota’s automatic- revocation rule to a beneficiary designation made before the statute’s enactment violates the Contracts Clause of the Constitution. We hold it does not. I All good trust-and-estate lawyers know that “[d]eath is not the end; there remains the litigation over the estate.” 8 The Collected Works of Ambrose Bierce 365 (1911). That epigram, beyond presaging this case, helps explain the statute at its center. 2 SVEEN v. MELIN Opinion of the Court The legal system has long used default rules to resolve estate litigation in a way that conforms to decedents’ presumed intent. At common law, for example, marriage automatically revoked a woman’s prior will, while mar- riage and the birth of a child revoked a man’s. See 4 J. Kent, Commentaries on American Law 507, 512 The testator could then revive the old will or execute a new one. But if he (or she) did neither, the laws of intes- tate succession (generally prioritizing children and current spouses) would control the estate’s distribution. See 95 C. J. S., Wills pp. 409–410 (2011); R. Sitkoff & J. Dukeminier, Wills, Trusts, and Estates 63 Courts reasoned that the average person would prefer that allocation to the one in the old will, given the intervening life events. See T. Atkinson, Handbook of the Law of Wills 423 (2d ed. 1953). If he’d only had the time, the thought went, he would have replaced that will himself. Changes in society brought about changes in the laws governing revocation of wills. In addition to removing gender distinctions, most States abandoned the common- law rule canceling whole wills executed before a marriage or birth. In its place, they enacted statutes giving a new spouse or child a specified share of the decedent’s estate while leaving the rest of his will intact. See Sitkoff & Dukeminier, Wills, Trusts, and Estates, 40. But more important for our purposes, climbing divorce rates led almost all States by the 1980s to adopt another kind of automatic-revocation law. So-called revocation-on- divorce statutes treat an individual’s divorce as voiding a testamentary bequest to a former spouse. Like the old common-law rule, those laws rest on a “judgment about the typical testator’s probable intent.” They presume, in other words, that the average Joe does not want his ex inheriting what he leaves behind. Over time, many States extended their revocation-on- divorce statutes from wills to “will substitutes,” such as Cite as: 584 U. S. (2018) 3 Opinion of the Court revocable trusts, pension accounts, and life insurance policies. See Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 Harv. L. Rev. 1108, 1109 (1984) (describing nonprobate assets). In doing so, States followed the lead of the Uniform Probate Code, a model statute amended in 1990 to include a provision revoking on divorce not just testamentary bequests but also beneficiary designations to a former spouse. See 804(a)(1), (b)(1), 8 U. L. A. –331 (2013). The new section, the drafters wrote, aimed to “unify the law of probate and nonprobate transfers.” Comment, at 333. The underlying idea was that the typical decedent would no more want his former spouse to benefit from his pension plan or life insurance than to inherit under his will. A wealth transfer was a wealth transfer—and a former spouse (as compared with, say, a current spouse or child) was not likely to be its desired recipient. So a dece- dent’s failure to change his beneficiary probably resulted from “inattention,” not “intention.” Statement of the Joint Editorial Bd. for Uniform Probate Code, 17 Am. College Trust & Est. Counsel 184 (1991). Agreeing with that assumption, 26 States have by now adopted revocation-on- divorce laws substantially similar to the Code’s.1 Minne- —————— 1 See –4–17 (2016); (2016); Ariz. Rev. Stat. Ann. (2012); –11–804 ; ; –804 (2006); Idaho Code Ann. ( Cum. Supp.);20A ; Mass. Gen. Laws, ch. 190B, (2016); Mich. Comp. Laws Ann. (West 2018 Cum. Supp.); –804 subd. 1 (2016); –2–814 ; (2015); N. J. Stat. Ann. (West 2007); N. M. Stat. Ann. 804 (2014); N. Y. Est., Powers & Trusts Law Ann. (West 2018 Cum. Supp.); N. D. Cent. Code Ann. (2010); Ohio Rev. Code Ann. ; 20 Pa. Stat. and Cons. Stat. Ann. (2010); S. C. Code Ann. ( Cum. Supp.); S. D. Codified Laws (2004); (West 2006); Utah Code ; –111.1 4 SVEEN v. MELIN Opinion of the Court sota is one. Under prior Minnesota law, a divorce alone did not affect a beneficiary designation—but a particular divorce decree could do so. Take first the simple case: Joe names his wife Ann as beneficiary of his insurance policy, later gets divorced, but never changes the designation. Upon his death, Ann would receive the insurance proceeds— even if Joe had just forgotten to redirect the money. In other words, the insurance contract’s beneficiary provision would govern after the divorce, exactly as it would have before. See Larsen v. Northwestern Nat. Life Ins. Co., 463 N.W.2d 777, 779 (Minn. App. 1990). But now introduce a complication, in the form of a court addressing a spousal designation in a divorce decree. In Minnesota, as across the nation, divorce courts have always had “broad discre- tion in dividing property upon dissolution of a marriage.” ; see 24 Am. Jur. 2d, Divorce and Separation (2008). In exercising that power, a court could revoke a beneficiary designation to a soon-to-be ex-spouse; or conversely, a court could mandate that the old designation remain. See, e.g., (Minn. App. 1987); (Minn. 1984). Either way, the court, rather than the insured, would decide whether the ex-spouse would stay the beneficiary. In contrast to the old law, Minnesota’s new revocation- on-divorce statute starts from another baseline: the can- cellation, rather than continuation, of a beneficiary desig- nation. Enacted in 2002 to track the Code, the law provides that “the dissolution or annulment of a marriage revokes any revocable[ ] disposition, beneficiary designa- tion, or appointment of property made by an individual to the individual’s former spouse in a governing instrument.” —————— (2016); (2016); (2011). Cite as: 584 U. S. (2018) 5 Opinion of the Court –804, subd. 1. The term “governing instrument” is defined to include an “insurance or annuity policy,” along with a will and other will substitutes. So now when Joe and Ann divorce, the clause naming Ann as Joe’s insurance beneficiary is automatically revoked. If nothing else occurs before Joe’s death, his insurance proceeds go to any contingent beneficiary named in the policy (perhaps his daughter Emma) or, failing that, to his estate. See subd. 2. Something else, however, may well happen. As under Minnesota’s former law, a divorce decree may alter the natural state of things. So in our example, the court could direct that Ann remain as Joe’s insurance beneficiary, despite the normal revocation rule. See subd. 1 (providing that a “court order” trumps the rule). And just as important, the policyholder himself may step in to override the revocation. Joe, for example, could agree to a marital settlement ensuring Ann’s continued status as his beneficiary. See (providing that such an agreement controls). Or else, and more simply, he could notify his insurance company at any time that he wishes to restore Ann to that position. But enough of our hypothetical divorcees: It is time they give way to Mark Sveen and Kaye Melin, whose marriage and divorce led to this case. In 1997, Sveen and Melin wed. The next year, Sveen purchased a life insurance policy. He named Melin as the primary beneficiary, while designating his two children from a prior marriage, Ashley and Antone Sveen, as the contingent beneficiaries. The Sveen-Melin marriage ended in 2007. The divorce decree made no mention of the insurance policy. And Sveen took no action, then or later, to revise his beneficiary designa- tions. In 2011, he passed away. In this action, petitioners the Sveen children and re- spondent Melin make competing claims to the insurance proceeds. The Sveens contend that under Minnesota’s 6 SVEEN v. MELIN Opinion of the Court revocation-on-divorce law, their father’s divorce canceled Melin’s beneficiary designation and left the two of them as the rightful recipients. Melin notes in reply that the Minnesota law did not yet exist when her former husband bought his insurance policy and named her as the primary beneficiary. And she argues that applying the later- enacted law to the policy would violate the Constitution’s Contracts Clause, which prohibits any state “Law impair- ing the Obligation of Contracts.” Art. I, cl. 1. The District Court rejected Melin’s argument and awarded the insurance money to the Sveens. See Civ. No. 14–5015 (D Minn., Jan. 7, 2016), App. to Pet. for Cert. 9a– 16a. But the Court of Appeals for the Eighth Circuit reversed. It held that a “revocation-upon-divorce statute like [Minnesota’s] violates the Contract Clause when applied retroactively.” F.3d 410, We granted certiorari, 583 U. S. to resolve a split of authority over whether the Contracts Clause pre- vents a revocation-on-divorce law from applying to a pre- existing agreement’s beneficiary designation.2 We now reverse the decision below. II The Contracts Clause restricts the power of States to disrupt contractual arrangements. It provides that “[n]o state shall pass any Law impairing the Obligation of Contracts.” U. S. Const., Art. I, cl. 1. The origins of the Clause lie in legislation enacted after the Revolution- ary War to relieve debtors of their obligations to creditors. —————— 2 Compare F.3d 410, (yes, it does); 819 (1998) (same), with 1199–1200 (no, it does not); (same); In re Estate of DeWitt, (same). Cite as: 584 U. S. (2018) 7 Opinion of the Court See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 4, 502–503 (1987). But the Clause applies to any kind of contract. See Allied Structural Steel Co. v. Spannaus, That includes, as here, an insurance policy. At the same time, not all laws affecting pre-existing contracts violate the Clause. See El v. Simmons, 379 U.S. 497, 506–507 (1965). To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has “operated as a substantial impairment of a con- tractual relationship.” Allied Structural Steel Co., 438 U.S., 44. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. See ; El 379 U.S., 14–515; If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation. In particular, the Court has asked whether the state law is drawn in an “appropriate” and “reasonable” way to ad- vance “a significant and legitimate public purpose.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411– (1983). Here, we may stop after step one because Minnesota’s revocation-on-divorce statute does not substantially im- pair pre-existing contractual arrangements. True enough that in revoking a beneficiary designation, the law makes a significant change. As Melin says, the “whole point” of buying life insurance is to provide the proceeds to the named beneficiary. Brief for Respondent 16. But three aspects of Minnesota’s law, taken together, defeat Melin’s argument that the change it effected “severely impaired” her ex-husband’s contract. First, the statute is designed to reflect a policyholder’s intent—and so to sup- 8 SVEEN v. MELIN Opinion of the Court port, rather than impair, the contractual scheme. Second, the law is unlikely to disturb any policyholder’s expecta- tions because it does no more than a divorce court could always have done. And third, the statute supplies a mere default rule, which the policyholder can undo in a mo- ment. Indeed, Minnesota’s revocation statute stacks up well against laws that this Court upheld against Contracts Clause challenges as far back as the early 1800s.3 We now consider in detail each of the features that make this so. To begin, the Minnesota statute furthers the policyhold- er’s intent in many cases—indeed, the drafters reasonably thought in the typical one. As earlier described, legisla- tures have long made judgments about a decedent’s likely testamentary intent after large life changes—a marriage, a birth, or a divorce. See And on that basis, they have long enacted statutes revoking earlier-made wills by operation of law. Legislative presumptions about divorce are now especially prevalent—probably because they accurately reflect the intent of most divorcing parties. Although there are exceptions, most divorcees do not aspire to enrich their former partners. (“No[t] every statute which affects the value of a contract impair[s] its obligation”). And in particular, the Court has always approved statutes like this one, which enable a party with only minimal effort to protect his original contract rights against the law’s operation. See, e.g., 3 Pet. 280, 290 So this case presents no clash, of the kind Melin says we should resolve, between the Court’s two-step test and any older approach to applying the Contracts Clause. Cite as: 584 U. S. (2018) 9 Opinion of the Court even when an ex-spouse has custody of shared children, given the many ways to provide them with independent support.) The Minnesota statute (like the model code it tracked) applies that understanding to beneficiary desig- nations in life insurance policies and other will substi- tutes. See at 3–5. Melin rightly notes that this extension raises a brand-new constitutional question because “an insurance policy is a contract under the Con- tracts Clause, and a will is not.” Brief for Respondent 44 (internal quotation marks omitted). But in answering that question, it matters that the old legislative presump- tion equally fits the new context: A person would as little want his ex-spouse to benefit from his insurance as to collect under his will. Or said otherwise, the insured’s failure to change the beneficiary after a divorce is more likely the result of neglect than choice. And that means the Minnesota statute often honors, not undermines, the intent of the only contracting party to care about the beneficiary term. The law no doubt changes how the insurance contract operates. But does it impair the con- tract? Quite the opposite for lots of policyholders. And even when presumed and actual intent diverge, the Minnesota law is unlikely to upset a policyholder’s expec- tations at the time of contracting. That is because an insured cannot reasonably rely on a beneficiary designa- tion remaining in place after a divorce. As noted above, divorce courts have wide discretion to divide property between spouses when a marriage ends. See The house, the cars, the sporting equipment are all up for grabs. See Judgment and Decree in 14–cv–5015 (D Minn.), p. 51 (awarding Melin, among other things, a snowmobile and all-terrain vehicle). And (what matters here) so too are the spouses’ life insurance policies, with their beneficiary provisions. Although not part of the Sveen-Melin divorce decree, they could have been; as Melin acknowledges, they sometimes are. See ; 10 SVEEN v. MELIN Opinion of the Court Brief for Respondent 38. Melin counters that the Con- tracts Clause applies only to legislation, not to judicial decisions. See at 38–39; see also post, at 9 (GORSUCH, J., dissenting). That is true, but of no moment. The power of divorce courts over insurance policies is relevant here because it affects whether a party can reasonably expect a beneficiary designation to survive a marital breakdown. We venture to guess that few people, when purchasing life insurance, give a thought to what will happen in the event of divorce. But even if someone out there does, he can conclude only that he cannot possibly know. So his reliance interests are next to nil. And as this Court has held before, that fact cuts against providing protection under the Contracts Clause. See, e.g., El 379 U.S., 14–515. Finally, a policyholder can reverse the effect of the Minnesota statute with the stroke of a pen. The law puts in place a presumption about what an insured wants after divorcing. But if the presumption is wrong, the insured may overthrow it. And he may do so by the simple act of sending a change-of-beneficiary form to his insurer. (Or if he wants to commit himself forever, like Ulysses binding himself to the mast, he may agree to a divorce settlement continuing his ex-spouse’s beneficiary status. See) That action restores his former spouse to the posi- tion she held before the divorce—and in so doing, cancels the state law’s operation. The statute thus reduces to a paperwork requirement (and a fairly painless one, at that): File a form and the statutory default rule gives way to the original beneficiary designation. In cases going back to the 1800s, this Court has held that laws imposing such minimal paperwork burdens do not violate the Contracts Clause. One set of decisions addresses so-called recording statutes, which extinguish contractual interests unless timely recorded at govern- ment offices. In Cite as: 584 U. S. (2018) 11 Opinion of the Court for example, the Court rejected a Contracts Clause chal- lenge to a New York law granting title in property to a later rather than earlier purchaser whenever the earlier had failed to record his deed. It made no difference, the Court held, whether the unrecorded deed was “dated before or after the passage” of the statute; in neither event did the law’s modest recording condition “impair[ ] the obligation of contracts.” 90. Likewise, in Vance v. Vance, the Court upheld a statute rendering unrecorded mortgages unenforceable against third parties—even when the mortgages predated the law. We reasoned that the law gave “due regard to existing contracts” because it demanded only that the mortgagee make a “public registration,” and gave him several months to do so. And more recently, in the Court held that a statute terminating pre-existing mineral interests unless the owner filed a “statement of claim” in a county office did not “unconstitutionally impair” a contract. at The filing requirement was “minimal,” we explained, and compliance with it would effectively “safeguard any con- tractual obligations or rights.” So too, the Court has long upheld against Contracts Clause attack laws mandating other kinds of notifications or filings. In for example, the Court approved a statute retroactively affect- ing buyers of “certificates” for land offered at tax sales. The law required the buyer to notify the tax-delinquent property owner, who could then put up the funds neces- sary to prevent the land’s final sale. If the buyer failed to give the notice, he could not take the land—and if he provided the notice, his chance of gaining the land de- clined. Still, the Court made short work of the Contracts Clause claim. Not “every statute which affects the value of a contract,” the Court stated, “impair[s] its obligation.” at Because the law’s notice rule was “easy [to] 12 SVEEN v. MELIN Opinion of the Court compl[y] with,” it did not raise a constitutional problem. Similarly, in the Court sustained a state law providing that an existing bondholder’s failure to reject a settlement proposal in writing would count as consent to the deal. The law operated to reduce the interest received by an investor who did not respond. Yet the Court re- buffed the ensuing Contracts Clause suit. “If [the bond- holder did] not wish to abandon his old rights and accept the new,” the Court explained, “all he ha[d] to do [was] to say so in writing.” 06. And one last: In v. Barton, the Court held that the Contracts Clause did not bar a State from compelling existing mortgagees to complete affidavits before finally foreclosing on properties. The law effectively added a paperwork requirement to the mortgage contracts’ foreclo- sure terms. But the Court said it was “only [a] condition, easily complied with, which the law, for its purposes, requires.” The Minnesota statute places no greater obligation on a contracting party—while imposing a lesser penalty for noncompliance. Even supposing an insured wants his life insurance to benefit his ex-spouse, filing a change-of- beneficiary form with an insurance company is as “easy” as, say, providing a landowner with notice or recording a deed. 13 Wall., Here too, with only “mini- mal” effort, a person can “safeguard” his contractual pref- erences. 454 U.S., at And here too, if he does not “wish to abandon his old rights and accept the new,” he need only “say so in writing.” Gilfillan, 109 U.S., 06. What’s more, if the worst happens—if he wants his ex-spouse to stay as beneficiary but does not send in his form—the consequence pales in comparison with the losses incurred in our earlier cases. When a person ig- nored a recording obligation, for example, he could forfeit the sum total of his contractual rights—just ask the plain- Cite as: 584 U. S. (2018) 13 Opinion of the Court tiffs in Jackson and Vance. But when a policyholder in Minnesota does not redesignate his ex-spouse as benefi- ciary, his right to insurance does not lapse; the upshot is just that his contingent beneficiaries (here, his children) receive the money. See That redirection of proceeds is not nothing; but under our precedents, it gives the policyholder—who, again, could have “easily” and entirely escaped the law’s effect—no right to complain of a Contracts Clause violation. 260 U.S., In addressing those precedents, Melin mainly urges us to distinguish between two ways a law can affect a con- tract. The Minnesota law, Melin claims, “operate[s] on the contract itself ” by “directly chang[ing] an express term” (the insured’s beneficiary designation). Brief for Respond- ent 51; Tr. of Oral Arg. 57. In contrast, Melin continues, the recording statutes “impose[ ] a consequence” for failing to abide by a “procedural” obligation extraneous to the agreement (the State’s recording or notification rule). Brief for Respondent 51; Tr. of Oral Arg. 58. The differ- ence, in her view, parallels the line between rights and remedies: The Minnesota law explicitly alters a person’s entitlement under the contract, while the recording laws interfere with his ability to enforce that entitlement against others. See Tr. of Oral Arg. 57–59; see also post, at 9–10 (GORSUCH, J., dissenting). But we see no meaningful distinction among all these laws. The old statutes also “act[ed] on the contract” in a significant way. Tr. of Oral Arg. 59. They added a paper- work obligation nowhere found in the original agree- ment—“record the deed,” say, or “notify the landowner.” And they informed a contracting party that unless he complied, he could not gain the benefits of his bargain. Or viewed conversely, the Minnesota statute also “impose[s] a consequence” for not satisfying a burden outside the con- tract. Brief for Respondent 51. For as we have shown, that law overrides a beneficiary designation only when the 14 SVEEN v. MELIN Opinion of the Court insured fails to send in a form to his insurer. See at 10. Of course, the statutes (both old and new) vary in their specific mechanisms. But they all make contract benefits contingent on some simple filing—or more posi- tively spun, enable a party to safeguard those benefits by taking an action. And that feature is what the Court, again and again, has found dispositive. Nor does Melin’s attempt to distinguish the cases gain force when framed in terms of rights and remedies. First, not all the old statutes, as a formal matter, confined the consequence of noncompliance to the remedial sphere. In Gilfillan, for example, the result of failing to give written consent to a settlement was to diminish the interest rate a bondholder got, not to prevent him from enforcing a claim against others. And second, even when the consequence formally related to enforcement—for example, precluding an earlier purchaser from contesting a later one’s title— the laws in fact wiped out substantive rights. Failure to record or notify, as noted earlier, would mean that the contracting party lost what (according to his agreement) was his land or mortgage or mineral interest. See at 12–13. In we replied to an argument like Melin’s by saying that when the results of “eliminating a remedy” and “extinguishing a right” are “identical,” the Contracts Clause “analysis is the same.” 454 U.S., 28; see El 379 U.S., 06–507. That statement rebuts Melin’s claim too. Once again: Just like Minnesota’s statute, the laws discussed above hinged core contractual benefits on compliance with noncontractual paperwork burdens. When all is said and done, that likeness controls. For those reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 584 U. S. (2018) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–1432 ASHLEY SVEEN, ET AL., PETITIONERS v.

Justice Powell

concurring

United States v. Clark

https://www.courtlistener.com/opinion/110210/united-states-v-clark/

https://www.courtlistener.com/api/rest/v3/clusters/110210/

1979-042

The question in this case is whether the illegitimate children of a federal employee, who lived with his children after their birth and had a legal obligation to contribute to their support until his death, are eligible to receive survivors' benefits under the Civil Service Retirement Act, 5 U.S. C. § 8331 et seq. The statutory definition of "child" under that Act includes a "recognized natural child who lived with the employee . . . in a regular parent-child relationship." 5 U.S. C. § 8341 (a) (3) *35 (A) (ii). Because I agree that these children satisfy the statutory definition, I concur in the judgment of the Court. I write separately because I do not believe that the Court's broad construction of the "lived with" requirement is compatible with congressional intent or necessary to avoid constitutional difficulties. The Court recognizes that the "lived with" requirement could serve governmental purposes by providing proof of either paternity or dependence. The Court concludes that the "lived with" requirement is not designed to prove paternity because the statute separately requires that an eligible illegitimate be a "recognized natural child." Ante, at 30. I agree. I cannot accept so easily the Court's further conclusion that the "lived with" requirement was not designed to prove dependency. Although the 1966 amendment demonstrates that the "lived with" requirement cannot be interpreted to demand that more than one-half of a child's support come from the deceased parent, it does not demonstrate that Congress intended to eliminate entirely the dependency requirement. As a matter of statutory construction and common sense, the statement that an illegitimate who fulfills the "lived with" requirement need not meet an additional dependency requirement, ante, at 32, quoting H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966), indicates that Congress intended the "lived with" test to serve as the functional equivalent of a dependency requirement. The Court's assumption to the contrary deprives the "lived with" requirement of any legislative purpose. Rather than construe a statutory provision to serve no identifiable congressional goal, I would conclude that Congress intended the "lived with" requirement to serve as a means through which illegitimate children may prove actual dependency on the deceased parent. Congress may require illegitimate children to demonstrate actual dependency even though legitimate children are presumed to be dependent, Mathews v. Lucas, 427 U.S. 495, 507-509 (1976), so long as the means by which illegitimates *36 must demonstrate such dependency are substantially related to achievement of the statutory goal. Lalli v. Lalli, 439 U.S. 259, 275-276 (1978) (opinion of POWELL, J.); see Trimble v. Gordon, 430 U.S. 762, 770-773 (1977). The possible constitutional infirmity in the Government's construction of the statute is its assumption that only illegitimates who "lived with" a parent at the time of his death were actually dependent. Such a requirement may be unconstitutionally restrictive because, as in this case, it would bar the claims of children who lived with their father for some part of their lives, and who received support from their father until his death.[*] The recognition of the children's claim in this case clearly does not frustrate the congressional intent that only dependent illegitimate children receive survivors' annuities. I therefore would hold that children who show a continuing relationship of dependency with their father, which includes living with him in the past and receiving support from him when they lived apart, satisfy the requirement of 5 U.S. C. § 8341 (a) (3) (A) (ii). I do not believe, however, that the Court needs to find the requirement satisfied no matter when the child lived with the deceased parent. In some circumstances proof of a domestic living situation at some far distant period in the child's life may not demonstrate actual dependency. Accordingly, I would go no further than concluding that these children have satisfied the "lived with" requirement. MR. JUSTICE REHNQUIST, with whom MR.

The question in this case is whether the illegitimate children of a federal employee, who lived with his children after their birth and had a legal obligation to contribute to their support until his death, are eligible to receive survivors' benefits under the Civil Service Retirement Act, 5 U.S. C. 8331 et seq. The statutory definition of "child" under that Act includes a "recognized natural child who lived with the employee in a regular parent-child relationship." 5 U.S. C. 8341 (a) (3) *35 (A) (ii). Because I agree that these children satisfy the statutory definition, I concur in the judgment of the Court. I write separately because I do not believe that the Court's broad construction of the "lived with" requirement is compatible with congressional intent or necessary to avoid constitutional difficulties. The Court recognizes that the "lived with" requirement could serve governmental purposes by providing proof of either paternity or dependence. The Court concludes that the "lived with" requirement is not designed to prove paternity because the statute separately requires that an eligible illegitimate be a "recognized natural child." Ante, at 30. I agree. I cannot accept so easily the Court's further conclusion that the "lived with" requirement was not designed to prove dependency. Although the 1966 amendment demonstrates that the "lived with" requirement cannot be interpreted to demand that more than one-half of a child's support come from the deceased parent, it does not demonstrate that Congress intended to eliminate entirely the dependency requirement. As a matter of statutory construction and common sense, the statement that an illegitimate who fulfills the "lived with" requirement need not meet an additional dependency requirement, ante, at 32, quoting H. R. Doc. No. 402, 89th Cong., 2d Sess., 41 (1966), indicates that Congress intended the "lived with" test to serve as the functional equivalent of a dependency requirement. The Court's assumption to the contrary deprives the "lived with" requirement of any legislative purpose. Rather than construe a statutory provision to serve no identifiable congressional goal, I would conclude that Congress intended the "lived with" requirement to serve as a means through which illegitimate children may prove actual dependency on the deceased parent. Congress may require illegitimate children to demonstrate actual dependency even though legitimate children are presumed to be dependent, so long as the means by which illegitimates *36 must demonstrate such dependency are substantially related to achievement of the statutory goal. ; see The possible constitutional infirmity in the Government's construction of the statute is its assumption that only illegitimates who "lived with" a parent at the time of his death were actually dependent. Such a requirement may be unconstitutionally restrictive because, as in this case, it would bar the claims of children who lived with their father for some part of their lives, and who received support from their father until his death.[*] The recognition of the children's claim in this case clearly does not frustrate the congressional intent that only dependent illegitimate children receive survivors' annuities. I therefore would hold that children who show a continuing relationship of dependency with their father, which includes living with him in the past and receiving support from him when they lived apart, satisfy the requirement of 5 U.S. C. 8341 (a) (3) (A) (ii). I do not believe, however, that the Court needs to find the requirement satisfied no matter when the child lived with the deceased parent. In some circumstances proof of a domestic living situation at some far distant period in the child's life may not demonstrate actual dependency. Accordingly, I would go no further than concluding that these children have satisfied the "lived with" requirement. MR. JUSTICE REHNQUIST, with whom MR.

Justice Ginsburg

majority

Patent and Trademark Office v. Booking.com B. V.

https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/

https://www.courtlistener.com/api/rest/v3/clusters/4764769/

This case concerns eligibility for federal trademark regis- tration. Respondent Booking.com, an enterprise that main- tains a travel-reservation website by the same name, sought to register the mark “Booking.com.” Concluding that “Booking.com” is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) re- fused registration. A generic name—the name of a class of products or ser- vices—is ineligible for federal trademark registration. The word “booking,” the parties do not dispute, is generic for hotel-reservation services. “Booking.com” must also be ge- neric, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a ge- neric word and “.com” is generic. In accord with the first- and second-instance judgments in this case, we reject the PTO’s sweeping rule. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations un- contested here by the PTO, do not perceive the term 2 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court “Booking.com” to signify online hotel-reservation services as a class. In circumstances like those this case presents, a “generic.com” term is not generic and can be eligible for fed- eral trademark registration. I A A trademark distinguishes one producer’s goods or ser- vices from another’s. Guarding a trademark against use by others, this Court has explained, “secure[s] to the owner of the mark the goodwill” of her business and “protect[s] the ability of consumers to distinguish among competing pro- ducers.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198 (1985); see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) (trademark statutes aim to “protect the pub- lic so it may be confident that, in purchasing a product bear- ing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get”). Trademark protection has roots in common law and equity. Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 2). To- day, the Lanham Act, enacted in 1946, provides federal statutory protection for trademarks. 60 Stat. 427, as amended, 15 U.S. C. §1051 et seq. We have recognized that federal trademark protection, supplementing state law, “supports the free flow of commerce” and “foster[s] compe- tition.” Matal, 582 U. S., at ___, ___–___ (slip op., at 3, 4–5) (internal quotation marks omitted). The Lanham Act not only arms trademark owners with federal claims for relief; importantly, it establishes a sys- tem of federal trademark registration. The owner of a mark on the principal register enjoys “valuable benefits,” includ- ing a presumption that the mark is valid. Iancu v. Brunetti, 588 U. S. ___, ___ (2019) (slip op., at 2); see §§1051, 1052. The supplemental register contains other product and ser- vice designations, some of which could one day gain eligibil- ity for the principal register. See §1091. The supplemental Cite as: 591 U. S. ____ (2020) 3 Opinion of the Court register accords more modest benefits; notably, a listing on that register announces one’s use of the designation to oth- ers considering a similar mark. See 3 J. McCarthy, Trade- marks and Unfair Competition §19:37 (5th ed. 2019) (here- inafter McCarthy). Even without federal registration, a mark may be eligible for protection against infringement under both the Lanham Act and other sources of law. See Matal, 582 U. S., at ___–___ (slip op., at 4–5). Prime among the conditions for registration, the mark must be one “by which the goods of the applicant may be distinguished from the goods of others.” §1052; see §1091(a) (supplemental register contains “marks capable of distin- guishing . . . goods or services”). Distinctiveness is often ex- pressed on an increasing scale: Word marks “may be (1) ge- neric; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). The more distinctive the mark, the more readily it quali- fies for the principal register. The most distinctive marks— those that are “ ‘arbitrary’ (‘Camel’ cigarettes), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)”— may be placed on the principal register because they are “inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 210–211 (2000). “Descriptive” terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. E.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 718 F.2d 327, 331 (CA9 1983) (“Park ’N Fly” airport parking is descriptive), rev’d on other grounds, 469 U.S. 189 (1985). The Lanham Act, “lib- eraliz[ing] the common law,” “extended protection to de- scriptive marks.” Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 171 (1995). But to be placed on the principal register, descriptive terms must achieve significance “in the minds of the public” as identifying the applicant’s goods or services—a quality called “acquired distinctiveness” or “sec- ondary meaning.” Wal-Mart Stores, 529 U.S., at 211 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court (internal quotation marks omitted); see §1052(e), (f ). Without secondary meaning, descriptive terms may be eligible only for the supplemental register. §1091(a). At the lowest end of the distinctiveness scale is “the generic name for the goods or services.” §§1127, 1064(3), 1065(4). The name of the good itself (e.g., “wine”) is incapable of “distinguish[ing] [one producer’s goods] from the goods of others” and is therefore ineligible for registra- tion. §1052; see §1091(a). Indeed, generic terms are ordi- narily ineligible for protection as trademarks at all. See Restatement (Third) of Unfair Competition §15, p. 142 (1993); Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (CA2 1999) (“[E]veryone may use [generic terms] to refer to the goods they designate.”). B Booking.com is a digital travel company that provides hotel reservations and other services under the brand “Booking.com,” which is also the domain name of its web- site.1 Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term “Booking.com.”2 Both a PTO examining attorney and the PTO’s Trade- mark Trial and Appeal Board concluded that the term “Booking.com” is generic for the services at issue and is therefore unregistrable. “Booking,” the Board observed, means making travel reservations, and “.com” signifies a —————— 1 A domain name identifies an address on the Internet. The rightmost component of a domain name—“.com” in “Booking.com”—is known as the top-level domain. Domain names are unique; that is, a given domain name is assigned to only one entity at a time. 2 For simplicity, this opinion uses the term “trademark” to encompass the marks whose registration Booking.com seeks. Although Book- ing.com uses the marks in connection with services, not goods, rendering the marks “service marks” rather than “trademarks” under 15 U.S. C. §1127, that distinction is immaterial to the issue before us. Cite as: 591 U. S. ____ (2020) 5 Opinion of the Court commercial website. The Board then ruled that “customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings.” App. to Pet. for Cert. 164a, 176a. Alternatively, the Board held that even if “Booking.com” is descriptive, not generic, it is unregistrable because it lacks secondary meaning. Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not pre- sented to the agency. See §1071(b). Relying in significant part on Booking.com’s new evidence of consumer percep- tion, the District Court concluded that “Booking.com”—un- like “booking”—is not generic. The “consuming public,” the court found, “primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.” Book- ing.com B.V. v. Matal, 278 F. Supp. 3d 891, 918 (2017). Having determined that “Booking.com” is descriptive, the District Court additionally found that the term has ac- quired secondary meaning as to hotel-reservation services. For those services, the District Court therefore concluded, Booking.com’s marks meet the distinctiveness requirement for registration. The PTO appealed only the District Court’s determina- tion that “Booking.com” is not generic. Finding no error in the District Court’s assessment of how consumers perceive the term “Booking.com,” the Court of Appeals for the Fourth Circuit affirmed the court of first instance’s judg- ment. In so ruling, the appeals court rejected the PTO’s contention that the combination of “.com” with a generic term like “booking” “is necessarily generic.” 915 F.3d 171, 184 (2019). Dissenting in relevant part, Judge Wynn con- cluded that the District Court mistakenly presumed that “generic.com” terms are usually descriptive, not generic. 6 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court We granted certiorari, 589 U. S. ___ (2019), and now af- firm the Fourth Circuit’s decision. II Although the parties here disagree about the circum- stances in which terms like “Booking.com” rank as generic, several guiding principles are common ground. First, a “ge- neric” term names a “class” of goods or services, rather than any particular feature or exemplification of the class. Brief for Petitioners 4; Brief for Respondent 6; see §§1127, 1064(3), 1065(4) (referring to “the generic name for the goods or services”); Park ’N Fly, 469 U.S., at 194 (“A generic term is one that refers to the genus of which the particular product is a species.”). Second, for a compound term, the distinctiveness inquiry trains on the term’s meaning as a whole, not its parts in isolation. Reply Brief 9; Brief for Respondent 2; see Estate of P. D. Beckwith, Inc. v. Commissioner of Patents, 252 U.S. 538, 545–546 (1920). Third, the relevant meaning of a term is its meaning to consumers. Brief for Petitioners 43–44; Brief for Respondent 2; see Bayer Co. v. United Drug Co., 272 F. 505, 509 (SDNY 1921) (Hand, J.) (“What do the buyers understand by the word for whose use the parties are contending?”). Eligibility for registration, all agree, turns on the mark’s capacity to “distinguis[h]” goods “in commerce.” §1052. Evidencing the Lanham Act’s focus on consumer perception, the section governing cancellation of registration provides that “[t]he primary significance of the registered mark to the relevant public . . . shall be the test for determining whether the registered mark has become the generic name of goods or services.” §1064(3).3 —————— 3 The U. S. Patent and Trademark Office (PTO) suggests that the primary-significance test might not govern outside the context of §1064(3), which subjects to cancellation marks previously registered that have “become” generic. See Reply Brief 11; Tr. of Oral Arg. 19. To Cite as: 591 U. S. ____ (2020) 7 Opinion of the Court Under these principles, whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if “Booking.com” were generic, we might expect consumers to understand Travelocity—another such service—to be a “Booking.com.” We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite “Booking.com” provider. Consumers do not in fact perceive the term “Booking.com” that way, the courts below determined. The PTO no longer disputes that determination. See Pet. for Cert. I; Brief for Petitioners 17–18 (contending only that a consumer-perception inquiry was unnecessary, not that the lower courts’ consumer-perception determination was wrong). That should resolve this case: Because “Booking.com” is not a generic name to consumers, it is not generic. III Opposing that conclusion, the PTO urges a nearly per se rule that would render “Booking.com” ineligible for regis- tration regardless of specific evidence of consumer percep- tion. In the PTO’s view, which the dissent embraces, when a generic term is combined with a generic top-level domain —————— so confine the primary-significance test, however, would upset the un- derstanding, shared by Courts of Appeals and the PTO’s own manual for trademark examiners, that the same test governs whether a mark is reg- istrable in the first place. See, e.g., In re Cordua Restaurants, Inc., 823 F.3d 594, 599 (CA Fed. 2016); Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 404 (CA6 2002); Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 144 (CA2 1997); Trademark Manual of Examining Procedure §1209.01(c)(i), p. 1200–267 (Oct. 2018), http://tmep.uspto.gov. We need not address today the scope of the primary-significance test’s application, for our analysis does not depend on whether one meaning among several is “primary.” Sufficient to resolve this case is the undis- puted principle that consumer perception demarcates a term’s meaning. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court like “.com,” the resulting combination is generic. In other words, every “generic.com” term is generic according to the PTO, absent exceptional circumstances.4 The PTO’s own past practice appears to reflect no such comprehensive rule. See, e.g., Trademark Registration No. 3,601,346 (“ART.COM” on principal register for, inter alia, “[o]nline retail store services” offering “art prints, original art, [and] art reproductions”); Trademark Registration No. 2,580,467 (“DATING.COM” on supplemental register for “dating services”). Existing registrations inconsistent with the rule the PTO now advances would be at risk of cancel- lation if the PTO’s current view were to prevail. See §1064(3). We decline to adopt a rule essentially excluding registration of “generic.com” marks. As explained below, we discern no support for the PTO’s current view in trade- mark law or policy. A The PTO urges that the exclusionary rule it advocates follows from a common-law principle, applied in Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598 (1888), that a generic corporate designation added to a generic term does not confer trademark eligibility. In Goodyear, a decision predating the Lanham Act, this Court held that “Goodyear Rubber Company” was not “capable of exclusive appropriation.” Id., at 602. Standing alone, the term “Goodyear Rubber” could not serve as a trademark because it referred, in those days, to “well-known classes of goods produced by the process known as Goodyear’s invention.” Ibid. “[A]ddition of the word ‘Company’ ” supplied no protectable meaning, the Court concluded, —————— 4 The PTO notes only one possible exception: Sometimes adding a ge- neric term to a generic top-level domain results in wordplay (for example, “tennis.net”). That special case, the PTO acknowledges, is not presented here and does not affect our analysis. See Brief for Petitioners 25, n. 6; Tr. of Oral Arg. 25–26. Cite as: 591 U. S. ____ (2020) 9 Opinion of the Court because adding “Company” “only indicates that parties have formed an association or partnership to deal in such goods.” Ibid. Permitting exclusive rights in “Goodyear Rubber Company” (or “Wine Company, Cotton Company, or Grain Company”), the Court explained, would tread on the right of all persons “to deal in such articles, and to publish the fact to the world.” Id., at 602–603. “Generic.com,” the PTO maintains, is like “Generic Com- pany” and is therefore ineligible for trademark protection, let alone federal registration. According to the PTO, adding “.com” to a generic term—like adding “Company”—“conveys no additional meaning that would distinguish [one pro- vider’s] services from those of other providers.” Brief for Petitioners 44. The dissent endorses that proposition: “Ge- neric.com” conveys that the generic good or service is of- fered online “and nothing more.” Post, at 1. That premise is faulty. A “generic.com” term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so “[a] con- sumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some spe- cific entity.” Brief for Petitioners 40. See also Tr. of Oral Arg. 5 (“Because domain names are one of a kind, a signifi- cant portion of the public will always understand a generic ‘.com’ term to refer to a specific business . . . .”); post, at 7 (the “exclusivity” of “generic.com” terms sets them apart from terms like “Wine, Inc.” and “The Wine Company”). Thus, consumers could understand a given “generic.com” term to describe the corresponding website or to identify the website’s proprietor. We therefore resist the PTO’s position that “generic.com” terms are capable of signifying only an entire class of online goods or services and, hence, 10 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court are categorically incapable of identifying a source.5 The PTO’s reliance on Goodyear is flawed in another re- spect. The PTO understands Goodyear to hold that “Ge- neric Company” terms “are ineligible for trademark protec- tion as a matter of law”—regardless of how “consumers would understand” the term. Brief for Petitioners 38. But, as noted, whether a term is generic depends on its meaning to consumers. Supra, at 6. That bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception. Instead, Goodyear reflects a more modest principle harmonious with Congress’ subsequent enactment: A compound of generic el- ements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services. The PTO also invokes the oft-repeated principle that “no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise —————— 5 In passing, the PTO urges us to disregard that a domain name is as- signed to only one entity at a time. That fact, the PTO suggests, stems from “a functional characteristic of the Internet and the domain-name system,” and functional features cannot receive trademark protection. Brief for Petitioners 32. “[A] product feature is functional, and cannot serve as a trademark,” we have held, “if it is essential to the use or pur- pose of the article or if it affects the cost or quality of the article.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 32 (2001) (internal quotation marks omitted); see §1052(e) (barring from the principal reg- istrar “any matter that, as a whole, is functional”). This case, however, does not concern trademark protection for a feature of the Internet or the domain-name system; Booking.com lays no claim to the use of unique domain names generally. Nor does the PTO contend that the particular domain name “Booking.com” is essential to the use or purpose of online hotel-reservation services, affects these services’ cost or quality, or is oth- erwise necessary for competitors to use. In any event, we have no occa- sion to decide the applicability of §1052(e)’s functionality bar, for the sole ground on which the PTO refused registration, and the sole claim before us, is that “Booking.com” is generic. Cite as: 591 U. S. ____ (2020) 11 Opinion of the Court . . . , it cannot deprive competing manufacturers of the prod- uct of the right to call an article by its name.” Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976). That principle presupposes that a generic term is at issue. But the PTO’s only legal basis for deeming “generic.com” terms generic is its mistaken reliance on Goodyear. While we reject the rule proffered by the PTO that “generic.com” terms are generic names, we do not embrace a rule automatically classifying such terms as nongeneric. Whether any given “generic.com” term is generic, we hold, depends on whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of dis- tinguishing among members of the class.6 B The PTO, echoed by the dissent, post, at 10–12, objects that protecting “generic.com” terms as trademarks would —————— 6 Evidence informing that inquiry can include not only consumer sur- veys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term’s meaning. Surveys can be helpful evidence of consumer perception but require care in their design and interpretation. See Brief for Trademark Scholars as Amici Curiae 18–20 (urging that survey respondents may conflate the fact that domain names are exclusive with a conclusion that a given “generic.com” term has achieved secondary meaning). Moreover, difficult questions may be presented when a term has multiple concur- rent meanings to consumers or a meaning that has changed over time. See, e.g., 2 J. McCarthy, Trademarks and Unfair Competition §12:51 (5th ed. 2019) (discussing terms that are “a generic name to some, a trade- mark to others”); id., §12:49 (“Determining the distinction between ge- neric and trademark usage of a word . . . when there are no other sellers of [the good or service] is one of the most difficult areas of trademark law.”). Such issues are not here entailed, for the PTO does not contest the lower courts’ assessment of consumer perception in this case. See Pet. for Cert. I; Brief for Petitioners 17–18. For the same reason, while the dissent questions the evidence on which the lower courts relied, post, at 7–8, 9, we have no occasion to reweigh that evidence. Cf. post, at 1–2 (SOTOMAYOR, J., concurring). 12 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court disserve trademark law’s animating policies. We disagree. The PTO’s principal concern is that trademark protection for a term like “Booking.com” would hinder competitors. But the PTO does not assert that others seeking to offer online hotel-reservation services need to call their services “Booking.com.” Rather, the PTO fears that trademark pro- tection for “Booking.com” could exclude or inhibit competi- tors from using the term “booking” or adopting domain names like “ebooking.com” or “hotel-booking.com.” Brief for Petitioners 27–28. The PTO’s objection, therefore, is not to exclusive use of “Booking.com” as a mark, but to undue con- trol over similar language, i.e., “booking,” that others should remain free to use. That concern attends any descriptive mark. Responsive to it, trademark law hems in the scope of such marks short of denying trademark protection altogether. Notably, a competitor’s use does not infringe a mark unless it is likely to confuse consumers. See §§1114(1), 1125(a)(1)(A); 4 McCarthy §23:1.50 (collecting state law). In assessing the likelihood of confusion, courts consider the mark’s distinc- tiveness: “The weaker a mark, the fewer are the junior uses that will trigger a likelihood of consumer confusion.” 2 id., §11:76. When a mark incorporates generic or highly de- scriptive components, consumers are less likely to think that other uses of the common element emanate from the mark’s owner. Ibid. Similarly, “[i]n a ‘crowded’ field of look- alike marks” (e.g., hotel names including the word “grand”), consumers “may have learned to carefully pick out” one mark from another. Id., §11:85. And even where some con- sumer confusion exists, the doctrine known as classic fair use, see id., §11:45, protects from liability anyone who uses a descriptive term, “fairly and in good faith” and “otherwise than as a mark,” merely to describe her own goods. 15 U.S. C. §1115(b)(4); see KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 122–123 (2004). Cite as: 591 U. S. ____ (2020) 13 Opinion of the Court These doctrines guard against the anticompetitive ef- fects the PTO identifies, ensuring that registration of “Booking.com” would not yield its holder a monopoly on the term “booking.” Booking.com concedes that “Booking.com” would be a “weak” mark. Tr. of Oral Arg. 66. See also id., at 42–43, 55. The mark is descriptive, Booking.com recog- nizes, making it “harder . . . to show a likelihood of confu- sion.” Id., at 43. Furthermore, because its mark is one of many “similarly worded marks,” Booking.com accepts that close variations are unlikely to infringe. Id., at 66. And Booking.com acknowledges that federal registration of “Booking.com” would not prevent competitors from using the word “booking” to describe their own services. Id., at 55. The PTO also doubts that owners of “generic.com” brands need trademark protection in addition to existing competi- tive advantages. Booking.com, the PTO argues, has al- ready seized a domain name that no other website can use and is easy for consumers to find. Consumers might enter “the word ‘booking’ in a search engine,” the PTO observes, or “proceed directly to ‘booking.com’ in the expectation that [online hotel-booking] services will be offered at that ad- dress.” Brief for Petitioners 32. Those competitive ad- vantages, however, do not inevitably disqualify a mark from federal registration. All descriptive marks are intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone direc- tory. The Lanham Act permits registration nonetheless. See §1052(e), (f ). And the PTO fails to explain how the ex- clusive connection between a domain name and its owner makes the domain name a generic term all should be free to use. That connection makes trademark protection more appropriate, not less. See supra, at 9. Finally, even if “Booking.com” is generic, the PTO urges, unfair-competition law could prevent others from passing off their services as Booking.com’s. Cf. Genesee Brewing Co. 14 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court v. Stroh Brewing Co., 124 F.3d 137, 149 (CA2 1997); Blinded Veterans Assn. v. Blinded Am. Veterans Founda- tion, 872 F.2d 1035, 1042–1048 (CADC 1989). But federal trademark registration would offer Booking.com greater protection. See, e.g., Genesee Brewing, 124 F.3d, at 151 (unfair-competition law would oblige competitor at most to “make more of an effort” to reduce confusion, not to cease marketing its product using the disputed term); Matal, 582 U. S., at ___ (slip op., at 5) (federal registration confers val- uable benefits); Brief for Respondent 26 (expressing inten- tion to seek protections available to trademark owners un- der the Anticybersquatting Consumer Protection Act, 15 U.S. C. §1125(d)); Brief for Coalition of .Com Brand Own- ers as Amici Curiae 14–19 (trademark rights allow mark owners to stop domain-name abuse through private dispute resolution without resorting to litigation). We have no cause to deny Booking.com the same benefits Congress ac- corded other marks qualifying as nongeneric. * * * The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with “.com” yields a generic composite. For the above-stated rea- sons, we decline a rule of that order, one that would largely disallow registration of “generic.com” terms and open the door to cancellation of scores of currently registered marks. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registra- tion is Affirmed. Cite as: 591 U. S. ____ (2020) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 19–46 _________________ UNITED STATES PATENT AND TRADEMARK OFFICE, ET AL., PETITIONERS v. BOOKING.COM B. V.

This case concerns eligibility for federal trademark regis- tration. Respondent Booking.com, an enterprise that main- tains a travel-reservation website by the same name, sought to register the mark “Booking.com.” Concluding that “Booking.com” is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) re- fused registration. A generic name—the name of a class of products or ser- vices—is ineligible for federal trademark registration. The word “booking,” the parties do not dispute, is generic for hotel-reservation services. “Booking.com” must also be ge- neric, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a ge- neric word and “.com” is generic. In accord with the first- and second-instance judgments in this case, we reject the PTO’s sweeping rule. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to Consumers, according to lower court determinations un- contested here by the PTO, do not perceive the term 2 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court “Booking.com” to signify online hotel-reservation services as a class. In circumstances like those this case presents, a “generic.com” term is not generic and can be eligible for fed- eral trademark registration. I A A trademark distinguishes one producer’s goods or ser- vices from another’s. Guarding a trademark against use by others, this Court has explained, “secure[s] to the owner of the mark the goodwill” of her business and “protect[s] the ability of consumers to distinguish among competing pro- ducers.” Park ’N 46 U.S. 18, 18 ; see S. Rep. No. 1333, 7th Cong., 2d Sess., 3 (146) (trademark statutes aim to “protect the pub- lic so it may be confident that, in purchasing a product bear- ing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get”). Trademark protection has roots in common law and equity. Matal v. Tam, 582 U. S. (slip op., at 2). To- day, the Lanham Act, enacted in 146, provides federal statutory protection for trademarks. as amended, 15 U.S. C. et seq. We have recognized that federal trademark protection, supplementing state law, “supports the free flow of commerce” and “foster[s] compe- tition.” Matal, 582 U. S., at – (slip op., at 3, 4–5) (internal quotation marks omitted). The Lanham Act not only arms trademark owners with federal claims for relief; importantly, it establishes a sys- tem of federal trademark registration. The owner of a mark on the principal register enjoys “valuable benefits,” includ- ing a presumption that the mark is valid. Iancu v. Brunetti, 588 U. S. (201) (slip op., at 2); see §, 1052. The supplemental register contains other product and ser- vice designations, some of which could one day gain eligibil- ity for the principal register. See The supplemental Cite as: 51 U. S. (2020) 3 Opinion of the Court register accords more modest benefits; notably, a listing on that register announces one’s use of the designation to oth- ers considering a similar mark. See 3 J. McCarthy, Trade- marks and Unfair Competition (5th ed. 201) (here- inafter McCarthy). Even without federal registration, a mark may be eligible for protection against infringement under both the Lanham Act and other sources of law. See Matal, 582 U. S., at – (slip op., at 4–5). Prime among the conditions for registration, the mark must be one “by which the goods of the applicant may be distinguished from the goods of others.” see (supplemental register contains “marks capable of distin- guishing goods or services”). Distinctiveness is often ex- pressed on an increasing scale: Word marks “may be (1) ge- neric; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (12). The more distinctive the mark, the more readily it quali- fies for the principal register. The most distinctive marks— those that are “ ‘arbitrary’ (‘Camel’ cigarettes), ‘fanciful’ (‘Kodak’ film), or ‘suggestive’ (‘Tide’ laundry detergent)”— may be placed on the principal register because they are “inherently distinctive.” Wal-Mart “Descriptive” terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. E.g., Park ’N (CA 183) (“Park ’N ” airport parking is descriptive), rev’d on other grounds, The Lanham Act, “lib- eraliz[ing] the common law,” “extended protection to de- scriptive marks.” Qualitex But to be placed on the principal register, descriptive terms must achieve significance “in the minds of the public” as identifying the applicant’s goods or services—a quality called “acquired distinctiveness” or “sec- ondary meaning.” Wal-Mart 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court (internal quotation marks omitted); see (f ). Without secondary meaning, descriptive terms may be eligible only for the supplemental register. At the lowest end of the distinctiveness scale is “the generic name for the goods or services.” 1064(3), 1065(4). The name of the good itself (e.g., “wine”) is incapable of “distinguish[ing] [one producer’s goods] from the goods of others” and is therefore ineligible for registra- tion. see Indeed, generic terms are ordi- narily ineligible for protection as trademarks at all. See Restatement (Third) of Unfair Competition p. 142 (13); Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (CA2 1) (“[E]veryone may use [generic terms] to refer to the goods they designate.”). B Booking.com is a digital travel company that provides hotel reservations and other services under the brand “Booking.com,” which is also the domain name of its web- site.1 Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term “Booking.com.”2 Both a PTO examining attorney and the PTO’s Trade- mark Trial and Appeal Board concluded that the term “Booking.com” is generic for the services at issue and is therefore unregistrable. “Booking,” the Board observed, means making travel reservations, and “.com” signifies a —————— 1 A domain name identifies an address on the Internet. The rightmost component of a domain name—“.com” in “Booking.com”—is known as the top-level domain. Domain names are unique; that is, a given domain name is assigned to only one entity at a time. 2 For simplicity, this opinion uses the term “trademark” to encompass the marks whose registration Booking.com seeks. Although Book- ing.com uses the marks in connection with services, not goods, rendering the marks “service marks” rather than “trademarks” under 15 U.S. C. that distinction is immaterial to the issue before us. Cite as: 51 U. S. (2020) 5 Opinion of the Court commercial website. The Board then ruled that “customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings.” App. to Pet. for Cert. 164a, 176a. Alternatively, the Board held that even if “Booking.com” is descriptive, not generic, it is unregistrable because it lacks secondary meaning. Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not pre- sented to the agency. See Relying in significant part on Booking.com’s new evidence of consumer percep- tion, the District Court concluded that “Booking.com”—un- like “booking”—is not generic. The “consuming public,” the court found, “primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving ‘booking’ available at that domain name.” Book- ing.com Having determined that “Booking.com” is descriptive, the District Court additionally found that the term has ac- quired secondary meaning as to hotel-reservation services. For those services, the District Court therefore concluded, Booking.com’s marks meet the distinctiveness requirement for registration. The PTO appealed only the District Court’s determina- tion that “Booking.com” is not generic. Finding no error in the District Court’s assessment of how consumers perceive the term “Booking.com,” the Court of Appeals for the Fourth Circuit affirmed the court of first instance’s judg- ment. In so ruling, the appeals court rejected the PTO’s contention that the combination of “.com” with a generic term like “booking” “is necessarily generic.” 15 F.3d 184 (201). Dissenting in relevant part, Judge Wynn con- cluded that the District Court mistakenly presumed that “generic.com” terms are usually descriptive, not generic. 6 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court We granted certiorari, 58 U. S. (201), and now af- firm the Fourth Circuit’s decision. II Although the parties here disagree about the circum- stances in which terms like “Booking.com” rank as generic, several guiding principles are common ground. First, a “ge- neric” term names a “class” of goods or services, rather than any particular feature or exemplification of the class. Brief for Petitioners 4; Brief for Respondent 6; see 1064(3), 1065(4) (referring to “the generic name for the goods or services”); Park ’N (“A generic term is one that refers to the genus of which the particular product is a species.”). Second, for a compound term, the distinctiveness inquiry trains on the term’s meaning as a whole, not its parts in isolation. Reply Brief ; Brief for Respondent 2; see Estate of P. D. Beckwith, Inc. v. Commissioner of Patents, Third, the relevant meaning of a term is its meaning to Brief for Petitioners 43–44; Brief for Respondent 2; see Bayer 50 (SDNY 121) (Hand, J.) (“What do the buyers understand by the word for whose use the parties are contending?”). Eligibility for registration, all agree, turns on the mark’s capacity to “distinguis[h]” goods “in commerce.” Evidencing the Lanham Act’s focus on consumer perception, the section governing cancellation of registration provides that “[t]he primary significance of the registered mark to the relevant public shall be the test for determining whether the registered mark has become the generic name of goods or services.” —————— 3 The U. S. Patent and Trademark Office (PTO) suggests that the primary-significance test might not govern outside the context of which subjects to cancellation marks previously registered that have “become” generic. See Reply Brief 11; Tr. of Oral Arg. 1. To Cite as: 51 U. S. (2020) 7 Opinion of the Court Under these principles, whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if “Booking.com” were generic, we might expect consumers to understand Travelocity—another such service—to be a “Booking.com.” We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite “Booking.com” provider. Consumers do not in fact perceive the term “Booking.com” that way, the courts below determined. The PTO no longer disputes that determination. See Pet. for Cert. I; Brief for Petitioners 17–18 (contending only that a consumer-perception inquiry was unnecessary, not that the lower courts’ consumer-perception determination was wrong). That should resolve this case: Because “Booking.com” is not a generic name to consumers, it is not generic. III Opposing that conclusion, the PTO urges a nearly per se rule that would render “Booking.com” ineligible for regis- tration regardless of specific evidence of consumer percep- tion. In the PTO’s view, which the dissent embraces, when a generic term is combined with a generic top-level domain —————— so confine the primary-significance test, however, would upset the un- derstanding, shared by Courts of Appeals and the PTO’s own manual for trademark examiners, that the same test governs whether a mark is reg- istrable in the first place. See, e.g., In re Cordua Restaurants, Inc., 823 F.3d 54, 5 (CA Fed. 2016); Nartron ; Genesee ; Trademark Manual of Examining Procedure p. 1200–267 (Oct. 2018), http://tmep.uspto.gov. We need not address today the scope of the primary-significance test’s application, for our analysis does not depend on whether one meaning among several is “primary.” Sufficient to resolve this case is the undis- puted principle that consumer perception demarcates a term’s meaning. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court like “.com,” the resulting combination is generic. In other words, every “generic.com” term is generic according to the PTO, absent exceptional circumstances.4 The PTO’s own past practice appears to reflect no such comprehensive rule. See, e.g., Trademark Registration No. 3,601,346 (“ART.COM” on principal register for, inter alia, “[o]nline retail store services” offering “art prints, original art, [and] art reproductions”); Trademark Registration No. 2,580,467 (“DATING.COM” on supplemental register for “dating services”). Existing registrations inconsistent with the rule the PTO now advances would be at risk of cancel- lation if the PTO’s current view were to prevail. See We decline to adopt a rule essentially excluding registration of “generic.com” marks. As explained below, we discern no support for the PTO’s current view in trade- mark law or policy. A The PTO urges that the exclusionary rule it advocates follows from a common-law principle, applied in Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 58 (1888), that a generic corporate designation added to a generic term does not confer trademark eligibility. In Goodyear, a decision predating the Lanham Act, this Court held that “Goodyear Rubber Company” was not “capable of exclusive appropriation.” Standing alone, the term “Goodyear Rubber” could not serve as a trademark because it referred, in those days, to “well-known classes of goods produced by the process known as Goodyear’s invention.” “[A]ddition of the word ‘Company’ ” supplied no protectable meaning, the Court concluded, —————— 4 The PTO notes only one possible exception: Sometimes adding a ge- neric term to a generic top-level domain results in wordplay (for example, “tennis.net”). That special case, the PTO acknowledges, is not presented here and does not affect our analysis. See Brief for Petitioners 25, n. 6; Tr. of Oral Arg. 25–26. Cite as: 51 U. S. (2020) Opinion of the Court because adding “Company” “only indicates that parties have formed an association or partnership to deal in such goods.” Permitting exclusive rights in “Goodyear Rubber Company” (or “Wine Company, Cotton Company, or Grain Company”), the Court explained, would tread on the right of all persons “to deal in such articles, and to publish the fact to the world.” –603. “Generic.com,” the PTO maintains, is like “Generic Com- pany” and is therefore ineligible for trademark protection, let alone federal registration. According to the PTO, adding “.com” to a generic term—like adding “Company”—“conveys no additional meaning that would distinguish [one pro- vider’s] services from those of other providers.” Brief for Petitioners 44. The dissent endorses that proposition: “Ge- neric.com” conveys that the generic good or service is of- fered online “and nothing more.” Post, at 1. That premise is faulty. A “generic.com” term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so “[a] con- sumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some spe- cific entity.” Brief for Petitioners 40. See also Tr. of Oral Arg. 5 (“Because domain names are one of a kind, a signifi- cant portion of the public will always understand a generic ‘.com’ term to refer to a specific business”); post, at 7 (the “exclusivity” of “generic.com” terms sets them apart from terms like “Wine, Inc.” and “The Wine Company”). Thus, consumers could understand a given “generic.com” term to describe the corresponding website or to identify the website’s proprietor. We therefore resist the PTO’s position that “generic.com” terms are capable of signifying only an entire class of online goods or services and, hence, 10 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court are categorically incapable of identifying a source.5 The PTO’s reliance on Goodyear is flawed in another re- spect. The PTO understands Goodyear to hold that “Ge- neric Company” terms “are ineligible for trademark protec- tion as a matter of law”—regardless of how “consumers would understand” the term. Brief for Petitioners 38. But, as noted, whether a term is generic depends on its meaning to That bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception. Instead, Goodyear reflects a more modest principle harmonious with Congress’ subsequent enactment: A compound of generic el- ements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services. The PTO also invokes the oft-repeated principle that “no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise —————— 5 In passing, the PTO urges us to disregard that a domain name is as- signed to only one entity at a time. That fact, the PTO suggests, stems from “a functional characteristic of the Internet and the domain-name system,” and functional features cannot receive trademark protection. Brief for Petitioners “[A] product feature is functional, and cannot serve as a trademark,” we have held, “if it is essential to the use or pur- pose of the article or if it affects the cost or quality of the article.” TrafFix Devices, (internal quotation marks omitted); see (barring from the principal reg- istrar “any matter that, as a whole, is functional”). This case, however, does not concern trademark protection for a feature of the Internet or the domain-name system; Booking.com lays no claim to the use of unique domain names generally. Nor does the PTO contend that the particular domain name “Booking.com” is essential to the use or purpose of online hotel-reservation services, affects these services’ cost or quality, or is oth- erwise necessary for competitors to use. In any event, we have no occa- sion to decide the applicability of ’s functionality bar, for the sole ground on which the PTO refused registration, and the sole claim before us, is that “Booking.com” is generic. Cite as: 51 U. S. (2020) 11 Opinion of the Court it cannot deprive competing manufacturers of the prod- uct of the right to call an article by its name.” Abercrombie & Fitch (CA2 176). That principle presupposes that a generic term is at issue. But the PTO’s only legal basis for deeming “generic.com” terms generic is its mistaken reliance on Goodyear. While we reject the rule proffered by the PTO that “generic.com” terms are generic names, we do not embrace a rule automatically classifying such terms as nongeneric. Whether any given “generic.com” term is generic, we hold, depends on whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of dis- tinguishing among members of the class.6 B The PTO, echoed by the dissent, post, at 10–12, objects that protecting “generic.com” terms as trademarks would —————— 6 Evidence informing that inquiry can include not only consumer sur- veys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term’s meaning. Surveys can be helpful evidence of consumer perception but require care in their design and interpretation. See Brief for Trademark Scholars as Amici Curiae 18–20 (urging that survey respondents may conflate the fact that domain names are exclusive with a conclusion that a given “generic.com” term has achieved secondary meaning). Moreover, difficult questions may be presented when a term has multiple concur- rent meanings to consumers or a meaning that has changed over time. See, e.g., 2 J. McCarthy, Trademarks and Unfair Competition (5th ed. 201) (discussing terms that are “a generic name to some, a trade- mark to others”); §12:4 (“Determining the distinction between ge- neric and trademark usage of a word when there are no other sellers of [the good or service] is one of the most difficult areas of trademark law.”). Such issues are not here entailed, for the PTO does not contest the lower courts’ assessment of consumer perception in this case. See Pet. for Cert. I; Brief for Petitioners 17–18. For the same reason, while the dissent questions the evidence on which the lower courts relied, post, at 7–8, we have no occasion to reweigh that evidence. Cf. post, at 1–2 (SOTOMAYOR, J., concurring). 12 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court disserve trademark law’s animating policies. We disagree. The PTO’s principal concern is that trademark protection for a term like “Booking.com” would hinder competitors. But the PTO does not assert that others seeking to offer online hotel-reservation services need to call their services “Booking.com.” Rather, the PTO fears that trademark pro- tection for “Booking.com” could exclude or inhibit competi- tors from using the term “booking” or adopting domain names like “ebooking.com” or “hotel-booking.com.” Brief for Petitioners 27–28. The PTO’s objection, therefore, is not to exclusive use of “Booking.com” as a mark, but to undue con- trol over similar language, i.e., “booking,” that others should remain free to use. That concern attends any descriptive mark. Responsive to it, trademark law hems in the scope of such marks short of denying trademark protection altogether. Notably, a competitor’s use does not infringe a mark unless it is likely to confuse See 1125(a)(1)(A); 4 McCarthy (collecting state law). In assessing the likelihood of confusion, courts consider the mark’s distinc- tiveness: “The weaker a mark, the fewer are the junior uses that will trigger a likelihood of consumer confusion.” 2 When a mark incorporates generic or highly de- scriptive components, consumers are less likely to think that other uses of the common element emanate from the mark’s owner. Similarly, “[i]n a ‘crowded’ field of look- alike marks” (e.g., hotel names including the word “grand”), consumers “may have learned to carefully pick out” one mark from another. And even where some con- sumer confusion exists, the doctrine known as classic fair use, see protects from liability anyone who uses a descriptive term, “fairly and in good faith” and “otherwise than as a mark,” merely to describe her own goods. 15 U.S. C. see KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., Cite as: 51 U. S. (2020) 13 Opinion of the Court These doctrines guard against the anticompetitive ef- fects the PTO identifies, ensuring that registration of “Booking.com” would not yield its holder a monopoly on the term “booking.” Booking.com concedes that “Booking.com” would be a “weak” mark. Tr. of Oral Arg. 66. See also at 42–43, 55. The mark is descriptive, Booking.com recog- nizes, making it “harder to show a likelihood of confu- sion.” Furthermore, because its mark is one of many “similarly worded marks,” Booking.com accepts that close variations are unlikely to infringe. 6. And Booking.com acknowledges that federal registration of “Booking.com” would not prevent competitors from using the word “booking” to describe their own services. at 55. The PTO also doubts that owners of “generic.com” brands need trademark protection in addition to existing competi- tive advantages. Booking.com, the PTO argues, has al- ready seized a domain name that no other website can use and is easy for consumers to find. Consumers might enter “the word ‘booking’ in a search engine,” the PTO observes, or “proceed directly to ‘booking.com’ in the expectation that [online hotel-booking] services will be offered at that ad- dress.” Brief for Petitioners Those competitive ad- vantages, however, do not inevitably disqualify a mark from federal registration. All descriptive marks are intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone direc- tory. The Lanham Act permits registration nonetheless. See (f ). And the PTO fails to explain how the ex- clusive connection between a domain name and its owner makes the domain name a generic term all should be free to use. That connection makes trademark protection more appropriate, not less. See at Finally, even if “Booking.com” is generic, the PTO urges, unfair-competition law could prevent others from passing off their services as Booking.com’s. Cf. Genesee Co. 14 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. Opinion of the Court v. Stroh Co., 14 ; Blinded Veterans (CADC 18). But federal trademark registration would offer Booking.com greater protection. See, e.g., Genesee (unfair-competition law would oblige competitor at most to “make more of an effort” to reduce confusion, not to cease marketing its product using the disputed term); Matal, 582 U. S., at (slip op., at 5) (federal registration confers val- uable benefits); Brief for Respondent 26 (expressing inten- tion to seek protections available to trademark owners un- der the Anticybersquatting Consumer Protection Act, 15 U.S. C. Brief for Coalition ofCom Brand Own- ers as Amici Curiae 14–1 (trademark rights allow mark owners to stop domain-name abuse through private dispute resolution without resorting to litigation). We have no cause to deny Booking.com the same benefits Congress ac- corded other marks qualifying as nongeneric. * * * The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with “.com” yields a generic composite. For the above-stated rea- sons, we decline a rule of that order, one that would largely disallow registration of “generic.com” terms and open the door to cancellation of scores of currently registered marks. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registra- tion is Affirmed. Cite as: 51 U. S. (2020) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES No. 1–46 UNITED STATES PATENT AND TRADEMARK OFFICE, ET AL., PETITIONERS v. BOOKING.COM B. V.

Justice Powell

second_dissenting

Automobile Workers v. Brock

https://www.courtlistener.com/opinion/111720/automobile-workers-v-brock/

https://www.courtlistener.com/api/rest/v3/clusters/111720/

1985-126

The Court today holds that petitioner UAW has standing to proceed in a suit challenging the Secretary of Labor's interpretation of the eligibility provisions of the Trade Act, codified at 19 U.S. C. § 2291, because those members of the UAW who have claims pending before a state administrative agency would have standing to bring a similar suit. The record, however, provides no information as to how many members of the UAW fall within this potential class. There is the danger that ultimately the number of members that the UAW can represent will be quite small. The Union may therefore lack the incentive to provide the adequate representation needed by the courts. It is well settled that an association can represent its members' interest in a third-party action when an association has alleged a related injury. E. g., Warth v. Seldin, 422 U.S. 490 (1975). Moreover, in appropriate circumstances this Court has conferred standing upon an association whose members have suffered an alleged injury, even though the organization itself has not suffered an injury. In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977), the Court stated: "[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id., at 343. It is undisputed that achieving unemployment benefits under the program of trade readjustment allowance is "germane" to the UAW's purpose in the sense that one of its goals is to secure such benefits for its workers. I do not believe, however, that a determination of "germane" in this formalistic *297 sense should be sufficient to confer standing upon the UAW here. A consistent concern of our standing cases has been the adequacy of representation of the organization purportedly acting on behalf of the injured parties, especially when the organization itself has not suffered injury. This Court has repeatedly expressed its reluctance to confer standing on third parties for fear of inadequate representation. "The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them." Singleton v. Wulff, 428 U.S. 106, 114 (1976) (opinion of BLACKMUN, J.). See, e. g., Baker v. Carr, 369 U.S. 186, 204 (1962) (standing requirement aimed at "assur[ing] that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends"); Holden v. Hardy, 169 U.S. 366, 397 (1898) (assertion of third parties' rights would come with "greater cogency" from the third parties themselves). Since the concept of organizational representation is based on a theoretical identity between the organization and its members, the organization's interest in the outcome is based on the members' stake in the outcome. The number of members in the organization with a concrete stake in the outcome, however, may be so small that this theoretical identity disappears. It may develop in this case, in fact, that the great majority of members in the Union have little or no interest in the litigation. Moreover, a union may have reasons for instituting a suit — such as the publicity that attends a major case — other than to assert rights of its members. In such a case, the "concrete adverseness" required throughout a litigation by our cases may be absent.[*] *298 In the light of these dangers of inadequate representation, I would not find — on the basis of the record before us — that the UAW had standing based on an amorphous and unenumerated group of injured parties. Accordingly, I dissent.

The Court today holds that petitioner UAW has standing to proceed in a suit challenging the Secretary of Labor's interpretation of the eligibility provisions of the Trade Act, codified at 19 U.S. C. 2291, because those members of the UAW who have claims pending before a state administrative agency would have standing to bring a similar suit. The record, however, provides no information as to how many members of the UAW fall within this potential class. There is the danger that ultimately the number of members that the UAW can represent will be quite small. The Union may therefore lack the incentive to provide the adequate representation needed by the courts. It is well settled that an association can represent its members' interest in a third-party action when an association has alleged a related injury. E. g., Moreover, in appropriate circumstances this Court has conferred standing upon an association whose members have suffered an alleged injury, even though the organization itself has not suffered an injury. In the Court stated: "[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." It is undisputed that achieving unemployment benefits under the program of trade readjustment allowance is "germane" to the UAW's purpose in the sense that one of its goals is to secure such benefits for its workers. I do not believe, however, that a determination of "germane" in this formalistic *297 sense should be sufficient to confer standing upon the UAW here. A consistent concern of our standing cases has been the adequacy of representation of the organization purportedly acting on behalf of the injured parties, especially when the organization itself has not suffered injury. This Court has repeatedly expressed its reluctance to confer standing on third parties for fear of inadequate representation. "The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them." See, e. g., ; Since the concept of organizational representation is based on a theoretical identity between the organization and its members, the organization's interest in the outcome is based on the members' stake in the outcome. The number of members in the organization with a concrete stake in the outcome, however, may be so small that this theoretical identity disappears. It may develop in this case, in fact, that the great majority of members in the Union have little or no interest in the litigation. Moreover, a union may have reasons for instituting a suit — such as the publicity that attends a major case — other than to assert rights of its members. In such a case, the "concrete adverseness" required throughout a litigation by our cases may be absent.[*] *298 In the light of these dangers of inadequate representation, I would not find — on the basis of the record before us — that the UAW had standing based on an amorphous and unenumerated group of injured parties. Accordingly, I dissent.

Justice Sotomayor

dissenting

Luna Torres v. Lynch

https://www.courtlistener.com/opinion/3205023/luna-torres-v-lynch/

https://www.courtlistener.com/api/rest/v3/clusters/3205023/

2015-013

The Immigration and Nationality Act (INA) metes out severe immigration consequences to a noncitizen convicted of any of a number of “aggravated felon[ies].” 8 U.S. C. §1101(a)(43). An offense “described in” 18 U.S. C. §844(i)— a federal arson statute—qualifies as such a crime. In this case, petitioner, who goes by George Luna, was convicted of third-degree arson under N. Y. Penal Law Ann. §150.10 (West 2010), which punishes anyone who (1) “intentionally” (2) “damages,” by (3) “starting a fire or causing an explosion,” (4) “a building or motor vehicle.” By contrast, the federal arson statute, 18 U.S. C. §844(i), applies when someone (1) “maliciously” (2) “damages or destroys,” (3) “by means of fire or an explosive,” (4) “any building, vehicle, or other real or personal property” (5) “used in interstate or foreign commerce.” There is one more element in the federal offense than in the state offense—(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense “described in” the federal statute. Case closed. Not for the majority. It dubs the fifth element “jurisdic­ tional,” then relies on contextual clues to read it out of the statute altogether. As a result of the majority’s sleuthing, Luna—a long-time legal permanent resident—is foreclosed 2 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting from even appealing to the sound discretion of the Attor­ ney General to obtain relief from removal. Because prece­ dent and the text and structure of the INA require the opposite result, I respectfully dissent. I A Noncitizens convicted of crimes face various conse­ quences under the INA. Among the harshest of those consequences fall on noncitizens convicted of 1 of the approximately 80 “aggravated felonies.” A crime that falls into one of the listed provisions can be an aggravated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” See 8 U.S. C. §1101(a)(43). An aggravated felony conviction has two primary reper­ cussions for noncitizens: It renders them deportable, §1227(a)(2)(A)(iii), and it makes them categorically ineli­ gible for several forms of immigration relief ordinarily left to the discretion of the Attorney General. See, e.g., §§1229b(a)–(b) (cancellation of removal). The dozens of aggravated felonies in the INA are speci­ fied in two main ways. First, some are specified by refer­ ence to a generic crime. It is an aggravated felony, for instance, to commit “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). Some of those crimes use a federal definition as one of the elements. For example: “Illicit trafficking in a controlled substance (as defined in [21 U.S. C. §802]).” 8 U.S. C. §1101(a)(43)(B) (emphasis added). (“Illicit trafficking” is a generic crime; the element of “controlled substance” takes the meaning in 21 U.S. C. §802, the “Definitions” provision of the Controlled Sub­ stances Act.) Second, it lists crimes that are wholly “described in” the federal criminal code. See, e.g., §1101(a)(43)(H) (“an of­ fense described in section 875, 876, 877, or 1202 of title 18 Cite as: 578 U. S. ____ (2016) 3 SOTOMAYOR, J., dissenting (relating to the demand for or receipt of ransom)”); §1101(a)(43)(I) (“an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography)”). The Government contends that Luna committed a crime in this second category: an “offense described in” 18 U.S. C. §844(i), which criminalizes arson. 8 U.S. C. §1101(a)(43)(E)(i). B In 2006, Luna was found removable from the United States. He attempted to apply for cancellation of removal, a form of relief available to long-time legal permanent residents at the discretion of the Attorney General. §1229b(a). Nothing in Luna’s history would otherwise preclude cancellation. He was the sole source of financial support for his U. S. citizen fiancée, enrolled in college and studying engineering, a homeowner, and a law-abiding legal permanent resident since he was brought to the United States as a child over 30 years ago, aside from the one third-degree arson conviction at issue in this case, for which he served a day in jail. But the Immigration Judge found—and the Board of Immigration Appeals and the Second Circuit confirmed— that Luna was ineligible for cancellation of removal. Luna’s New York State arson conviction, the judge held, qualified as an aggravated felony under the provision for “an offense described in” §844(i), a federal arson statute. See §1101(a)(43)(E)(i). Aggravated felons are ineligible for can- cellation of removal. See §1229b(a)(3). Luna’s cancellation- of-removal application was thus summarily denied. II But the offense of which Luna was convicted is not “described in” §844(i). This Court’s ordinary method of interpreting the aggravated felony statute, the plain text of that provision, and the structure of the INA all confirm as much. 4 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting A This is not the first time the Court has been tasked with determining whether a state offense constitutes an “ag­ gravated felony” under the INA. Until today, the Court has always required the state offense to match every ele­ ment of the listed “aggravated felony.” Kawashima v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 4); see also Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (slip op., at 4–5); Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010); Nijhawan v. Holder, 557 U.S. 29, 33 (2009); Gon- zales v. Duenas-Alvarez, 549 U.S. 183, 185 (2007); Lopez v. Gonzales, 549 U.S. 47, 52–53 (2006); Leocal v. Ashcroft, 543 U.S. 1, 8 (2004). Our ordinary methodology thus confirms that the federal arson statute does not describe the New York arson stat­ ute under which Luna was convicted. As I have outlined above, see supra, at 1, the federal statute is more limited: It applies only to fires that involve “interstate or foreign commerce.” The state statute contains no such limitation. Thus, under the approach we have used in every case to date, the omission of the interstate commerce element means that Luna’s state arson conviction was not an aggravated felony under the INA. B The plain language of the statute supports this straight­ forward approach. The word “describe” means to “ex­ press,” “portray,” or “represent.” See Black’s Law Diction­ ary 445 (6th ed. 1990); Webster’s Third New International Dictionary 610 (1986). A description may be “detailed” or it may be general, setting forth only the “recognizable features, or characteristic marks,” of the thing described while leaving the rest to the imagination. 4 Oxford Eng­ lish Dictionary 512 (2d ed. 1989). For example, a Craigslist ad describing an apartment with “in-unit laun­ dry, a dishwasher, rooftop access, central A/C, and a walk-in Cite as: 578 U. S. ____ (2016) 5 SOTOMAYOR, J., dissenting closet” may leave much to the imagination. After all, the description does not mention the apartment’s square footage, windows, or floor number. But though the ad omits features, we would still call it a “description” be­ cause it accurately conveys the “recognizable features” of the apartment. However, even the most general description cannot refer to features that the thing being described does not have. The ad is only an accurate description if the apartment “described in” it has at least the five features listed. If the apartment only has four of the five listed features—there is no rooftop access, say, or the walk-in closet is not so much walk-in as shimmy-in—then the Craigslist ad no longer “describes” the apartment. Rather, it misdescribes it. So, too, with the statutes in this case. The federal de­ scription can be general as long as it is still accurate—that is, as long as the state law has at least all of the elements in the federal law. But there is no meaning of “describe” that allows the Court to say §844(i) “describes” the New York offense when the New York offense only has four of the five elements listed in §844(i). Section 844(i) misde­ scribes the New York offense just as surely as the too- good-to-be-true Craigslist ad misdescribes the real-life apartment. C The structure of the INA confirms that conclusion and makes clear that we need not contort the ordinary, accepted meaning of the phrase “described in.” The INA has many overlapping provisions that assign carefully calibrated consequences to various types of criminal convictions. The Court thus need not interpret any provision—and certainly none of the aggravated felony provisions, among the harshest in the INA—as broadly as possible because the INA as a whole ensures that serious criminal conduct 6 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting is adequately captured. That overlapping structure is apparent throughout the INA. First, the aggravated felony list itself has multiple fail-safe provisions. Most serious offenses, for instance, will qualify as “crime[s] of violence . . . for which the term of imprisonment [is] at least one year,” 8 U.S. C. §1101(a)(43)(F), even if they are not covered by a more specific provision in the aggravated felony list. Had his crime been charged as a more serious arson and had he been punished by one year of imprisonment instead of one day, Luna might have qualified as an aggravated felon under that provision. See Santana v. Holder, 714 F.3d 140, 145 (CA2 2013) (second-degree arson in New York is a “crime of violence”).1 —————— 1 Manyof the majority’s own examples of “the gravest” state offenses supposedly excluded from the aggravated felony list by Luna’s reading actually fall within these fail-safe provisions. Ante, at 10. Many state arsons will qualify as “crime[s] of violence” under 8 U.S. C. §1101(a)(43)(F), see, e.g., Mbea v. Gonzales, 482 F.3d 276, 279 (CA4 2007); an even greater fraction of the most serious arsons will fall under that heading because States like New York have enacted gra- dated statutes under which more severe degrees of arson are crimes of violence, see Santana, 714 F.3d, at 145. To take another of the majori­ ty’s examples, while a state conviction for demanding a ransom in a kidnaping is not “an offense described in [18 U.S. C. §875]” under §1101(a)(43)(H), a state conviction for kidnaping or conspiring to kidnap may qualify as a crime of violence under §1101(a)(43)(F). See United States v. Kaplansky, 42 F.3d 320 (CA6 1994). And even under the majority’s reading, a state-law conviction will only qualify as an aggravated felony if the “right state charge is filed.” Ante, at 14, n. 10. For example, even on the majority’s reading, a state- court defendant who sells a child for purposes of child pornography is unlikely to be convicted of “an offense described in [18 U.S. C.] §2251A,” see §1101(a)(43)(I). That is because virtually no States have a statute corresponding to 18 U.S. C. §2251A, with or without the interstate commerce element. (But see Fla. Stat. §847.0145 (2015).) Such a defendant may, however, be convicted of a state offense that qualifies as an aggravated felony for conspiring to commit sexual abuse of a minor under 8 U.S. C. §§1101(a)(43)(U) and 1101(a)(43)(A). Cite as: 578 U. S. ____ (2016) 7 SOTOMAYOR, J., dissenting Second, other sections of the INA provide intertwining coverage for serious crimes. Some examples of provisions that encompass many offenses include those for the com­ mission of a “crime involving moral turpitude,” a firearms offense, or a controlled substance offense, all of which will render a noncitizen removable, even if he or she has not committed an aggravated felony. See §§1227(a)(2)(A)(i), (B)(i), (C); §§1182(a)(2)(A)(i)–(ii). Cf. Judulang v. Holder, 565 U.S. 42, 48 (2011) (commenting on the breadth of the “crime involving moral turpitude” provision).2 And finally, in Luna’s case or anyone else’s, the Attor­ ney General can exercise her discretion to deny relief to a serious criminal whether or not that criminal has been convicted of an aggravated felony. See Carachuri- Rosendo, 560 U.S., at 581 (doubting that a narrow read­ ing of §1101(a)(43) will have “any practical effect on polic­ ing our Nation’s borders”). To be sure, on Luna’s reading, some serious conduct may not be captured by the INA. But not nearly so much as the majority suggests. By contrast, once the aggra­ vated felony statute applies to a noncitizen, no provision in the INA—and virtually no act by the Attorney General— can prevent him or her from being removed. Looking for consistency in the aggravated felony provi­ sions of the INA is often a fool’s errand. See Kawashima, 565 U. S., at ___, n. 2 (slip op., at 9, n. 2) (GINSBURG, J., dissenting) (noting the absurdity of making a tax misde­ —————— 2 Other crimes in the majority’s list of serious offenses, ante, at 10–14, will be covered by these separate INA provisions. For example, the Board of Immigration Appeals has held that any child pornography offense is a “crime involving moral turpitude,” rendering a noncitizen removable in many cases. See §§1227(a)(2)(A)(i), 1182(a)(2)(A)(i); In re Olquin-Rufino, 23 I. & N. Dec. 896 (BIA 2006). Any offense involving a gun would make a noncitizen deportable under one of the catchall provisions for buying, selling, or possessing a firearm in violation of “any law.” See §1227(a)(2)(C). 8 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting meanor, but not driving while drunk and causing serious bodily injury, an aggravated felony). But the structure of the INA gives the Court no reason to read the aggravated felony provisions as broadly as possible.3 That is why this Court has repeatedly cautioned against interpreting the aggravated felony section to sweep in offenses that—like many state arson convictions—may be neither aggravated nor felonies. See Carachuri-Rosendo, 560 U.S., at 574; Brief for National Association of Criminal Defense Law­ yers et al. as Amici Curiae 28–29 (collecting state misde­ meanor arson statutes). III The majority denies Luna the opportunity to present his case to the Attorney General based on two “contextual —————— 3 If the aggravated felony provisions were the primary mechanism for removing serious noncitizen criminals, we would expect any noncitizen convicted of an aggravated felony to face immigration consequences. In fact, the aggravated felony provisions only apply to noncitizens who are lawfully admitted or later paroled. Matter of Alyazji, 25 I. & N. Dec. 397, 399 (BIA 2011). Other noncitizens—such as undocumented immigrants, noncitizens applying for a visa, or some legal permanent residents returning after an extended stay abroad—cannot be removed based on the conviction of an aggravated felony; the Government must rely on the other provisions of the INA, including the statute’s other criminal provisions, to remove such noncitizens. See §§1101(a)(13)(A), 1182, 1227(a)(2)(A)(iii). Similarly, if the aggravated felony provision were the only way to ensure that the Attorney General exercised her discretion wisely, we would expect that discretion to be constrained as to all noncitizens who potentially pose a threat to the United States. In fact, the Attorney General is not prevented from granting cancellation of removal—the discretionary relief at issue in this case—to, for instance, a noncitizen who has not been convicted of a crime but is removable for having “received military-type training” from a terrorist organization. See §§1227(a)(4)(B), 1182(a)(3)(B)(i)(VIII), 1229b(a). In short, it cannot be the case that the aggravated felony provisions were intended to be the statute’s sole mechanism for identifying the most dangerous noncitizens. Cite as: 578 U. S. ____ (2016) 9 SOTOMAYOR, J., dissenting considerations,” ante, at 7, and an intuition about how the statute ought to work. None are sufficiently persuasive to overcome the most natural reading of the aggravated felony statute. A The majority first perceives a conflict between Luna’s reading of the INA and what it calls the “penultimate sentence” of the aggravated felony statute. The “penulti­ mate sentence” provides that an offense can be an aggra­ vated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” 8 U.S. C. §1101(a)(43). The majority claims that Luna’s reading of the INA would vitiate the quoted proviso. Ante, at 8–10. It is true that, on Luna’s reading, some of the aggra- vated felonies listed in the INA (including “an offense de­ scribed in” §844(i)) will have no state or foreign analog. But the proviso still applies to generic offenses, which constitute nearly half of the entries in the aggravated felony list. See, e.g., §§1101(a)(43)(A), (G), (M)(i). And that already-large portion jumps to close to three-quarters of the offenses after counting those many listed federal statutes with no jurisdictional element. See, e.g., §§1101(a)(43)(C), (E)(ii), (J). In fact, it applies to the vast majority of offenses adjudicated under the INA given that most serious crimes are also “crimes of violence.” See §1101(a)(43)(F).4 And the majority must admit that its interpretation will also leave entries in the aggravated-felony section with no state or foreign analogs. For instance, it seems unlikely that the proviso contemplates state analogs for the aggra­ —————— 4 When the proviso was added to the INA in 1990, it would have ap­ plied to an even greater fraction of the aggravated felonies: At that time, the aggravated felony statute listed only five offenses, four of which would have had state analogs even on Luna’s reading. See 104 Stat. 5048 (1990). 10 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting vated felony provisions regarding treason, levying war against the United States, or disclosing national defense information. See §§1101(a)(43)(L)(i), (P). In other words, under Luna’s reading, the “penultimate sentence” applies to most, but not all, of the entries of the aggravated felony statute; under the majority’s reading, the “penultimate sentence” also applies to most, but not all, of the entries of the aggravated felony statute. The majority’s first “contextual consideration” thus supplies no reason to prefer one reading over the other. B Just as important, the majority suggests, is a “settled practice of distinguishing between substantive . . . ele­ ments”—those that define “the evil Congress seeks to prevent”—and “jurisdictional element[s],” which merely “establis[h] legislative authority.” Ante, at 15. The major­ ity admits that the Court does not distinguish between substantive and jurisdictional elements for many purposes, such as proof beyond a reasonable doubt and the right to a jury trial. Ibid.; see Ring v. Arizona, 536 U.S. 584, 606 (2002). But it nonetheless insists on a standard dis­ tinction so entrenched that Congress must have intended it to apply even absent any particular indication in the INA. None of the three examples that the majority proffers is evidence of such a strong norm. First, the majority in­ vokes our rules for interpreting criminal statutes. Ante, at 15–16. Whereas our general assumption is that a de- fendant must know each fact making his conduct illegal, courts generally hold that a criminal defendant need not know the facts that satisfy the jurisdictional element of a statute. But jurisdictional elements are not the only elements a defendant need not know. Under the “default rule,” ante, at 18, n. 12, for interpreting so-called “public welfare” Cite as: 578 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting offenses, courts have held that a defendant need not know that the substance he possesses is a narcotic, that the device he possesses is unregistered, or that he reentered the United States after previously being deported. See Staples v. United States, 511 U.S. 600, 606–609, 611 (1994) (citing United States v. Balint, 258 U.S. 250 (1922), and United States v. Freed, 401 U.S. 601 (1971)); United States v. Burwell, 690 F.3d 500, 508–509 (CADC 2012); United States v. Giambro, 544 F.3d 26, 29 (CA1 2008); United States v. Martinez-Morel, 118 F.3d 710, 715–717 (CA10 1997). But surely the majority would not suggest that if we agree with those holdings regarding mens rea, we must then ignore the “controlled substance” element of the drug trafficking aggravated felony, the “unregistered” element of the unregistered firearms aggravated felony, or the “following deportation” element of the illegal reentry aggravated felony. See 8 U.S. C. §§1101(a)(43)(B), (E)(iii), (M)(i), (O). So there is likewise no reason to believe that the “default rule” for assigning mens rea to jurisdictional elements is embedded in the INA. The majority next points to two of the many statutes that, like the INA, require comparing the elements of federal and state offenses. But in each case, it is the statute’s language and context, not some “settled practice,” ante, at 15, that command the omission of the jurisdic- tional element. The majority’s first example, ante, at 16–17, is the Assimilative Crimes Act, 18 U.S. C. §13(a), a gap-filling statute that incorporates state criminal law into federal enclaves if the “act or omission” is not “made punishable by any enactment of Congress” but “would be punishable if committed or omitted within the jurisdiction of the State.” The Court held that, in identifying such a gap, courts should ignore “jurisdictional, or other technical,” differ­ ences between a state and federal statute. Lewis v. United States, 523 U.S. 155, 165 (1998). But the way courts 12 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting match the elements of a state law to a federal analog under the Assimilative Crimes Act differs fundamentally from our INA inquiry. The basic question under the As­ similative Crimes Act is whether “federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue.” Id., at 164. Under the Assimilative Crimes Act, the state statute is not compared to a single federal statute, but rather to a complex of federal statutes that roughly cover the same general conduct and “policies.” Ibid. That statute thus has little to teach us about 8 U.S. C. §1101(a)(43): In interpreting the Assimilative Crimes Act, every Member of the Court rejected the simple elements-matching approach that the Court generally employs to construe the aggra­ vated felony provisions of the INA. See 523 U.S., at 182 (KENNEDY, J., dissenting) (allowing “slight differences” in definition between federal and state statute and using “same-elements inquiry” only as a “starting point”). The majority’s analogy to the federal three strikes stat­ ute, 18 U.S. C. §3559(c)(2)(F), ante, at 17–18, is similarly unhelpful. That provision counts as a predicate “‘serious violent felony’” any “ ‘Federal or State offense . . . wherever committed, consisting of ’ ” various crimes, including sev­ eral “ ‘as described in’ ” federal statutes. Ante, at 17. (em­ phasis added). Though this Court has not construed the statute, the majority notes that courts of appeals disre­ gard the jurisdictional element of federal statutes in as­ sessing whether a state conviction is for a “serious violent felony.” Ante, at 15–16. But nearly all of the statutes listed in §3559(c)(2)(F) contain place-based jurisdiction elements—the crime must take place “within the special maritime and territorial jurisdiction of the United States,” e.g., §1111(b), or within “the special aircraft jurisdiction of the United States,” 49 U.S. C. §46502, and so on. In the two cases cited by the majority, for instance, ante, at 17, Courts of Appeals concluded that a state robbery offense Cite as: 578 U. S. ____ (2016) 13 SOTOMAYOR, J., dissenting qualified as an offense “described in” the federal bank robbery statute even though the robbery did not take place in a bank. See United States v. Wicks, 132 F.3d 383, 387 (CA7 1997); United States v. Rosario-Delgado, 198 F.3d 1354, 1357 (CA11 1999). In that statute, it is the “wher­ ever committed,” not some loose construction of “described in,” that specifically instructs the courts that the location where a crime occurs does not matter. Moreover, in other statutes where Congress wants to exclude jurisdictional elements when comparing state and federal offenses, it ordinarily just says so. See, e.g., 18 U.S. C. §3142(e)(2)(A) (requiring detention of defendant pending trial if “the person has been convicted . . . of a State or local offense that would have been an offense described in subsection (f )(1) of this section if a circum­ stance giving rise to Federal jurisdiction had existed”); §2265A(b)(1)(B); §2426(b)(1)(B); §3142(f)(1)(D); §5032; 42 U.S. C. §§671(a)(15)(D)(ii)(I)–(II); §§5106a(b)(2)(B)(xvi)(I)– (II). Absent comparably clear language, the Court should not presume that the INA intended deportability to de­ pend on a not-so-“settled practice,” ante, at 15, of occasion­ ally distinguishing between substantive and jurisdictional elements. C Finally, the majority suggests that it would be “peculiarly perverse,” ante, at 10, to adopt Luna’s plain-text reading of the statute because it would draw a distinction among crimes based on a jurisdictional element that the majority assumes is wholly divorced from “the evil Congress seeks to prevent,” ante, at 15. The jurisdictional element of a federal statute, the majority asserts, is as trivial as the perfunctory warning on a new electronic device: “[A] per­ son would say that she had followed the instructions for setting up an iPhone that are ‘described in’ the user’s manual, even if she in fact ignored the one” instructing 14 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting that she “begin by ‘read[ing] important safety infor­ mation.’ ” Ante, at 7, n. 5; see also ibid. (comparing juris­ dictional element to a “detour” in a 3-week itinerary). For instance, the majority assumes that it would not be “plausible,” ante, at 12, for Congress to have thought that interstate crimes are worse than wholly intrastate crimes. Perhaps. But when faced with an offense that, like arson, admits of a range of conduct, from the minor to the seri­ ous, Congress could plausibly have concluded that arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes and counted only the former as aggravated felonies. See, e.g., Klein et al., Why Federal Prosecutors Charge: A Comparison of Fed­ eral and New York State Arson and Robbery Filings, 2006– 2010, 51 Houston L. Rev. 1381, 1406, 1416–1419 (2014) (finding that arsons prosecuted federally involve more property damage and more injury than arsons prosecuted under state law). That is because, far from being token, “conventional jurisdictional elements” serve to narrow the kinds of crimes that can be prosecuted, not just to specify the sovereign that can do the prosecuting. Take the federal statute at issue in this case. Section 844(i) requires that the property destroyed be “used in interstate . . . com­ merce.” The Court has held that “standard, jurisdictional” element, ante, at 21, demands the property’s “active em­ ployment for commercial purposes, and not merely a pas­ sive, passing, or past connection to commerce.” Jones v. United States, 529 U.S. 848, 855 (2000). As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under §844(i) because the house was not “active[ly] used” in interstate commerce. Id., at 851. Surely, however, a New York prosecutor could have secured a conviction under N. Y. Penal Law Ann. §150.10 had the same crime been prosecuted in state, rather than Cite as: 578 U. S. ____ (2016) 15 SOTOMAYOR, J., dissenting federal, court. The difference between an offense under N. Y. Penal Law Ann. §150.10 and an offense under 18 U.S. C. §844(i) is thus more than a technical consideration about which authority chooses to prosecute. It is a difference that goes to the magnitude and nature of the “evil,” ante, at 15, itself. * * * On the majority’s reading, long-time legal permanent residents with convictions for minor state offenses are foreclosed from even appealing to the mercy of the Attor­ ney General. Against our standard method for comparing statutes and the text and structure of the INA, the majority stacks a supposed superfluity, a not-so-well-settled prac­ tice, and its conviction that jurisdictional elements are mere technicalities. But an element is an element, and I would not so lightly strip a federal statute of one. I respectfully dissent

The Immigration and Nationality Act (INA) metes out severe immigration consequences to a noncitizen convicted of any of a number of “aggravated felon[ies].” U.S. C. An offense “described in” 1 U.S. C. a federal arson statute—qualifies as such a crime. In this case, petitioner, who goes by George Luna, was convicted of third-degree arson under N. Y. Penal Law Ann. (West 2010), which punishes anyone who (1) “intentionally” (2) “damages,” by (3) “starting a fire or causing an explosion,” (4) “a building or motor vehicle.” By contrast, the federal arson statute, 1 U.S. C. applies when someone (1) “maliciously” (2) “damages or destroys,” (3) “by means of fire or an explosive,” (4) “any building, vehicle, or other real or personal property” (5) “used in interstate or foreign commerce.” There is one more element in the federal offense than in the state offense—(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense “described in” the federal statute. Case closed. Not for the majority. It dubs the fifth element “jurisdic­ tional,” then relies on contextual clues to read it out of the statute altogether. As a result of the majority’s sleuthing, Luna—a long-time legal permanent resident—is foreclosed 2 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting from even appealing to the sound discretion of the Attor­ ney General to obtain relief from removal. Because prece­ dent and the text and structure of the INA require the opposite result, I respectfully dissent. I A Noncitizens convicted of crimes face various conse­ quences under the INA. Among the harshest of those consequences fall on noncitizens convicted of 1 of the approximately 0 “aggravated felonies.” A crime that falls into one of the listed provisions can be an aggravated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” See U.S. C. An aggravated felony conviction has two primary reper­ cussions for noncitizens: It renders them deportable, and it makes them categorically ineli­ gible for several forms of immigration relief ordinarily left to the discretion of the Attorney General. See, e.g., (cancellation of removal). The dozens of aggravated felonies in the INA are speci­ fied in two main ways. First, some are specified by refer­ ence to a generic crime. It is an aggravated felony, for instance, to commit “murder, rape, or sexual abuse of a minor.” Some of those crimes use a federal definition as one of the elements. For example: “Illicit trafficking in a controlled substance (as defined in [21 U.S. C. U.S. C. (emphasis added). (“Illicit trafficking” is a generic crime; the element of “controlled substance” takes the meaning in 21 U.S. C. the “Definitions” provision of the Controlled Sub­ stances Act.) Second, it lists crimes that are wholly “described in” the federal criminal code. See, e.g., (“an of­ fense described in section 75, 76, 77, or 1202 of title 1 Cite as: 57 U. S. (2016) 3 SOTOMAYOR, J., dissenting (relating to the demand for or receipt of ransom)”); (“an offense described in section 2251, 2251A, or 2252 of title 1 (relating to child pornography)”). The Government contends that Luna committed a crime in this second category: an “offense described in” 1 U.S. C. which criminalizes arson. U.S. C. B In Luna was found removable from the United States. He attempted to apply for cancellation of removal, a form of relief available to long-time legal permanent residents at the discretion of the Attorney General. Nothing in Luna’s history would otherwise preclude cancellation. He was the sole source of financial support for his U. S. citizen fiancée, enrolled in college and studying engineering, a homeowner, and a law-abiding legal permanent resident since he was brought to the United States as a child over 30 years ago, aside from the one third-degree arson conviction at issue in this case, for which he served a day in jail. But the Immigration Judge found—and the Board of Immigration Appeals and the Second Circuit confirmed— that Luna was ineligible for cancellation of removal. Luna’s New York State arson conviction, the judge held, qualified as an aggravated felony under the provision for “an offense described in” a federal arson statute. See Aggravated felons are ineligible for can- cellation of removal. See Luna’s cancellation- of-removal application was thus summarily denied. II But the offense of which Luna was convicted is not “described in” This Court’s ordinary method of interpreting the aggravated felony statute, the plain text of that provision, and the structure of the INA all confirm as much. 4 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting A This is not the first time the Court has been tasked with determining whether a state offense constitutes an “ag­ gravated felony” under the INA. Until today, the Court has always required the state offense to match every ele­ ment of the listed “aggravated felony.” Kawashima v. Holder, 565 U. S. (slip op., at 4); see also Moncrieffe v. Holder, 569 U. S. (2013) (slip op., at 4–5); (2010); ; Gon- ; Lopez v. Gonzales, ; Our ordinary methodology thus confirms that the federal arson statute does not describe the New York arson stat­ ute under which Luna was convicted. As I have outlined above, see the federal statute is more limited: It applies only to fires that involve “interstate or foreign commerce.” The state statute contains no such limitation. Thus, under the approach we have used in every case to date, the omission of the interstate commerce element means that Luna’s state arson conviction was not an aggravated felony under the INA. B The plain language of the statute supports this straight­ forward approach. The word “describe” means to “ex­ press,” “portray,” or “represent.” See Black’s Law Diction­ ary 445 (6th ed. 1990); Webster’s Third New International Dictionary 610 (196). A description may be “detailed” or it may be general, setting forth only the “recognizable features, or characteristic marks,” of the thing described while leaving the rest to the imagination. 4 Oxford Eng­ lish Dictionary 512 (2d ed. 199). For example, a Craigslist ad describing an apartment with “in-unit laun­ dry, a dishwasher, rooftop access, central A/C, and a walk-in Cite as: 57 U. S. (2016) 5 SOTOMAYOR, J., dissenting closet” may leave much to the imagination. After all, the description does not mention the apartment’s square footage, windows, or floor number. But though the ad omits features, we would still call it a “description” be­ cause it accurately conveys the “recognizable features” of the apartment. However, even the most general description cannot refer to features that the thing being described does not have. The ad is only an accurate description if the apartment “described in” it has at least the five features listed. If the apartment only has four of the five listed features—there is no rooftop access, say, or the walk-in closet is not so much walk-in as shimmy-in—then the Craigslist ad no longer “describes” the apartment. Rather, it misdescribes it. So, too, with the statutes in this case. The federal de­ scription can be general as long as it is still accurate—that is, as long as the state law has at least all of the elements in the federal law. But there is no meaning of “describe” that allows the Court to say §44(i) “describes” the New York offense when the New York offense only has four of the five elements listed in Section 44(i) misde­ scribes the New York offense just as surely as the too- good-to-be-true Craigslist ad misdescribes the real-life apartment. C The structure of the INA confirms that conclusion and makes clear that we need not contort the ordinary, accepted meaning of the phrase “described in.” The INA has many overlapping provisions that assign carefully calibrated consequences to various types of criminal convictions. The Court thus need not interpret any provision—and certainly none of the aggravated felony provisions, among the harshest in the INA—as broadly as possible because the INA as a whole ensures that serious criminal conduct 6 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting is adequately captured. That overlapping structure is apparent throughout the INA. First, the aggravated felony list itself has multiple fail-safe provisions. Most serious offenses, for instance, will qualify as “crime[s] of violence for which the term of imprisonment [is] at least one year,” U.S. C. even if they are not covered by a more specific provision in the aggravated felony list. Had his crime been charged as a more serious arson and had he been punished by one year of imprisonment instead of one day, Luna might have qualified as an aggravated felon under that provision. See v. Holder, 714 F.3d 140, 145 (CA2 2013) (second-degree arson in New York is a “crime of violence”).1 —————— 1 Manyof the majority’s own examples of “the gravest” state offenses supposedly excluded from the aggravated felony list by Luna’s reading actually fall within these fail-safe provisions. Ante, 0. Many state arsons will qualify as “crime[s] of violence” under U.S. C. see, e.g., 42 F.3d 276, ; an even greater fraction of the most serious arsons will fall under that heading because States like New York have enacted gra- dated statutes under which more severe degrees of arson are crimes of violence, see 714 F.3d, 45. To take another of the majori­ ty’s examples, while a state conviction for demanding a ransom in a kidnaping is not “an offense described in [1 U.S. C. §75]” under a state conviction for kidnaping or conspiring to kidnap may qualify as a crime of violence under See United And even under the majority’s reading, a state-law conviction will only qualify as an aggravated felony if the “right state charge is filed.” Ante, 4, n. 10. For example, even on the majority’s reading, a state- court defendant who sells a child for purposes of child pornography is unlikely to be convicted of “an offense described in [1 U.S. C.] see That is because virtually no States have a statute corresponding to 1 U.S. C. with or without the interstate commerce element. (But see Fla. Stat. §47.0145 (2015).) Such a defendant may, however, be convicted of a state offense that qualifies as an aggravated felony for conspiring to commit sexual abuse of a minor under U.S. C. and 1101(a)(43)(A). Cite as: 57 U. S. (2016) 7 SOTOMAYOR, J., dissenting Second, other sections of the INA provide intertwining coverage for serious crimes. Some examples of provisions that encompass many offenses include those for the com­ mission of a “crime involving moral turpitude,” a firearms offense, or a controlled substance offense, all of which will render a noncitizen removable, even if he or she has not committed an aggravated felony. See (B)(i), (C); §§112(a)(2)(A)(i)–(ii). Cf. 4 (commenting on the breadth of the “crime involving moral turpitude” provision).2 And finally, in Luna’s case or anyone else’s, the Attor­ ney General can exercise her discretion to deny relief to a serious criminal whether or not that criminal has been convicted of an aggravated felony. See Carachuri- 560 U.S., at 51 (doubting that a narrow read­ ing of will have “any practical effect on polic­ ing our Nation’s borders”). To be sure, on Luna’s reading, some serious conduct may not be captured by the INA. But not nearly so much as the majority suggests. By contrast, once the aggra­ vated felony statute applies to a noncitizen, no provision in the INA—and virtually no act by the Attorney General— can prevent him or her from being removed. Looking for consistency in the aggravated felony provi­ sions of the INA is often a fool’s errand. See Kawashima, 565 U. S., at n. 2 (slip op., at 9, n. 2) (GINSBURG, J., dissenting) (noting the absurdity of making a tax misde­ —————— 2 Other crimes in the majority’s list of serious offenses, ante, 0–14, will be covered by these separate INA provisions. For example, the Board of Immigration Appeals has held that any child pornography offense is a “crime involving moral turpitude,” rendering a noncitizen removable in many cases. See 112(a)(2)(A)(i); In re Olquin-Rufino, 23 I. & N. Dec. 96 Any offense involving a gun would make a noncitizen deportable under one of the catchall provisions for buying, selling, or possessing a firearm in violation of “any law.” See LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting meanor, but not driving while drunk and causing serious bodily injury, an aggravated felony). But the structure of the INA gives the Court no reason to read the aggravated felony provisions as broadly as possible.3 That is why this Court has repeatedly cautioned against interpreting the aggravated felony section to sweep in offenses that—like many state arson convictions—may be neither aggravated nor felonies. See Carachuri-, ; Brief for National Association of Criminal Defense Law­ yers et al. as Amici Curiae 2– (collecting state misde­ meanor arson statutes). III The majority denies Luna the opportunity to present his case to the Attorney General based on two “contextual —————— 3 If the aggravated felony provisions were the primary mechanism for removing serious noncitizen criminals, we would expect any noncitizen convicted of an aggravated felony to face immigration consequences. In fact, the aggravated felony provisions only apply to noncitizens who are lawfully admitted or later paroled. Matter of Alyazji, 25 I. & N. Dec. 397, 399 Other noncitizens—such as undocumented immigrants, noncitizens applying for a visa, or some legal permanent residents returning after an extended stay abroad—cannot be removed based on the conviction of an aggravated felony; the Government must rely on the other provisions of the INA, including the statute’s other criminal provisions, to remove such noncitizens. See 112, 1227(a)(2)(A)(iii). Similarly, if the aggravated felony provision were the only way to ensure that the Attorney General exercised her discretion wisely, we would expect that discretion to be constrained as to all noncitizens who potentially pose a threat to the United States. In fact, the Attorney General is not prevented from granting cancellation of removal—the discretionary relief at issue in this case—to, for instance, a noncitizen who has not been convicted of a crime but is removable for having “received military-type training” from a terrorist organization. See 112(a)(3)(B)(i)(VIII), 12b(a). In short, it cannot be the case that the aggravated felony provisions were intended to be the statute’s sole mechanism for identifying the most dangerous noncitizens. Cite as: 57 U. S. (2016) 9 SOTOMAYOR, J., dissenting considerations,” ante, at 7, and an intuition about how the statute ought to work. None are sufficiently persuasive to overcome the most natural reading of the aggravated felony statute. A The majority first perceives a conflict between Luna’s reading of the INA and what it calls the “penultimate sentence” of the aggravated felony statute. The “penulti­ mate sentence” provides that an offense can be an aggra­ vated felony “whether in violation of Federal or State law” or “in violation of the law of a foreign country.” U.S. C. The majority claims that Luna’s reading of the INA would vitiate the quoted proviso. Ante, at –10. It is true that, on Luna’s reading, some of the aggra- vated felonies listed in the INA (including “an offense de­ scribed in” §44(i)) will have no state or foreign analog. But the proviso still applies to generic offenses, which constitute nearly half of the entries in the aggravated felony list. See, e.g., §(A), (G), (M)(i). And that already-large portion jumps to close to three-quarters of the offenses after counting those many listed federal statutes with no jurisdictional element. See, e.g., §(C), (E)(ii), (J). In fact, it applies to the vast majority of offenses adjudicated under the INA given that most serious crimes are also “crimes of violence.” See 4 And the majority must admit that its interpretation will also leave entries in the aggravated-felony section with no state or foreign analogs. For instance, it seems unlikely that the proviso contemplates state analogs for the aggra­ —————— 4 When the proviso was added to the INA in 1990, it would have ap­ plied to an even greater fraction of the aggravated felonies: At that time, the aggravated felony statute listed only five offenses, four of which would have had state analogs even on Luna’s reading. See 104 Stat. 504 (1990). 10 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting vated felony provisions regarding treason, levying war against the United States, or disclosing national defense information. See §(L)(i), (P). In other words, under Luna’s reading, the “penultimate sentence” applies to most, but not all, of the entries of the aggravated felony statute; under the majority’s reading, the “penultimate sentence” also applies to most, but not all, of the entries of the aggravated felony statute. The majority’s first “contextual consideration” thus supplies no reason to prefer one reading over the other. B Just as important, the majority suggests, is a “settled practice of distinguishing between substantive ele­ ments”—those that define “the evil Congress seeks to prevent”—and “jurisdictional element[s],” which merely “establis[h] legislative authority.” Ante, 5. The major­ ity admits that the Court does not distinguish between substantive and jurisdictional elements for many purposes, such as proof beyond a reasonable doubt and the right to a jury trial. ; see 536 U.S. 54, 606 (2002). But it nonetheless insists on a standard dis­ tinction so entrenched that Congress must have intended it to apply even absent any particular indication in the INA. None of the three examples that the majority proffers is evidence of such a strong norm. First, the majority in­ vokes our rules for interpreting criminal statutes. Ante, at 15–16. Whereas our general assumption is that a de- fendant must know each fact making his conduct illegal, courts generally hold that a criminal defendant need not know the facts that satisfy the jurisdictional element of a statute. But jurisdictional elements are not the only elements a defendant need not know. Under the “default rule,” ante, n. 12, for interpreting so-called “public welfare” Cite as: 57 U. S. (2016) 11 SOTOMAYOR, J., dissenting offenses, courts have held that a defendant need not know that the substance he possesses is a narcotic, that the device he possesses is unregistered, or that he reentered the United States after previously being deported. See 606–609, 611 and United ); United 50–509 ; United (CA1 200); United 11 F.3d 710, 715–717 (CA10 1997). But surely the majority would not suggest that if we agree with those holdings regarding mens rea, we must then ignore the “controlled substance” element of the drug trafficking aggravated felony, the “unregistered” element of the unregistered firearms aggravated felony, or the “following deportation” element of the illegal reentry aggravated felony. See U.S. C. §, (E)(iii), (M)(i), (O). So there is likewise no reason to believe that the “default rule” for assigning mens rea to jurisdictional elements is embedded in the INA. The majority next points to two of the many statutes that, like the INA, require comparing the elements of federal and state offenses. But in each case, it is the statute’s language and context, not some “settled practice,” ante, 5, that command the omission of the jurisdic- tional element. The majority’s first example, ante, 6–17, is the Assimilative Crimes Act, 1 U.S. C. a gap-filling statute that incorporates state criminal law into federal enclaves if the “act or omission” is not “made punishable by any enactment of Congress” but “would be punishable if committed or omitted within the jurisdiction of the State.” The Court held that, in identifying such a gap, courts should ignore “jurisdictional, or other technical,” differ­ ences between a state and federal statute. (199). But the way courts 12 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting match the elements of a state law to a federal analog under the Assimilative Crimes Act differs fundamentally from our INA inquiry. The basic question under the As­ similative Crimes Act is whether “federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue.” at 164. Under the Assimilative Crimes Act, the state statute is not compared to a single federal statute, but rather to a complex of federal statutes that roughly cover the same general conduct and “policies.” That statute thus has little to teach us about U.S. C. : In interpreting the Assimilative Crimes Act, every Member of the Court rejected the simple elements-matching approach that the Court generally employs to construe the aggra­ vated felony provisions of the INA. See 523 U.S., 2 (KENNEDY, J., dissenting) (allowing “slight differences” in definition between federal and state statute and using “same-elements inquiry” only as a “starting point”). The majority’s analogy to the federal three strikes stat­ ute, 1 U.S. C. ante, 7–1, is similarly unhelpful. That provision counts as a predicate “‘serious violent felony’” any “ ‘Federal or State offense wherever committed, consisting of ’ ” various crimes, including sev­ eral “ ‘as described in’ ” federal statutes. Ante, 7. (em­ phasis added). Though this Court has not construed the statute, the majority notes that courts of appeals disre­ gard the jurisdictional element of federal statutes in as­ sessing whether a state conviction is for a “serious violent felony.” Ante, 5–16. But nearly all of the statutes listed in contain place-based jurisdiction elements—the crime must take place “within the special maritime and territorial jurisdiction of the United States,” e.g., or within “the special aircraft jurisdiction of the United States,” 49 U.S. C. and so on. In the two cases cited by the majority, for instance, ante, 7, Courts of Appeals concluded that a state robbery offense Cite as: 57 U. S. (2016) 13 SOTOMAYOR, J., dissenting qualified as an offense “described in” the federal bank robbery statute even though the robbery did not take place in a bank. See United 132 F.3d 33, 37 (CA7 1997); United States v. Rosario-Delgado, 19 F.3d 1354, 1357 (CA11 1999). In that statute, it is the “wher­ ever committed,” not some loose construction of “described in,” that specifically instructs the courts that the location where a crime occurs does not matter. Moreover, in other statutes where Congress wants to exclude jurisdictional elements when comparing state and federal offenses, it ordinarily just says so. See, e.g., 1 U.S. C. (requiring detention of defendant pending trial if “the person has been convicted of a State or local offense that would have been an offense described in subsection (f )(1) of this section if a circum­ stance giving rise to Federal jurisdiction had existed”); 42 U.S. C. (II). Absent comparably clear language, the Court should not presume that the INA intended deportability to de­ pend on a not-so-“settled practice,” ante, 5, of occasion­ ally distinguishing between substantive and jurisdictional elements. C Finally, the majority suggests that it would be “peculiarly perverse,” ante, 0, to adopt Luna’s plain-text reading of the statute because it would draw a distinction among crimes based on a jurisdictional element that the majority assumes is wholly divorced from “the evil Congress seeks to prevent,” ante, 5. The jurisdictional element of a federal statute, the majority asserts, is as trivial as the perfunctory warning on a new electronic device: “[A] per­ son would say that she had followed the instructions for setting up an iPhone that are ‘described in’ the user’s manual, even if she in fact ignored the one” instructing 14 LUNA TORRES v. LYNCH SOTOMAYOR, J., dissenting that she “begin by ‘read[ing] important safety infor­ mation.’ ” Ante, at 7, n. 5; see also (comparing juris­ dictional element to a “detour” in a 3-week itinerary). For instance, the majority assumes that it would not be “plausible,” ante, 2, for Congress to have thought that interstate crimes are worse than wholly intrastate crimes. Perhaps. But when faced with an offense that, like arson, admits of a range of conduct, from the minor to the seri­ ous, Congress could plausibly have concluded that arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes and counted only the former as aggravated felonies. See, e.g., Klein et al., Why Federal Prosecutors Charge: A Comparison of Fed­ eral and New York State Arson and Robbery Filings, – 2010, 51 Houston L. Rev. 131, 1406, 1416–1419 (2014) (finding that arsons prosecuted federally involve more property damage and more injury than arsons prosecuted under state law). That is because, far from being token, “conventional jurisdictional elements” serve to narrow the kinds of crimes that can be prosecuted, not just to specify the sovereign that can do the prosecuting. Take the federal statute at issue in this case. Section 44(i) requires that the property destroyed be “used in interstate com­ merce.” The Court has held that “standard, jurisdictional” element, ante, at 21, demands the property’s “active em­ ployment for commercial purposes, and not merely a pas­ sive, passing, or past connection to commerce.” Jones v. United States, 5 U.S. 4, 55 As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under §44(i) because the house was not “active[ly] used” in interstate commerce. at 51. Surely, however, a New York prosecutor could have secured a conviction under N. Y. Penal Law Ann. had the same crime been prosecuted in state, rather than Cite as: 57 U. S. (2016) 15 SOTOMAYOR, J., dissenting federal, court. The difference between an offense under N. Y. Penal Law Ann. and an offense under 1 U.S. C. §44(i) is thus more than a technical consideration about which authority chooses to prosecute. It is a difference that goes to the magnitude and nature of the “evil,” ante, 5, itself. * * * On the majority’s reading, long-time legal permanent residents with convictions for minor state offenses are foreclosed from even appealing to the mercy of the Attor­ ney General. Against our standard method for comparing statutes and the text and structure of the INA, the majority stacks a supposed superfluity, a not-so-well-settled prac­ tice, and its conviction that jurisdictional elements are mere technicalities. But an element is an element, and I would not so lightly strip a federal statute of one. I respectfully dissent

Justice White

majority

Palmore v. United States

https://www.courtlistener.com/opinion/108767/palmore-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/108767/

1972-099

Aside from an initial question of our appellate jurisdiction under 28 U.S. C. § 1257 (2), this case requires us to decide whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. III of the Constitution. We hold that under its Art. I, § 8, cl. 17, power to legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary. In this respect, the position of the District of Columbia defendant is similar to that of the citizen of *391 any of the 50 States when charged with violation of a state criminal law: Neither has a federal constitutional right to be tried before judges with tenure and salary guarantees. I The facts are uncomplicated. In January 1971, two officers of the District of Columbia Metropolitan Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was then indicated, the officer stopped the vehicle for a spot-check of the driver's license and car-rental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment of the car and explained why the car appeared to be, but was not, overdue. During this time, one of the officers observed the hammer mechanism of a gun protruding from under the armrest in the front seat of the vehicle. Palmore was arrested and later charged with the felony of carrying an unregistered pistol in the District of Columbia after having been convicted of a felony, in violation of the District of Columbia Code, § 22-3204 (1967).[1] He was tried and found guilty in the Superior Court of the District of Columbia. *392 Under Title I of the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473 (Reorganization Act),[2] the judges of the Superior *393 Court are appointed by the President and serve for terms of 15 years. D. C. Code Ann. §§ 11-1501 (a), 11-1502 (Supp. V, 1972).[3] Palmore moved to dismiss the indictment against him, urging that only a court "ordain[ed] and establish[ed]" in accordance with Art. III of the United States Constitution could constitutionally try him for a felony prosecution under the District of Columbia Code. He also moved to suppress the pistol as the fruit of an illegal search and seizure. The motions were denied in the Superior Court, and Palmore was convicted. The District of Columbia Court of Appeals affirmed, concluding that under the plenary power to legislate for the District of Columbia, conferred by Art. I, § 8, cl. 17, of the Constitution, Congress had "constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal cases within the District." 290 A.2d 573, 576-577 (1972). Palmore filed a notice of appeal with the District of *394 Columbia Court of Appeals and his jurisdictional statement here, purporting to perfect an appeal under 28 U.S. C. § 1257 (2). We postponed further consideration of our jurisdiction to review this case by way of appeal to the hearing on the merits. 409 U.S. 840 (1972). II Title 28 U.S. C. § 1257[4] specifies the circumstances under which the final judgments of the highest court of a State may be reviewed in this Court by way of appeal or writ of certiorari. As amended in 1970 by § 172 (a) (1) of the Reorganization Act, 84 Stat. 590, the term "highest court of a State" as used in § 1257 includes the District of Columbia Court of Appeals. Appeal lies from such courts only where a statute of the United States is struck down, 28 U.S. C. § 1257 (1), or where a statute of a State is sustained against federal constitutional attack, id., § 1257 (2). Because the statute at *395 issue was upheld in this case, an appeal to this Court from that judgment lies only if the statute was a "statute of any state" within the meaning of § 1257 (2). Palmore insists that it is, but we cannot agree. The 1970 amendment to § 1257 plainly provided that the District of Columbia Court of Appeals should be treated as the "highest court of a State," but nowhere in § 1257, or elsewhere, has Congress provided that the words "statute of any state," as used in § 1257 (2), are to include the provisions of the District of Columbia Code. A reference to "state statutes" would ordinarily not include provisions of the District of Columbia Code, which was enacted, not by a state legislature, but by Congress, and which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct from the States, Hepburn v. Ellzey, 2 Cranch 445 (1805); cf. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Nor does it follow from the decision to treat the District of Columbia Court of Appeals as a state court that the District Code was to be considered a state statute for the purposes of § 1257. We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said so expressly, and not left the matter to mere implication.[5] *396 Jurisdictional statutes are to be construed "with precision and with fidelity to the terms by which Congress has expressed its wishes," Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968); and we are particularly prone to accord "strict construction of statutes authorizing appeals" to this Court. Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n. 1 (1970). We will not, therefore, hold that Congress intended to treat the District of Columbia Code as a state statute for the purposes of § 1257 (2). Cf. Farnsworth v. Montana, 129 U.S. 104, 112-114 (1889). Palmore relies on Balzac v. Porto Rico, 258 U.S. 298 (1922), where an enactment of the territorial legislature of Puerto Rico was held to be a statute of a State within the meaning of the then-applicable statutory provisions governing appeals to this Court. That result has been codified in 28 U.S. C. § 1258; but, even so, the Balzac rationale was severely undermined in Fornaris, where we held that a statute passed by the legislature of Puerto Rico is not "a State statute" within the meaning of 28 U.S. C. § 1254 (2), and that it should not be treated as such in the absence of more definitive guidance from Congress. We conclude that we do not have jurisdiction of the appeal filed in this case. Palmore presents federal constitutional issues, however, that are reviewable by writ of certiorari under § 1257 (3); and treating the jurisdictional statement as a petition for writ of certiorari, cf. 28 U.S. C. § 2103, we grant the petition limited to the question of whether Palmore was entitled to be tried by *397 a court ordained and established in accordance with Art. III, § 1, of the Constitution.[6] It is to this issue that we now turn. III Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power "[t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress "may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States." Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899). This has been the characteristic view in this Court of congressional powers with respect to the District.[7] It is apparent that the power of Congress *398 under Clause 17 permits it to legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it under Art. I, § 8. See Gibbons v. District of Columbia, 116 U.S. 404, 408 (1886). Pursuant to its Clause 17 authority, Congress has from time to time enacted laws that compose the District of Columbia Code. The 1970 Reorganization Act amended the Code by creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, the courts being expressly "established pursuant to article I of the Constitution." D. C. Code Ann. § 11-101 (2) (Supp. V, 1972). See n. 2, supra. The Superior Court, among other things, was vested with jurisdiction to hear criminal cases involving alleged violations of the criminal laws applicable only to the District of Columbia, id., § 11-923; the District of Columbia Court of Appeals, with jurisdiction to hear appeals in such cases. Id., § 11-721. At the same time, Congress exercised its powers under Art. I, § 8, cl. 9, and Art. III to redefine the jurisdiction of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. Id., §§ 11-301, 11-501, and 11-502. As the Committee on the District of Columbia said, H. R. Rep. No. 91-907, p. 44: "This title makes clear (section 11-101) that the District of Columbia Courts (the District of Columbia Court of Appeals, and the Superior Court of the District of Columbia) are Article I courts, created pursuant to Article I, section 8, clause 17 of the United States Constitution, and not Article III courts. The authority under which the local courts are established has not been statutorily provided in prior law; the Supreme Court of the United States *399 has not declared the local system to be either Article I or Article III courts, decisions having indicated that the District of Columbia courts are, in this respect, both fish and fowl. This expression of the intent of the Congress clarifies the status of the local courts." It was under the judicial power conferred on the Superior Court by the 1970 Reorganization Act that Palmore was convicted of violation of § 22-3204 of the District of Columbia Code (1967). The conviction was clearly within the authority granted Congress by Art. I, § 8, cl. 17, unless, as Palmore contends, Art. III of the Constitution requires that prosecutions for District of Columbia felonies must be presided over by a judge having the tenure and salary protections provided by Art. III.[8]*400 Palmore's argument is straightforward: Art. III vests the "judicial Power" of the United States in courts with judges holding office during good behavior and whose salary cannot be diminished; the "judicial Power" that these courts are to exercise "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . ."; the District of Columbia Code, having been enacted by Congress, is a law of the United States; this prosecution for violation of § 22-3204 of the Code is therefore a case arising under the laws of the United States, involves an exercise of the "judicial Power" of the United States, and must therefore be tried by an Art. III judge. This position ultimately rests on the proposition that an Art. III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Art. III. In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice. Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested "in such inferior Courts as the Congress may from time to time ordain and establish." The decision with *401 respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide cases within the judicial power of the United States, including those criminal cases arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art. III. "[T]he judicial power of the United States . . . is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) . . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good." Cary v. Curtis, 3 How. 236, 245 (1845).[9] Congress plainly understood this, for until 1875 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal cases not involving the required jurisdictional amount, and for the most part retained *402 concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts. It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly, has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545, 551-553, 570-572 (1925); F. Frankfurter & J. Landis, The Business of the Supreme Court 293 (1927); Note, Utilization of State Courts to Enforce Federal Penal and Criminal Statutes: Development in Judicial Federalism, 60 Harv. L. Rev. 966 (1947). More recently, this Court unanimously held that Congress could constitutionally require state courts to hear and decide Emergency Price Control Act cases involving the enforcement of federal penal laws; the fact "that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal, cannot be accepted as a `valid excuse.' " Testa v. Katt, 330 U.S. 386, 392 (1947). Although recognizing the contrary sentiments expressed in Prigg v. Pennsylvania, 16 Pet. 539, 615-616 (1842), and other cases, the sense of the Testa opinion was that it merely reflected longstanding constitutional decision and policy represented by such cases as Claflin v. Houseman, 93 U.S. 130 (1876), and Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1 (1912). It is also true that throughout our history, Congress has exercised its power under Art. IV to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" by creating *403 territorial courts and manning them with judges appointed for a term of years. These courts have not been deemed subject to the strictures of Art. III, even though they characteristically enforced not only the civil and criminal laws of Congress applicable throughout the United States, but also the laws applicable only within the boundaries of the particular territory. Speaking for a unanimous Court in American Ins. Co. v. Canter, 1 Pet. 511 (1828), Mr. Chief Justice Marshall held that the territorial courts of Florida, although not Art. III courts, could hear and determine cases governed by the admiralty and maritime law that ordinarily could be heard only by Art. III judges. "[T]he same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government." Id., at 546. This has been the consistent view of this Court.[10] Territorial courts, therefore, have regularly tried criminal cases arising under the general laws of Congress,[11] as well as those brought under territorial laws.[12] *404 There is another context in which criminal cases arising under federal statutes are tried, and defendants convicted, in non-Art. III courts. Under its Art. I, § 8, cl. 14, power "[t]o make Rules for the Government and Regulation of the land and naval Forces," Congress has declared certain behavior by members of the Armed Forces to be criminal and provided for the trial of such cases by court-martial proceedings in the military mode, not by courts ordained and established under Art. III. Within their proper sphere, courts-martial are constitutional instruments to carry out congressional and executive will. Dynes v. Hoover, 20 How. 65, 79, 82 (1857). The "exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply," O'Callahan v. Parker, 395 U.S. 258, 261 (1969); and "the Constitution does not provide life tenure for those performing judicial functions in military trials," Toth v. Quarles, 350 U.S. 11, 17 (1955). "The same confluence of practical considerations that dictated the result in [American Ins. Co. v. Canter, supra], has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure," Glidden Co. v. Zdanok, 370 U.S. 530, 547 (1962), such as the Court of Private Land Claims, United States v. Coe, 155 U.S. 76, 85-86 (1894); the Choctaw and Chickasaw Citizenship Court, Stephens v. Cherokee Nation, 174 U.S. 445 (1899); Ex parte Joins, 191 U.S. 93 (1903); Wallace v. Adams, 204 U.S. 415 (1907); courts created in unincorporated districts outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266-267 (1901); Balzac v. Porto Rico, 258 U. S., at 312-313, and the Consular Courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464-465, 480 (1891). *405 IV Whatever may be true in other instances, however, it is strongly argued that O'Donoghue v. United States, 289 U.S. 516 (1933), constrains us to hold that all of the courts of the District of Columbia must be deemed Art. III courts and that the judges presiding over them must be appointed to serve during their good behavior in accordance with the requirements of Art. III. O'Donoghue involved the question whether the judges of the District of Columbia's Supreme Court and Court of Appeals were constitutionally protected from having their salaries reduced by an Act of Congress. This Court, over three dissents and contrary to extensive prior dicta, see Ex parte Bakelite Corp., 279 U.S. 438, 450 (1929); Butterworth v. Hoe, 112 U.S. 50 (1884); Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464 (1930), held that the two courts under consideration were constitutional courts exercising the judicial power of the United States and that the judges in question were not subject to the salary reduction legislation as they would have been had they been judges of legislative courts. We cannot agree that O'Donoghue governs this case.[13] The District of Columbia courts there involved, the *406 Supreme Court and the Court of Appeals, had authority not only in the District, but also over all those controversies, civil and criminal, arising under the Constitution and the statutes of the United States and having nationwide application. These courts, as this Court noted in its opinion, were "of equal rank and power with those of other inferior courts of the federal system . . . ." O'Donoghue, supra, at 534. Relying heavily on congressional intent, the Court considered that Congress, by consistently providing the judges of these courts with lifetime tenure, had indicated a "congressional practice from the beginning [which] recognize[d] a complete parallelism between the courts of the District [of Columbia] and the district and circuit courts of appeals of the United States." Id., at 549. Moreover, these courts, constituted as they were, and being closer to the legislative department, "exercise a more extensive jurisdiction in cases affecting the operations of the general government and its various departments," id., at 535, and were the only courts within the District in which District inhabitants could exercise their "right to have their cases arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III." Id., at 540. The case before us is a far cry from O'Donoghue. Here Congress has expressly created two systems of courts in the District. One of them is made up of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia *407 Circuit, which are constitutional courts manned by Art. III judges to which the citizens of the District must or may resort for consideration of those constitutional and statutory matters of general concern which so moved the Court in O'Donoghue. The other system is made up of strictly local courts, the Superior Court and the District of Columbia Court of Appeals. These courts were expressly created pursuant to the plenary Art. I power to legislate for the District of Columbia, D. C. Code Ann. § 11-101 (2) (Supp. V, 1972), and to exercise the "powers of . . . a State government in all cases where legislation is possible." Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889). The O'Donoghue Court had before it District of Columbia courts in which the consideration of "purely local affairs [was] obviously subordinate and incidental." O'Donoghue, supra, at 539. Here, on the other hand, we have courts the focus of whose work is primarily upon cases arising under the District of Columbia Code and to other matters of strictly local concern. They handle criminal cases only under statutes that are applicable to the District of Columbia alone. O'Donoghue did not concern itself with courts like these, and it is not controlling here. V It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction. Rather, both Congress and this Court have recognized that state courts are appropriate forums in which federal questions and federal crimes may at times be tried; and that the *408 requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment. Here, Congress reorganized the court system in the District of Columbia and established one set of courts in the District with Art. III characteristics and devoted to matters of national concern. It also created a wholly separate court system designed primarily to concern itself with local law and to serve as a local court system for a large metropolitan area. From its own studies, Congress had concluded that there was a crisis in the judicial system of the District of Columbia, that case loads had become unmanageable, and that neither those matters of national concern nor those of strictly local cognizance were being promptly tried and disposed of by the existing court system. See, e. g., 115 Cong. Rec. 25538 (1969); 116 Cong. Rec. 8091-8092 (1970).[14] The remedy in part, was to relieve the regular Art. III courts, that is, the United States District Court for the District of Columbia and the United States *409 Court of Appeals for the District of Columbia Circuit, from the smothering responsibility for the great mass of litigation, civil and criminal, that inevitably characterizes the court system in a major city and to confine the work of those courts to that which, for the most part, they were designed to do, namely, to try cases arising under the Constitution and the nationally applicable laws of Congress. The other part of the remedy, equally essential, was to establish an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction. S. Rep. No. 91-405, pp. 1-3, 5, 18; H. R. Rep. No. 91-907, pp. 23-24, 33. Furthermore, Congress, after careful consideration, determined that it preferred, and had the power to utilize, a local court system staffed by judges without lifetime tenure. S. Rep. No. 91-405, supra, at 17-18; H. R. Rep. No. 91-907, supra, at 44. Congress made a deliberate choice to create judgeships with terms of 15 years, D. C. Code Ann. § 11-1502 (Supp. V, 1972), and to subject judges in those positions to removal or suspension by a judicial commission under certain established circumstances. Id., §§ 11-1502, 11-1521 et seq. It was thought that such a system would be more workable and efficient in administering and discharging the work of a multifaceted metropolitan court system. See S. Rep. No. 91-405, supra, at 8-11; H. R. Rep. No. 91-907, supra, at 35-39. In providing for fixed terms of office, Congress was cognizant of the fact that "virtually no State has provided" for tenure during good behavior, S. Rep. No. 91-405, supra, at 8, see H. R. Rep. No. 91-907, supra, *410 at 38, the District of Columbia Court of Appeals noting that 46 of the 50 States have not provided life tenure for trial judges who hear felony cases, 290 A.2d, at 578 n. 12; and the provisions of the Act, with respect to court administration and to judicial removal and suspension, were considered by some as a model for the States. 115 Cong. Rec. 25538 (1969). See Hearings on H. R. 13689 and 12854 before Subcommittee No. 1 of the House Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 1, pp. 69, 71 (1969). We do not discount the importance attached to the tenure and salary provisions of Art. III, but we conclude that Congress was not required to provide an Art. III court for the trial of criminal cases arising under its laws applicable only within the District of Columbia. Palmore's trial in the Superior Court was authorized by Congress' Art. I power to legislate for the District in all cases whatsoever. Palmore was no more disadvantaged and no more entitled to an Art. III judge than any other citizen of any of the 50 States who is tried for a strictly local crime. Nor did his trial by a nontenured judge deprive him of due process of law under the Fifth Amendment any more than the trial of the citizens of the various States for local crimes by judges without protection as to tenure deprives them of due process of law under the Fourteenth Amendment. The judgment of the District of Columbia Court of Appeals is affirmed. So ordered. MR.

Aside from an initial question of our appellate jurisdiction under 8 U.S. C. (), this case requires us to decide whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. III of the Constitution. We hold that under its Art. I, 8, cl. power to legislate for the District of Columbia, Congress may provide for trying local criminal before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary. In this respect, the position of the District of Columbia defendant is similar to that of the citizen of *391 any of the 0 States when charged with violation of a state criminal law: Neither has a federal constitutional right to be tried before judges with tenure and salary guarantees. I The facts are uncomplicated. In January 1971, two officers of the District of Columbia Metropolitan Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was then indicated, the officer stopped the vehicle for a spot-check of the driver's license and car-rental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment of the car and explained why the car appeared to be, but was not, overdue. During this time, one of the officers observed the hammer mechanism of a gun protruding from under the armrest in the front seat of the vehicle. Palmore was arrested and later charged with the felony of carrying an unregistered pistol in the District of Columbia after having been convicted of a felony, in violation of the District of Columbia Code, -304 (1967).[1] He was tried and found guilty in the Superior Court of the District of Columbia. *39 Under Title I of the District of Columbia Court Reform and Criminal Procedure Act of 1970,[] the judges of the Superior *393 Court are appointed by the President and serve for terms of 1 years. D. C. Code Ann. 11-101 (a), 11-10[3] Palmore moved to dismiss the indictment against him, urging that only a court "ordain[ed] and establish[ed]" in accordance with Art. III of the United States Constitution could constitutionally try him for a felony prosecution under the District of Columbia Code. He also moved to suppress the pistol as the fruit of an illegal search and seizure. The motions were denied in the Superior Court, and Palmore was convicted. The District of Columbia Court of Appeals affirmed, concluding that under the plenary power to legislate for the District of Columbia, conferred by Art. I, 8, cl. of the Constitution, Congress had "constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal within the District." Palmore filed a notice of appeal with the District of *394 Columbia Court of Appeals and his jurisdictional statement here, purporting to perfect an appeal under 8 U.S. C. (). We postponed further consideration of our jurisdiction to review this case by way of appeal to the hearing on the merits. II Title 8 U.S. C. [4] specifies the circumstances under which the final judgments of the highest court of a State may be reviewed in this Court by way of appeal or writ of certiorari. As amended in 1970 by (a) (1) of the Reorganization Act, the term "highest court of a State" as used in includes the District of Columbia Court of Appeals. Appeal lies from such courts only where a statute of the United States is struck down, 8 U.S. C. (1), or where a statute of a State is sustained against federal constitutional attack, (). Because the statute at *39 issue was upheld in this case, an appeal to this Court from that judgment lies only if the statute was a "statute of any state" within the meaning of (). Palmore insists that it is, but we cannot agree. The 1970 amendment to plainly provided that the District of Columbia Court of Appeals should be treated as the "highest court of a State," but nowhere in or elsewhere, has Congress provided that the words "statute of any state," as used in (), are to include the provisions of the District of Columbia Code. A reference to "state statutes" would ordinarily not include provisions of the District of Columbia Code, which was enacted, not by a state legislature, but by Congress, and which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct from the States, ; cf. National Mutual Ins. Nor does it follow from the decision to treat the District of Columbia Court of Appeals as a state court that the District Code was to be considered a state statute for the purposes of We are entitled to assume that in amending Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of it would have said so expressly, and not left the matter to mere implication.[] *396 Jurisdictional statutes are to be construed "with precision and with fidelity to the terms by which Congress has expressed its wishes," Cheng Fan ; and we are particularly prone to accord "strict construction of statutes authorizing appeals" to this Court. We will not, therefore, hold that Congress intended to treat the District of Columbia Code as a state statute for the purposes of (). Cf. Palmore relies on where an enactment of the territorial legislature of Puerto was held to be a statute of a State within the meaning of the then-applicable statutory provisions governing appeals to this Court. That result has been codified in 8 U.S. C. 18; but, even so, the Balzac rationale was severely undermined in Fornaris, where we held that a statute passed by the legislature of Puerto is not "a State statute" within the meaning of 8 U.S. C. 14 (), and that it should not be treated as such in the absence of more definitive guidance from Congress. We conclude that we do not have jurisdiction of the appeal filed in this case. Palmore presents federal constitutional issues, however, that are reviewable by writ of certiorari under (3); and treating the jurisdictional statement as a petition for writ of certiorari, cf. 8 U.S. C. 103, we grant the petition limited to the question of whether Palmore was entitled to be tried by *397 a court ordained and established in accordance with Art. III, 1, of the Constitution.[6] It is to this issue that we now turn. III Art. I, 8, cl. of the Constitution provides that Congress shall have power "[t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress "may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States." Capital Traction This has been the characteristic view in this Court of congressional powers with respect to the District.[7] It is apparent that the power of Congress *398 under Clause permits it to legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it under Art. I, 8. See Pursuant to its Clause authority, Congress has from time to time enacted laws that compose the District of Columbia Code. The 1970 Reorganization Act amended the Code by creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, the courts being expressly "established pursuant to article I of the Constitution." D. C. Code Ann. 11-101 () See n. The Superior Court, among other things, was vested with jurisdiction to hear criminal involving alleged violations of the criminal laws applicable only to the District of Columbia, 11-93; the District of Columbia Court of Appeals, with jurisdiction to hear appeals in such 11-71. At the same time, Congress exercised its powers under Art. I, 8, cl. 9, and Art. III to redefine the jurisdiction of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. 11-301, 11-01, and 11-0. As the Committee on the District of Columbia said, H. R. Rep. No. p. 44: "This title makes clear (section 11-101) that the District of Columbia Courts (the District of Columbia Court of Appeals, and the Superior Court of the District of Columbia) are Article I courts, created pursuant to Article I, section 8, clause of the United States Constitution, and not Article III courts. The authority under which the local courts are established has not been statutorily provided in prior law; the Supreme Court of the United States *399 has not declared the local system to be either Article I or Article III courts, decisions having indicated that the District of Columbia courts are, in this respect, both fish and fowl. This expression of the intent of the Congress clarifies the status of the local courts." It was under the judicial power conferred on the Superior Court by the 1970 Reorganization Act that Palmore was convicted of violation of -304 of the District of Columbia Code (1967). The conviction was clearly within the authority granted Congress by Art. I, 8, cl. unless, as Palmore contends, Art. III of the Constitution requires that prosecutions for District of Columbia felonies must be presided over by a judge having the tenure and salary protections provided by Art. III.[8]*400 Palmore's argument is straightforward: Art. III vests the "judicial Power" of the United States in courts with judges holding office during good behavior and whose salary cannot be diminished; the "judicial Power" that these courts are to exercise "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"; the District of Columbia Code, having been enacted by Congress, is a law of the United States; this prosecution for violation of -304 of the Code is therefore a case arising under the laws of the United States, involves an exercise of the "judicial Power" of the United States, and must therefore be tried by an Art. III judge. This position ultimately rests on the proposition that an Art. III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Art. III. In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice. Article III describes the judicial power as extending to all among others, arising under the laws of the United States; but, aside from this Court, the power is vested "in such inferior Courts as the Congress may from time to time ordain and establish." The decision with *401 respect to inferior federal courts, as well as the task of defining their jurisdiction, was left to the discretion of Congress. That body was not constitutionally required to create inferior Art. III courts to hear and decide within the judicial power of the United States, including those criminal arising under the laws of the United States. Nor, if inferior federal courts were created, was it required to invest them with all the jurisdiction it was authorized to bestow under Art. III. "[T]he judicial power of the United States is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good." 3 How. 36, 4 (184).[9] Congress plainly understood this, for until 187 Congress refrained from providing the lower federal courts with general federal-question jurisdiction. Until that time, the state courts provided the only forum for vindicating many important federal claims. Even then, with exceptions, the state courts remained the sole forum for the trial of federal not involving the required jurisdictional amount, and for the most part retained *40 concurrent jurisdiction of federal claims properly within the jurisdiction of the lower federal courts. It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly, has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 4, 1-3, 70-7 (19); F. Frankfurter & J. Landis, The Business of the Supreme Court 93 (197); Note, Utilization of State Courts to Enforce Federal Penal and Criminal Statutes: Development in Judicial Federalism, More recently, this Court unanimously held that Congress could constitutionally require state courts to hear and decide Emergency Price Control Act involving the enforcement of federal penal laws; the fact "that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal, cannot be accepted as a `valid excuse.' " 39 Although recognizing the contrary sentiments expressed in 16 Pet. 39, 61-616 (184), and other the sense of the Testa opinion was that it merely reflected longstanding constitutional decision and policy represented by such as and 3 U.S. 1 (191). It is also true that throughout our history, Congress has exercised its power under Art. IV to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" by creating *403 territorial courts and manning them with judges appointed for a term of years. These courts have not been deemed subject to the strictures of Art. III, even though they characteristically enforced not only the civil and criminal laws of Congress applicable throughout the United States, but also the laws applicable only within the boundaries of the particular territory. Speaking for a unanimous Court in American Ins. 1 Pet. 11 (188), Mr. Chief Justice Marshall held that the territorial courts of Florida, although not Art. III courts, could hear and determine governed by the admiralty and maritime law that ordinarily could be heard only by Art. III judges. "[T]he same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government." at 46. This has been the consistent view of this Court.[10] Territorial courts, therefore, have regularly tried criminal arising under the general laws of Congress,[11] as well as those brought under territorial laws.[1] *404 There is another context in which criminal arising under federal statutes are tried, and defendants convicted, in non-Art. III courts. Under its Art. I, 8, cl. 14, power "[t]o make Rules for the Government and Regulation of the land and naval Forces," Congress has declared certain behavior by members of the Armed Forces to be criminal and provided for the trial of such by court-martial proceedings in the military mode, not by courts ordained and established under Art. III. Within their proper sphere, courts-martial are constitutional instruments to carry out congressional and executive will. 0 How. 6, 79, 8 (187). The "exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply," 39 U.S. 8, 61 ; and "the Constitution does not provide life tenure for those performing judicial functions in military trials," 30 U.S. 11, (19). "The same confluence of practical considerations that dictated the result in [American Ins. has governed the decision in later sanctioning the creation of other courts with judges of limited tenure," Glidden 370 U.S. 30, 47 (196), such as the Court of Private Land Claims, United 1 U.S. 76, 8-86 ; the Choctaw and Chickasaw Citizenship Court, 4 U.S. 44 ; Ex parte Joins, ; 04 U.S. 41 ; courts created in unincorporated districts outside the mainland, 18 U.S. 44, 66-67 ; 8 U. S., at 31-313, and the Consular Courts established by concessions from foreign countries, In re Ross, 140 U.S. 43, 464-46, 480 *40 IV Whatever may be true in other instances, however, it is strongly argued that 89 U.S. 16 constrains us to hold that all of the courts of the District of Columbia must be deemed Art. III courts and that the judges presiding over them must be appointed to serve during their good behavior in accordance with the requirements of Art. III. O' involved the question whether the judges of the District of Columbia's Supreme Court and Court of Appeals were constitutionally protected from having their salaries reduced by an Act of Congress. This Court, over three dissents and contrary to extensive prior dicta, see Ex parte Bakelite Corp., 79 U.S. 438, 40 (199); 11 U.S. 0 ; 61 U.S. 48 (193); Federal Radio 81 U.S. 464 held that the two courts under consideration were constitutional courts exercising the judicial power of the United States and that the judges in question were not subject to the salary reduction legislation as they would have been had they been judges of legislative courts. We cannot agree that O' governs this case.[13] The District of Columbia courts there involved, the *406 Supreme Court and the Court of Appeals, had authority not only in the District, but also over all those controversies, civil and criminal, arising under the Constitution and the statutes of the United States and having nationwide application. These courts, as this Court noted in its opinion, were "of equal rank and power with those of other inferior courts of the federal system" O', at 34. Relying heavily on congressional intent, the Court considered that Congress, by consistently providing the judges of these courts with lifetime tenure, had indicated a "congressional practice from the beginning [which] recognize[d] a complete parallelism between the courts of the District [of Columbia] and the district and circuit courts of appeals of the United States." at 49. Moreover, these courts, constituted as they were, and being closer to the legislative department, "exercise a more extensive jurisdiction in affecting the operations of the general government and its various departments," at 3, and were the only courts within the District in which District inhabitants could exercise their "right to have their arising under the Constitution heard and determined by federal courts created under, and vested with the judicial power conferred by, Art. III." at 40. The case before us is a far cry from O'. Here Congress has expressly created two systems of courts in the District. One of them is made up of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia *407 Circuit, which are constitutional courts manned by Art. III judges to which the citizens of the District must or may resort for consideration of those constitutional and statutory matters of general concern which so moved the Court in O'. The other system is made up of strictly local courts, the Superior Court and the District of Columbia Court of Appeals. These courts were expressly created pursuant to the plenary Art. I power to legislate for the District of Columbia, D. C. Code Ann. 11-101 () and to exercise the "powers of a State government in all where legislation is possible." 19 U.S. 141, The O' Court had before it District of Columbia courts in which the consideration of "purely local affairs [was] obviously subordinate and incidental." O', at 39. Here, on the other hand, we have courts the focus of whose work is primarily upon arising under the District of Columbia Code and to other matters of strictly local concern. They handle criminal only under statutes that are applicable to the District of Columbia alone. O' did not concern itself with courts like these, and it is not controlling here. V It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction. Rather, both Congress and this Court have recognized that state courts are appropriate forums in which federal questions and federal crimes may at times be tried; and that the * requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment. Here, Congress reorganized the court system in the District of Columbia and established one set of courts in the District with Art. III characteristics and devoted to matters of national concern. It also created a wholly separate court system designed primarily to concern itself with local law and to serve as a local court system for a large metropolitan area. From its own studies, Congress had concluded that there was a crisis in the judicial system of the District of Columbia, that case loads had become unmanageable, and that neither those matters of national concern nor those of strictly local cognizance were being promptly tried and disposed of by the existing court system. See, e. g., 11 Cong. Rec. 38 ; 116 Cong. Rec. 8091-809[14] The remedy in part, was to relieve the regular Art. III courts, that is, the United States District Court for the District of Columbia and the United States *409 Court of Appeals for the District of Columbia Circuit, from the smothering responsibility for the great mass of litigation, civil and criminal, that inevitably characterizes the court system in a major city and to confine the work of those courts to that which, for the most part, they were designed to do, namely, to try arising under the Constitution and the nationally applicable laws of Congress. The other part of the remedy, equally essential, was to establish an entirely new court system with functions essentially similar to those of the local courts found in the 0 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction. S. Rep. No. 91-40, pp. 1-3, 18; H. R. Rep. No. pp. 3-4, 33. Furthermore, Congress, after careful consideration, determined that it preferred, and had the power to utilize, a local court system staffed by judges without lifetime tenure. S. Rep. No. 91-40, at -18; H. R. Rep. No. Congress made a deliberate choice to create judgeships with terms of 1 years, D. C. Code Ann. 11-10 and to subject judges in those positions to removal or suspension by a judicial commission under certain established circumstances. 11-10, 11-11 et seq. It was thought that such a system would be more workable and efficient in administering and discharging the work of a multifaceted metropolitan court system. See S. Rep. No. 91-40, ; H. R. Rep. No. at 3-39. In providing for fixed terms of office, Congress was cognizant of the fact that "virtually no State has provided" for tenure during good behavior, S. Rep. No. 91-40, see H. R. Rep. No. *410 at 38, the District of Columbia Court of Appeals noting that 46 of the 0 States have not provided life tenure for trial judges who hear felony 90 A.d, at 78 n. 1; and the provisions of the Act, with respect to court administration and to judicial removal and suspension, were considered by some as a model for the States. 11 Cong. Rec. 38 See Hearings on H. R. 13689 and 184 before Subcommittee No. 1 of the House Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 1, pp. 69, 71 We do not discount the importance attached to the tenure and salary provisions of Art. III, but we conclude that Congress was not required to provide an Art. III court for the trial of criminal arising under its laws applicable only within the District of Columbia. Palmore's trial in the Superior Court was authorized by Congress' Art. I power to legislate for the District in all whatsoever. Palmore was no more disadvantaged and no more entitled to an Art. III judge than any other citizen of any of the 0 States who is tried for a strictly local crime. Nor did his trial by a nontenured judge deprive him of due process of law under the Fifth Amendment any more than the trial of the citizens of the various States for local crimes by judges without protection as to tenure deprives them of due process of law under the Fourteenth Amendment. The judgment of the District of Columbia Court of Appeals is affirmed. So ordered. MR.

Justice Rehnquist

majority

Florida v. Wells

https://www.courtlistener.com/opinion/112412/florida-v-wells/

https://www.courtlistener.com/api/rest/v3/clusters/112412/

1989-063

A Florida Highway Patrol trooper stopped respondent Wells for speeding. After smelling alcohol on Wells' breath, the trooper arrested Wells for driving under the influence. Wells then agreed to accompany the trooper to the station to take a breathalyzer test. The trooper informed Wells that the car would be impounded and obtained Wells' permission to open the trunk. At the impoundment facility, an inventory search of the car turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. Under the trooper's direction, employees of the facility forced open the suitcase and discovered a garbage bag containing a considerable amount of marijuana. Wells was charged with possession of a controlled substance. His motion to suppress the marijuana on the ground that it was seized in violation of the Fourth Amendment to the United States Constitution was denied by the trial court. *3 He thereupon pleaded nolo contendere to the charge but reserved his right to appeal the denial of the motion to suppress. On appeal, the Florida District Court of Appeal for the Fifth District held, inter alia, that the trial court erred in denying suppression of the marijuana found in the suitcase. Over a dissent, the Supreme Court of Florida affirmed. 539 So. 2d 464, 469 (1989). We granted certiorari, 491 U.S. 903 (1989), and now affirm (although we disagree with part of the reasoning of the Supreme Court of Florida). The Supreme Court of Florida relied on the opinions in Colorado v. Bertine, 479 U.S. 367 (1987); id., at 376 (BLACKMUN, J., concurring). Referring to language in the Bertine concurrence and a footnote in the majority opinion, the court held that "[i]n the absence of a policy specifically requiring the opening of closed containers found during a legitimate inventory search, Bertine prohibits us from countenancing the procedure followed in this instance." 539 So. 2d, at 469. According to the court, the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches. Ibid. The court added, however: "The police under Bertine must mandate either that all containers will be opened during an inventory search, or that no containers will be opened. There can be no room for discretion." Ibid. While this latter statement of the Supreme Court of Florida derived support from a sentence in the Bertine concurence taken in isolation, we think it is at odds with the thrust of both the concurrence and the opinion of the Court in that case. We said in Bertine: "Nothing in [South Dakota v.] Opperman[, 428 U.S. 364 (1976),] or [Illinois v.] Lafayette[, 462 U.S. 640 (1983),] prohibits the exercise of police discretion so long as that *4 discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." 479 U.S., at 375. Our view that standardized criteria, ibid., or established routine, Illinois v. Lafayette, 462 U.S. 640, 648 (1983), must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime," Bertine, 479 U. S., at 376 (BLACKMUN, J., concurring). But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical "all or nothing" fashion. "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Id., at 372; see also South Dakota v. Opperman, 428 U.S. 364, 369 (1976). A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during *5 an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. Its judgment is therefore Affirmed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.

A Florida Highway Patrol trooper stopped respondent Wells for speeding. After smelling alcohol on Wells' breath, the trooper arrested Wells for driving under the influence. Wells then agreed to accompany the trooper to the station to take a breathalyzer test. The trooper informed Wells that the car would be impounded and obtained Wells' permission to open the trunk. At the impoundment facility, an inventory search of the car turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. Under the trooper's direction, employees of the facility forced open the suitcase and discovered a garbage bag containing a considerable amount of marijuana. Wells was charged with possession of a controlled substance. His motion to suppress the marijuana on the ground that it was seized in violation of the Fourth Amendment to the United States Constitution was denied by the trial court. *3 He thereupon pleaded nolo contendere to the charge but reserved his right to appeal the denial of the motion to suppress. On appeal, the Florida District Court of Appeal for the Fifth District held, inter alia, that the trial court erred in denying suppression of the marijuana found in the suitcase. Over a dissent, the Supreme Court of Florida affirmed. We granted certiorari, and now affirm (although we disagree with part of the reasoning of the Supreme Court of Florida). The Supreme Court of Florida relied on the opinions in ; Referring to language in the Bertine concurrence and a footnote in the majority opinion, the court held that "[i]n the absence of a policy specifically requiring the opening of closed containers found during a legitimate inventory search, Bertine prohibits us from countenancing the procedure followed in this instance." 539 So. 2d, at According to the court, the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches. The court added, however: "The police under Bertine must mandate either that all containers will be opened during an inventory search, or that no containers will be opened. There can be no room for discretion." While this latter statement of the Supreme Court of Florida derived support from a sentence in the Bertine concurence taken in isolation, we think it is at odds with the thrust of both the concurrence and the opinion of the Court in that case. We said in Bertine: "Nothing in [South Dakota v.] Opperman[,] or [Illinois v.] Lafayette[,] prohibits the exercise of police discretion so long as that *4 discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." Our view that standardized criteria, ib or established routine, must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime," Bertine, 479 U. S., But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical "all or nothing" fashion. "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." ; see also South A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during *5 an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. Its judgment is therefore Affirmed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.

Justice Stevens

dissenting

Associates Commercial Corp. v. Rash

https://www.courtlistener.com/opinion/118127/associates-commercial-corp-v-rash/

https://www.courtlistener.com/api/rest/v3/clusters/118127/

1996-073

Although the meaning of 11 U.S. C. § 506(a) is not entirely clear, I think its text points to foreclosure as the proper method of valuation in this case. The first sentence in § 506(a) tells courts to determine the value of the "creditor's interest in the estate's interest" in the property. 11 U.S. C. § 506(a) (emphasis added). This language suggests that the value should be determined from the creditor's perspective, i. e., what the collateral is worth, on the open market, in the creditor's hands, rather than in the hands of another party. The second sentence explains that "[s]uch value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property." Ibid. In this context, the "purpose of the valuation" is determined by 11 U.S. C. § 1325(a)(5)(B). Commonly known as the Bankruptcy Code's "cram down" provision, this section authorizes the debtor to keep secured property over the creditor's objections in a Chapter 13 reorganization, but, if he elects to do so, directs the debtor to pay the creditor the "value" of the secured claim. The "purpose" of this provision, and hence of the valuation under § 506(a), is to put the creditor in the same shoes as if he were able to exercise his lien and foreclose.[*] *967 It is crucial to keep in mind that § 506(a) is a provision that applies throughout the various chapters of the Bankruptcy Code; it is, in other words, a "utility" provision that operates in many different contexts. Even if the words "proposed disposition or use" did not gain special meaning in the cram down context, this would not render them surplusage because they have operational significance in their many other Code applications. In this context, I also think the foreclosure standard best comports with economic reality. Allowing any more than the foreclosure value simply grants a general windfall to under secured creditors at the expense of unsecured creditors. Cf. In re Hoskins, 102 F.3d 311, 320 (CA7 1996) (Easter brook, J., concurring in judgment). As Judge Easter brook explained in rejecting the split-thedifference approach as a general rule, see id., at 318-320, a foreclosure-value standard is also consistent with the larger statutory scheme by keeping the respective recoveries of secured and unsecured creditors the same throughout the various bankruptcy chapters. Accordingly, I respectfully dissent.

Although the meaning of 11 U.S. C. 506(a) is not entirely clear, I think its text points to foreclosure as the proper method of valuation in this case. The first sentence in 506(a) tells courts to determine the value of the "creditor's interest in the estate's interest" in the property. 11 U.S. C. 506(a) (emphasis added). This language suggests that the value should be determined from the creditor's perspective, i. e., what the collateral is worth, on the open market, in the creditor's hands, rather than in the hands of another party. The second sentence explains that "[s]uch value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property." In this context, the "purpose of the valuation" is determined by 11 U.S. C. 1325(a)(5)(B). Commonly known as the Bankruptcy Code's "cram down" provision, this section authorizes the debtor to keep secured property over the creditor's objections in a Chapter 13 reorganization, but, if he elects to do so, directs the debtor to pay the creditor the "value" of the secured claim. The "purpose" of this provision, and hence of the valuation under 506(a), is to put the creditor in the same shoes as if he were able to exercise his lien and foreclose.[*] *967 It is crucial to keep in mind that 506(a) is a provision that applies throughout the various chapters of the Bankruptcy Code; it is, in other words, a "utility" provision that operates in many different contexts. Even if the words "proposed disposition or use" did not gain special meaning in the cram down context, this would not render them surplusage because they have operational significance in their many other Code applications. In this context, I also think the foreclosure standard best comports with economic reality. Allowing any more than the foreclosure value simply grants a general windfall to under secured creditors at the expense of unsecured creditors. Cf. In re Hoskins, As Judge Easter brook explained in rejecting the split-thedifference approach as a general rule, see at 318-, a foreclosure-value standard is also consistent with the larger statutory scheme by keeping the respective recoveries of secured and unsecured creditors the same throughout the various bankruptcy chapters. Accordingly, I respectfully dissent.

Justice Marshall

majority

Goodyear Atomic Corp. v. Miller

https://www.courtlistener.com/opinion/112075/goodyear-atomic-corp-v-miller/

https://www.courtlistener.com/api/rest/v3/clusters/112075/

1987-087

The issue presented in this case is whether the Supremacy Clause bars the State of Ohio from subjecting a private contractor operating a federally owned nuclear production facility to a state-law workers' compensation provision that provides an increased award for injuries resulting from an employer's violation of a state safety regulation. I This case arises from an accident involving a worker at the Portsmouth Gaseous Diffusion Plant, a nuclear production facility located near Piketon, Ohio. The plant is owned by the United States, but at all times relevant to this action it was operated by a private company, appellant Goodyear Atomic Corporation, under contract with the Department of Energy (DOE). On July 30, 1980, appellee Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell from a scaffold while performing routine maintenance work and fractured his left ankle. His fall apparently was caused when his glove caught on a bolt protruding from the guardrail of the scaffolding. Miller applied to the Ohio Industrial Commission for an award under the State's workers' compensation program, for which Goodyear pays premiums to cover its Portsmouth employees. He received about $9,000 in workers' compensation. After returning to work, Miller filed an application for an additional award on the ground that his injury had resulted from Goodyear's violation of a state safety requirement. *177 Miller alleged that his fall was caused by Goodyear's failure to comply with Ohio Admin. Code § 4121:1-5-03(D)(2) (1987), which provides that "[e]xposed surfaces [on scaffolds] shall be free from sharp edges, burrs or other projecting parts." The Ohio Constitution provides that when an injury is caused by an employer's failure to comply with a specific state safety requirement, the Industrial Commission shall provide an additional award of 15% to 50% of the benefits already received. Ohio Const., Art. II, § 35. The state insurance fund recoups these additional payments by increasing the premium paid by the employer. Ibid. The Ohio Industrial Commission denied Miller's claim for a supplemental award. The Commission held that "the [Ohio] Codes of Specific Safety Requirements . . . may not be applied to the Portsmouth Gaseous Diffusion Plant under the doctrine of federal preemption." Claim No. 80-19975 (Mar. 8, 1983), App. 18. Miller filed a mandamus action in the Ohio Court of Appeals, seeking an order directing the Industrial Commission to consider his application. The court held that "[u]ntil it is clear that the federal government has preempted the field of safety regulation for safety hazards unrelated to radiation, . . . state specific safety regulations that give rise to an award for violation thereof are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government." No. 84AP-208 (July 25, 1985), App. 17. The court therefore ordered the Industrial Commission to consider Miller's claim that he was due an additional award because his injury was caused by a violation of a state safety regulation. A divided Ohio Supreme Court affirmed the decision of the Court of Appeals. State ex rel. Miller v. Ohio Industrial Comm'n, 26 Ohio St. 3d 110, 497 N.E.2d 76 (1986) (per curiam). Relying on the federal pre-emption analysis of Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), the court held that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S. C. § 2011 et seq. (1982 ed. and Supp. IV), *178 did not pre-empt Ohio from applying workers' compensation safety requirements unrelated to radiation hazards to nuclear facilities. 26 Ohio St. 3d, at 111-112, 497 N. E. 2d, at 77-78. In dissent, Justice Wright agreed with Goodyear's separate claim, not addressed by the majority, that in the absence of clearly expressed authorization from Congress, the Supremacy Clause barred the application of the state workers' compensation safety requirements to a federally owned facility. Justice Wright argued that Congress had not provided the necessary clear authorization to justify the application of the Ohio workers' compensation scheme. Id., at 112-115, 497 N.E.2d, at 78-80. We noted probable jurisdiction of Goodyear's appeal, 483 U.S. 1004 (1987), and now affirm the judgment of the Ohio Supreme Court on different reasoning. II Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction. See Brown Shoe Co. v. United States, 370 U.S. 294, 305-306 (1962). Title 28 U.S. C. § 1257(2) gives this Court appellate jurisdiction over final judgments by the highest court of a State where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity. "[A] state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds." Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 441 (1979). In this case, the additional-award provision of Ohio's workers' compensation statute, as applied to the Portsmouth facility, was drawn in question on the ground that it violated the Supremacy Clause, and the Ohio Supreme Court upheld the statute's application. The more difficult question is whether the judgment is "final" within the meaning of 28 U.S. C. § 1257(2), even though further proceedings are anticipated before the Ohio Industrial *179 Commission. The judgment of the Ohio Supreme Court requires that the Industrial Commission consider appellee's claim that his injury was caused by a failure to comply with a state safety regulation. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), we recognized four situations in which this Court views a judgment as final under § 1257(2) although further state proceedings are contemplated. In the fourth category are cases "where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation." Id., at 482-483. We believe the present case falls within this fourth category. The federal question whether the additional workers' compensation award is barred by federal law has been finally determined by the Ohio Supreme Court, and a reversal of the Ohio Supreme Court's holding would preclude any further proceedings. In addition, even if appellant prevails before the Industrial Commission on nonfederal grounds, for example, if the Commission determines that there was no violation of the state safety regulation, the unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in the area of nuclear production. The federal pre-emption analysis of the Ohio court sanctions direct state regulation of *180 nonradiological hazards at the Portsmouth facility, the only nuclear facility producing nuclear fuel for the Navy's nuclear fleet. Moreover, the decision has important implications for the regulation of federally owned nuclear production facilities in other States. Following our "pragmatic approach" to the question of finality, Cox Broadcasting Corp. v. Cohn, supra, at 486, we therefore conclude that the Ohio decision on the federal issue is a final judgment for purposes of 28 U.S. C. § 1257(2). III It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides "clear and unambiguous" authorization for such regulation. EPA v. State Water Resources Control Board, 426 U.S. 200, 211 (1976); accord, Hancock v. Train, 426 U.S. 167, 178-179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). As an initial matter, therefore, we consider whether the federally owned Portsmouth facility is likewise shielded from direct state regulation even though the facility is operated by a private party under contract with the United States.[1] We believe this question was answered in Hancock v. Train, 426 U. S., at 168, in which we faced the issue whether a State could enforce its pollution emission limitations against "federally owned or operated installations" by requiring that such installations obtain a state permit. One of the facilities at issue in Hancock was the Paducah Gaseous Diffusion Plant, *181 which, like the Portsmouth facility, is a federally owned nuclear production facility operated by a private contractor. Id., at 174, n. 23. Nuclear production facilities such as the Paducah and Portsmouth plants are authorized by statute to carry out a federal mission, with federal property, under federal control.[2] The Court struck down the permit requirement in Hancock, reasoning that without clear congressional authorization, " `the federal function must be left free' of [state] regulation." Id., at 179, quoting Mayo v. United States, supra, at 447. Hancock thus establishes that a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.[3] In this case, however, we are not presented with a direct state regulation of the operation of the Portsmouth facility. Rather, the case involves the imposition of a supplemental *182 award of workers' compensation, chargeable against Goodyear, for an injury caused by Goodyear's failure to comply with a state safety regulation. Appellant and the Solicitor General argue that the application of the Ohio additional award provision is nonetheless tantamount to a regulation of the Portsmouth facility and is thus invalid under the Supremacy Clause. We need not decide this issue, however, for we conclude that even if the provision is sufficiently akin to direct regulation of the Portsmouth facility to be potentially barred by the Supremacy Clause, ch. 822, 49 Stat. 1938, 40 U.S. C. § 290, provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility. Section 290 provides in relevant part: "Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen's compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be."[4] *183 Both appellant and the Solicitor General concede that the initial workers' compensation award received by respondent Miller is authorized by § 290. They contend, however, that § 290 does not authorize the supplemental award provided in Ohio's workers' compensation law when an employer violates a specific state safety regulation. At bottom, appellant and the Solicitor General argue that the phrase "workmen's compensation laws" in § 290, which is not defined, was not intended to include the additional-award provision in Ohio's workers' compensation law. Appellant claims that in the absence of a precise definition, we should infer that Congress envisioned the typical workers' compensation Act, under which workers are automatically entitled to certain benefits when they suffer a work-related injury, without regard to the employer's fault. A State's authority to enforce its workers' compensation laws under § 290, appellant continues, should be limited to such standard awards. We do not believe appellant's construction of § 290 can be squared with the statute's language and history. Section 290 provides that a state authority charged with enforcing "workmen's compensation laws," which in Ohio is the Industrial Commission, "shall have the power and authority to apply such laws" to federal premises "in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." This language places no express limitation on the type of workers' compensation scheme that is authorized.[5] On its face, § 290 compels the same workers' *184 compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility. In addition, at the time of the passage of § 290 in 1936, workers' compensation laws provided a wide variety of compensation schemes that do not fit neatly within appellant's view of the "typical" scheme. At least 15 States provided remedies in addition to basic workers' compensation awards when an employee was injured because of specified kinds of employer misconduct.[6] Eight of these States, including Ohio, provided supplemental awards when the employer violated a specific safety regulation.[7] We generally *185 presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts. See Director, OWCP v. Perini North River Associates, 459 U.S. 297, 319-320 (1983). In the absence of affirmative evidence in the language or history of the statute, we are unwilling to assume that Congress was ignorant of the substantial number of States providing additional workers' compensation awards when a state safety regulation was violated by the employer. Indeed, Congress appears to have recognized the diversity of workers' compensation schemes when it provided that workers' compensation would be awarded to workers on federal premises "in the same way and to the same extent" as provided by state law. The meaning of "workmen's compensation laws" in § 290, of course, is not infinitely elastic. We need not address the outer boundaries of that term in this case, however, because we believe it is clear that Congress intended Ohio's law and others of its ilk, which were solidly entrenched at the time of the enactment of § 290, to apply to federal facilities "to the same extent" that they apply to private facilities within the State. The only evidence in the legislative history of § 290 that appellant and the Solicitor General muster in support of their position is that Congress rejected a proposal that would have authorized States to apply state safety and insurance laws directly to federal projects. See S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936). But Congress' reluctance to allow direct state regulation of federal projects says little about whether Congress was likewise concerned with the incidental regulatory effects arising from the enforcement of a workers' compensation law, like Ohio's, that provides an additional award when the injury is caused by the breach of a safety regulation. The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers' compensation *186 award if an employee's injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not.[8] Cf. Silkwood v. Kerr-McGee Corp., 464 U. S., at 256 (Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted). Because the permission of incidental regulation is consistent with the preclusion of direct regulation, the legislative history relied on by appellant and the Solicitor General does not undermine the plain language of § 290. We conclude that the additional award provision of Ohio's workers' compensation law is unambiguously authorized by § 290 and therefore does not run afoul of the Supremacy Clause.[9] Accordingly, the judgment of the Ohio Supreme Court is affirmed. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

The issue presented in this case is whether the Supremacy Clause bars the State of Ohio from subjecting a private contractor operating a federally owned nuclear production facility to a state-law workers' compensation provision that provides an increased award for injuries resulting from an employer's violation of a state safety regulation. I This case arises from an accident involving a worker at the Portsmouth Gaseous Diffusion Plant, a nuclear production facility located near Piketon, Ohio. The plant is owned by the United but at all times relevant to this action it was operated by a private company, appellant Goodyear Atomic Corporation, under contract with the Department of Energy (DOE). On July 30, 1980, appellee Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell from a scaffold while performing routine maintenance work and fractured his left ankle. His fall apparently was caused when his glove caught on a bolt protruding from the guardrail of the scaffolding. Miller applied to the Ohio Industrial Commission for an award under the State's workers' compensation program, for which Goodyear pays premiums to cover its Portsmouth employees. He received about $9,000 in workers' compensation. After returning to work, Miller filed an application for an additional award on the ground that his injury had resulted from Goodyear's violation of a state safety requirement. *177 Miller alleged that his fall was caused by Goodyear's failure to comply with Ohio Admin. Code 4121:1-5-03(D)(2) which provides that "[e]xposed surfaces [on scaffolds] shall be free from sharp edges, burrs or other projecting parts." The Ohio Constitution provides that when an injury is caused by an employer's failure to comply with a specific state safety requirement, the Industrial Commission shall provide an additional award of 15% to 50% of the benefits already received. Ohio Const., Art. II, 35. The state insurance fund recoups these additional payments by increasing the premium paid by the employer. The Ohio Industrial Commission denied Miller's claim for a supplemental award. The Commission held that "the [Ohio] Codes of Specific Safety Requirements may not be applied to the Portsmouth Gaseous Diffusion Plant under the doctrine of federal preemption." Claim No. 80-19975 App. 18. Miller filed a mandamus action in the Ohio Court of Appeals, seeking an order directing the Industrial Commission to consider his application. The court held that "[u]ntil it is clear that the federal government has preempted the field of safety regulation for safety hazards unrelated to radiation, state specific safety regulations that give rise to an award for violation thereof are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government." No. 84AP-208 (July 25, 1985), App. 17. The court therefore ordered the Industrial Commission to consider Miller's claim that he was due an additional award because his injury was caused by a violation of a state safety regulation. A divided Ohio Supreme Court affirmed the decision of the Court of Appeals. State ex rel. Relying on the federal pre-emption analysis of the court held that the Atomic Energy Act of 1954, as amended, 42 U.S. C. 2011 et seq. (1982 ed. and Supp. IV), *178 did not pre-empt Ohio from applying workers' compensation safety requirements unrelated to radiation hazards to nuclear -78. In dissent, Justice Wright agreed with Goodyear's separate claim, not addressed by the majority, that in the absence of clearly expressed authorization from Congress, the Supremacy Clause barred the application of the state workers' compensation safety requirements to a federally owned facility. Justice Wright argued that Congress had not provided the necessary clear authorization to justify the application of the Ohio workers' compensation scheme. -80. We noted probable jurisdiction of Goodyear's appeal, and now affirm the judgment of the Ohio Supreme Court on different reasoning. II Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction. See Brown Shoe Title 28 U.S. C. 1257(2) gives this Court appellate jurisdiction over final judgments by the highest court of a State where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity. "[A] state statute is sustained within the meaning of 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds." Japan Line, In this case, the additional-award provision of Ohio's workers' compensation statute, as applied to the Portsmouth facility, was drawn in question on the ground that it violated the Supremacy Clause, and the Ohio Supreme Court upheld the statute's application. The more difficult question is whether the judgment is "final" within the meaning of 28 U.S. C. 1257(2), even though further proceedings are anticipated before the Ohio Industrial *179 Commission. The judgment of the Ohio Supreme Court requires that the Industrial Commission consider appellee's claim that his injury was caused by a failure to comply with a state safety regulation. In Cox Broadcasting we recognized four situations in which this Court views a judgment as final under 1257(2) although further state proceedings are contemplated. In the fourth category are cases "where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation." We believe the present case falls within this fourth category. The federal question whether the additional workers' compensation award is barred by federal law has been finally determined by the Ohio Supreme Court, and a reversal of the Ohio Supreme Court's holding would preclude any further proceedings. In addition, even if appellant prevails before the Industrial Commission on nonfederal grounds, for example, if the Commission determines that there was no violation of the state safety regulation, the unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in the area of nuclear production. The federal pre-emption analysis of the Ohio court sanctions direct state regulation of *180 nonradiological hazards at the Portsmouth facility, the only nuclear facility producing nuclear fuel for the Navy's nuclear fleet. Moreover, the decision has important implications for the regulation of federally owned nuclear production facilities in other Following our "pragmatic approach" to the question of finality, Cox Broadcasting we therefore conclude that the Ohio decision on the federal issue is a final judgment for purposes of 28 U.S. C. 1257(2). III It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides "clear and unambiguous" authorization for such regulation. ; accord, ; 319 U.S. As an initial matter, therefore, we consider whether the federally owned Portsmouth facility is likewise shielded from direct state regulation even though the facility is operated by a private party under contract with the United[1] We believe this question was answered in in which we faced the issue whether a State could enforce its pollution emission limitations against "federally owned or operated installations" by requiring that such installations obtain a state permit. One of the facilities at issue in Hancock was the Paducah Gaseous Diffusion Plant, *181 which, like the Portsmouth facility, is a federally owned nuclear production facility operated by a private contractor. Nuclear production facilities such as the Paducah and Portsmouth plants are authorized by statute to carry out a federal mission, with federal property, under federal control.[2] The Court struck down the permit requirement in Hancock, reasoning that without clear congressional authorization, " `the federal function must be left free' of [state] regulation." quoting Hancock thus establishes that a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.[3] In this case, however, we are not presented with a direct state regulation of the operation of the Portsmouth facility. Rather, the case involves the imposition of a supplemental *182 award of workers' compensation, chargeable against Goodyear, for an injury caused by Goodyear's failure to comply with a state safety regulation. Appellant and the Solicitor General argue that the application of the Ohio additional award provision is nonetheless tantamount to a regulation of the Portsmouth facility and is thus invalid under the Supremacy Clause. We need not decide this issue, however, for we conclude that even if the provision is sufficiently akin to direct regulation of the Portsmouth facility to be potentially barred by the Supremacy Clause, ch. 822, 40 U.S. C. 290, provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility. Section 290 provides in relevant part: "Whatsoever constituted authority of each of the several is charged with the enforcement of and requiring compliances with the State workmen's compensation laws of said and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said shall have the power and authority to apply such laws to all lands and premises owned or held by the United of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be."[4] *183 Both appellant and the Solicitor General concede that the initial workers' compensation award received by respondent Miller is authorized by 290. They contend, however, that 290 does not authorize the supplemental award provided in Ohio's workers' compensation law when an employer violates a specific state safety regulation. At bottom, appellant and the Solicitor General argue that the phrase "workmen's compensation laws" in 290, which is not defined, was not intended to include the additional-award provision in Ohio's workers' compensation law. Appellant claims that in the absence of a precise definition, we should infer that Congress envisioned the typical workers' compensation Act, under which workers are automatically entitled to certain benefits when they suffer a work-related injury, without regard to the employer's fault. A State's authority to enforce its workers' compensation laws under 290, appellant continues, should be limited to such standard awards. We do not believe appellant's construction of 290 can be squared with the statute's language and history. Section 290 provides that a state authority charged with enforcing "workmen's compensation laws," which in Ohio is the Industrial Commission, "shall have the power and authority to apply such laws" to federal premises "in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." This language places no express limitation on the type of workers' compensation scheme that is authorized.[5] On its face, 290 compels the same workers' *184 compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility. In addition, at the time of the passage of 290 in 1936, workers' compensation laws provided a wide variety of compensation schemes that do not fit neatly within appellant's view of the "typical" scheme. At least 15 provided remedies in addition to basic workers' compensation awards when an employee was injured because of specified kinds of employer misconduct.[6] Eight of these including Ohio, provided supplemental awards when the employer violated a specific safety regulation.[7] We generally *185 presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts. See Director, In the absence of affirmative evidence in the language or history of the statute, we are unwilling to assume that Congress was ignorant of the substantial number of providing additional workers' compensation awards when a state safety regulation was violated by the employer. Indeed, Congress appears to have recognized the diversity of workers' compensation schemes when it provided that workers' compensation would be awarded to workers on federal premises "in the same way and to the same extent" as provided by state law. The meaning of "workmen's compensation laws" in 290, of course, is not infinitely elastic. We need not address the outer boundaries of that term in this case, however, because we believe it is clear that Congress intended Ohio's law and others of its ilk, which were solidly entrenched at the time of the enactment of 290, to apply to federal facilities "to the same extent" that they apply to private facilities within the State. The only evidence in the legislative history of 290 that appellant and the Solicitor General muster in support of their position is that Congress rejected a proposal that would have authorized to apply state safety and insurance laws directly to federal projects. See S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936). But Congress' reluctance to allow direct state regulation of federal projects says little about whether Congress was likewise concerned with the incidental regulatory effects arising from the enforcement of a workers' compensation law, like Ohio's, that provides an additional award when the injury is caused by the breach of a safety regulation. The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers' compensation *186 award if an employee's injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not.[8] Cf. Because the permission of incidental regulation is consistent with the preclusion of direct regulation, the legislative history relied on by appellant and the Solicitor General does not undermine the plain language of 290. We conclude that the additional award provision of Ohio's workers' compensation law is unambiguously authorized by 290 and therefore does not run afoul of the Supremacy Clause.[9] Accordingly, the judgment of the Ohio Supreme Court is affirmed. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case.

Justice Rehnquist

majority

Griffin v. Oceanic Contractors, Inc.

https://www.courtlistener.com/opinion/110787/griffin-v-oceanic-contractors-inc/

https://www.courtlistener.com/api/rest/v3/clusters/110787/

1981-164

This case concerns the application of 46 U.S. C. § 596, which requires certain masters and vessel owners to pay seamen promptly after their discharge and authorizes seamen to *566 recover double wages for each day that payment is delayed without sufficient cause. The question is whether the district courts, in the exercise of discretion, may limit the period during which this wage penalty is assessed, or whether imposition of the penalty is mandatory for each day that payment is withheld in violation of the statute. I On February 18, 1976, petitioner signed an employment contract with respondent in New Orleans, agreeing to work as a senior pipeline welder on board vessels operated by respondent in the North Sea. The contract specified that petitioner's employment would extend "until December 15, 1976 or until Oceanic's 1976 pipeline committal in the North Sea is fulfilled, whichever shall occur first." App. 41. The contract also provided that respondent would pay for transportation to and from the worksite, but that if petitioner quit the job prior to its termination date, or if his services were terminated for cause, he would be charged with the cost of transportation back to the United States. Respondent reserved the right to withhold $137.50 from each of petitioner's first four paychecks "as a cash deposit for the payment of your return transportation in the event you should become obligated for its payment." Id., at 47. On March 6, 1976, petitioner flew from the United States to Antwerp, Belgium, where he reported to work at respondent's vessel, the "Lay Barge 27," berthed in the Antwerp harbor for repairs. On April 1, 1976, petitioner suffered an injury while working on the deck of the vessel readying it for sea. Two days later he underwent emergency surgery in Antwerp. On April 5, petitioner was discharged from the hospital and went to respondent's Antwerp office, where he spoke with Jesse Williams, the welding superintendent, and provided a physician's statement that he was not fit for duty. Williams refused to acknowledge that petitioner's injury was work-related *567 and denied that respondent was liable for medical and hospital expenses, maintenance, or unearned wages. Williams also refused to furnish transportation back to the United States, and continued to retain $412.50 in earned wages that had been deducted from petitioner's first three paychecks for that purpose. Petitioner returned to his home in Houston, Tex., the next day at his own expense. He was examined there by a physician who determined that he would be able to resume work on May 3, 1976. On May 5, petitioner began working as a welder for another company operating in the North Sea. In 1978 he brought suit against respondent under the Jones Act, § 20, 38 Stat. 1185, as amended, 46 U.S. C. § 688, and under general maritime law, seeking damages for respondent's failure to pay maintenance, cure, unearned wages, repatriation expenses, and the value of certain personal effects lost on board respondent's vessel. Petitioner also sought penalty wages under Rev. Stat. § 4529, as amended, 46 U.S. C. § 596, for respondent's failure to pay over the $412.50 in earned wages allegedly due upon discharge. The District Court found for petitioner and awarded damages totalling $23,670.40. Several findings made by that court are particularly relevant to this appeal. First, the court found that petitioner's injury was proximately caused by an unseaworthy condition of respondent's vessel. App. 17, ¶ 10; 23, ¶ 6. Second, the court found that petitioner was discharged from respondent's employ on the day of the injury, and that the termination of his employment was caused solely by that injury. Id., at 18, ¶ 16; 23, ¶ 7.[1] Third, it found that respondent's failure to pay petitioner the $412.50 in earned wages was "without sufficient *568 cause." Id., at 20, ¶ 20; 25, ¶ 11.[2] Finally, the court found that petitioner had exercised due diligence in attempting to collect those wages. Id., at 20, ¶ 21. In assessing penalty wages under 46 U.S. C. § 596, the court held that "[t]he period during which the penalty runs is to be determined by the sound discretion of the district court and depends on the equities of the case." App. 25, ¶ 11. It determined that the appropriate period for imposition of the penalty was from the date of discharge, April 1, 1976, through the date of petitioner's reemployment, May 5, 1976, a period of 34 days. Applying the statute, it computed a penalty of $6,881.60.[3] Petitioner appealed the award of damages as inadequate. The Court of Appeals for the Fifth Circuit affirmed. 664 F.2d 36 (1981). That court concluded, inter alia, that the District Court had not erred in limiting assessment of the penalty provided by 46 U.S. C. § 596 to the period beginning April 1 and ending May 5. The court recognized that the statute required payment of a penalty for each day during which wages were withheld until the date they were actually paid, which in this case did not occur until September 17, 1980, when respondent satisfied the judgment of the District Court. Id., at 40; see App. 30. Nevertheless, the court believed itself bound by prior decisions within the Circuit, which left calculation of the penalty period to the sound discretion of the district courts. 664 F.2d, at 40. It concluded *569 that the District Court in this case had not abused its discretion by assessing a penalty only for the period during which petitioner was unemployed. We granted certiorari to resolve a conflict among the Circuits regarding the proper application of the wage penalty statute.[4] 454 U.S. 1052 (1981). We reverse the judgment of the Court of Appeals as to that issue.[5] II A The language of the statute first obligates the master or owner of any vessel making coasting or foreign voyages to pay every seaman the balance of his unpaid wages within specified periods after his discharge.[6] It then provides: *570 "Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods ...." The statute in straightforward terms provides for the payment of double wages, depending upon the satisfaction of two conditions. First, the master or owner must have refused or failed to pay the seaman his wages within the periods specified. Second, this failure or refusal must be "without sufficient cause." Once these conditions are satisfied, however, the unadorned language of the statute dictates that the master or owner "shall pay to the seaman" the sums specified "for each and every day during which payment is delayed." The words chosen by Congress, given their plain meaning, leave no room for the exercise of discretion either in deciding whether to exact payment or in choosing the period of days by which the payment is to be calculated. As this Court described the statute many years ago, it "affords a definite and reasonable procedure by which the seaman may establish his right to recover double pay where his wages are unreasonably withheld." McCrea v. United States, 294 U.S. 23, 32 (1935). Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, "that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). *571 The District Court found that respondent had refused to pay petitioner the balance of his earned wages promptly after discharge, and that its refusal was "without sufficient cause." Respondent challenges neither of these findings. Although the two statutory conditions were satisfied, however, the District Court obviously did not assess double wages "for each and every day" during which payment was delayed, but instead limited the assessment to the period of petitioner's unemployment. Nothing in the language of the statute vests the courts with the discretion to set such a limitation. B Nevertheless, respondent urges that the legislative purpose of the statute is best served by construing it to permit some choice in determining the length of the penalty period. In respondent's view, the purpose of the statute is essentially remedial and compensatory, and thus it should not be interpreted literally to produce a monetary award that is so far in excess of any equitable remedy as to be punitive. Respondent, however, is unable to support this view of legislative purpose by reference to the terms of the statute. "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Assns., Inc., 310 U.S. 534, 543 (1940). See Caminetti v. United States, 242 U.S. 470, 490 (1917). Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved "some `scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning ... would thwart the obvious purpose of the statute.'" Commissioner v. Brown, 380 U.S. 563, 571 (1965) (quoting Helvering v. Hammel, 311 U.S. 504, 510-511 (1941)). This, however, is not the exceptional case. *572 As the Court recognized in Collie v. Fergusson, 281 U.S. 52 (1930), the "evident purpose" of the statute is "to secure prompt payment of seamen's wages ... and thus to protect them from the harsh consequences of arbitrary and unscrupulous action of their employers, to which, as a class, they are peculiarly exposed." Id., at 55. This was to be accomplished "by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and to induce prompt payment when payment is possible." Id., at 55-56. Thus, although the sure purpose of the statute is remedial, Congress has chosen to secure that purpose through the use of potentially punitive sanctions designed to deter negligent or arbitrary delays in payment. The legislative history of the statute leaves little if any doubt that this understanding is correct. The law owes its origins to the Act of July 20, 1790, ch. 29, § 6, 1 Stat. 133, passed by the First Congress. Although the statute as originally enacted gave every seaman the right to collect the wages due under his contract "as soon as the voyage is ended," it did not provide for the recovery of additional sums to encourage compliance. Such a provision was added by the Shipping Commissioners Act of 1872, ch. 322, § 35, 17 Stat. 269, which provided for the payment of "a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten days, during which payment is delayed." The Act of 1872 obviously established a ceiling of 10 days on the period during which the penalty could be assessed and, by use of the words "not exceeding," left the courts with discretion to choose an appropriate penalty within that period.[7] *573 Congress amended the law again in 1898. As amended, it read in relevant part: "Every master or owner who refuses or neglects to make payment in manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to one day's pay for each and every day during which payment is delayed beyond the respective periods." Act of Dec. 21, 1898, ch. 28, § 4, 30 Stat. 756. The amending legislation thus effected two changes: first, it removed the discretion theretofore existing by which courts might award less than an amount calculated on the basis of each day during which payment was delayed, and, second, it removed the 10-day ceiling which theretofore limited the number of days upon which an award might be calculated. The accompanying Committee Reports identify the purpose of the legislation as "the amelioration of the condition of the American seamen," and characterize the amended wage penalty in particular as "designed to secure the promptest possible payment of wages." H. R. Rep. No. 1657, 55th Cong., 2d Sess., 2, 3 (1898). See also S. Rep. No. 832, 54th Cong., 1st Sess., 2 (1896).[8] Nothing in the legislative history of the *574 1898 Act suggests that Congress intended to do anything other than what the Act's enacted language plainly demonstrates: to strengthen the deterrent effect of the statute by removing the courts' latitude in assessing the wage penalty. The statute was amended for the last time in 1915 to increase further the severity of the penalty by doubling the wages due for each day during which payment of earned wages was delayed. Seamen's Act of 1915, ch. 153, § 3, 38 Stat. 1164. There is no suggestion in the Committee Reports or in the floor debates that, in so doing, Congress intended to reinvest the courts with the discretion it had removed in the Act of 1898. Resort to the legislative history, therefore, merely confirms that Congress intended the statute to mean exactly what its plain language says. III Respondent argues, however, that a literal construction of the statute in this case would produce an absurd and unjust result which Congress could not have intended. The District Court found that the daily wage to be used in computing the penalty was $101.20. If the statute is applied literally, petitioner would receive twice this amount for each day after his discharge until September 17, 1980, when respondent satisfied the District Court's judgment.[9] Petitioner would receive *575 over $300,000 simply because respondent improperly withheld $412.50 in wages. In respondent's view, Congress could not have intended seamen to receive windfalls of this nature without regard to the equities of the case. It is true that interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available. See United States v. American Trucking Assns., Inc., 310 U. S., at 542-543; Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940). In refusing to nullify statutes, however hard or unexpected the particular effect, this Court has said: "Laws enacted with good intention, when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such case the remedy lies with the law making authority, and not with the courts." Crooks v. Harrelson, 282 U.S. 55, 60 (1930). It is highly probable that respondent is correct in its contention that a recovery in excess of $300,000 in this case greatly exceeds any actual injury suffered by petitioner as a result of respondent's delay in paying his wages. But this Court has previously recognized that awards made under this statute were not intended to be merely compensatory: "We think the use of this language indicates a purpose to protect seamen from delayed payments of wages by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and to induce prompt payment when payment is possible." Collie v. Fergusson, 281 U. S., at 55-56. *576 It is in the nature of punitive remedies to authorize awards that may be out of proportion to actual injury; such remedies typically are established to deter particular conduct, and the legislature not infrequently finds that harsh consequences must be visited upon those whose conduct it would deter. It is probably true that Congress did not precisely envision the grossness of the difference in this case between the actual wages withheld and the amount of the award required by the statute. But it might equally well be said that Congress did not precisely envision the trebled amount of some damages awards in private antitrust actions, see Reiter v. Sonotone Corp., 442 U.S. 330, 344-345 (1979), or that, because it enacted the Endangered Species Act, "the survival of a relatively small number of three-inch fish ... would require the permanent halting of a virtually completed dam for which Congress ha[d] expended more than $1 million," TVA v. Hill, 437 U.S. 153, 172 (1978). It is enough that Congress intended that the language it enacted would be applied as we have applied it. The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court. Congress may amend the statute; we may not. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., at 123-124; Reiter v. Sonotone, supra, at 344-345. Finally, we note that our holding is consistent with Pacific Mail S.S. Co. v. Schmidt, 241 U.S. 245 (1916). The employer in that case challenged a decision by the Court of Appeals to apply the wage penalty to the delay after the District Court's judgment occasioned by the employer's appeal. The Court held that on the facts of that case, application of the penalty beyond the date of the District Court's judgment was error. Contrary to respondent's assertion, however, the holding does not reflect the discretionary tailoring of the penalty to the equities of the case. Instead, the Court held that the delay pending appeal was not "without sufficient cause," as required by the statute before the penalty can attach. *577 Id., at 250.[10] As we explained earlier, a condition to the imposition of the wage penalty is a finding that the delay in payment is "without sufficient cause." To the extent that the equities of the situation are to be considered, see Collie v. Fergusson, supra, they bear on that finding, and not on the calculation of the penalty period once that finding has been made. IV The District Court found that respondent's refusal to pay petitioner earned wages following his discharge was without sufficient cause. It applied the wage penalty only for the period of nonpayment during which petitioner was unable to work. It made no finding, however, that respondent's continuing delay in payment beyond that period was for sufficient cause. Under the plain language of the statute, therefore, its decision to limit the penalty period was error. The judgment of the Court of Appeals affirming that decision accordingly is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

This case concerns the application of 46 U.S. C. 596, which requires certain masters and vessel owners to pay seamen promptly after their discharge and authorizes seamen to *566 recover double wages for each day that payment is delayed without sufficient cause. The question is whether the district courts, in the exercise of discretion, may limit the period during which this wage penalty is assessed, or whether imposition of the penalty is mandatory for each day that payment is withheld in violation of the statute. I On February 18, 1976, petitioner signed an employment contract with respondent in New Orleans, agreeing to work as a senior pipeline welder on board vessels operated by respondent in the North Sea. The contract specified that petitioner's employment would extend "until December 15, 1976 or until Oceanic's 1976 pipeline committal in the North Sea is fulfilled, whichever shall occur first." App. 41. The contract also provided that respondent would pay for transportation to and from the worksite, but that if petitioner quit the job prior to its termination date, or if his services were terminated for cause, he would be charged with the cost of transportation back to the United States. Respondent reserved the right to withhold $137.50 from each of petitioner's first four paychecks "as a cash deposit for the payment of your return transportation in the event you should become obligated for its payment." On March 6, 1976, petitioner flew from the United States to Antwerp, Belgium, where he reported to work at respondent's vessel, the "Lay Barge 27," berthed in the Antwerp harbor for repairs. On April 1, 1976, petitioner suffered an injury while working on the deck of the vessel readying it for sea. Two days later he underwent emergency surgery in Antwerp. On April 5, petitioner was discharged from the hospital and went to respondent's Antwerp office, where he spoke with Jesse Williams, the welding superintendent, and provided a physician's statement that he was not fit for duty. Williams refused to acknowledge that petitioner's injury was work-related *567 and denied that respondent was liable for medical and hospital expenses, maintenance, or unearned wages. Williams also refused to furnish transportation back to the United States, and continued to retain $412.50 in earned wages that had been deducted from petitioner's first three paychecks for that purpose. Petitioner returned to his home in Houston, Tex., the next day at his own expense. He was examined there by a physician who determined that he would be able to resume work on May 3, 1976. On May 5, petitioner began working as a welder for another company operating in the North Sea. In 1978 he brought suit against respondent under the Jones Act, 20, as amended, 46 U.S. C. 688, and under general maritime law, seeking damages for respondent's failure to pay maintenance, cure, unearned wages, repatriation expenses, and the value of certain personal effects lost on board respondent's vessel. Petitioner also sought penalty wages under Rev. Stat. 4529, as amended, 46 U.S. C. 596, for respondent's failure to pay over the $412.50 in earned wages allegedly due upon discharge. The District Court found for petitioner and awarded damages totalling $23,670.40. Several findings made by that court are particularly relevant to this appeal. First, the court found that petitioner's injury was proximately caused by an unseaworthy condition of respondent's vessel. App. 17, ¶ 10; 23, ¶ 6. Second, the court found that petitioner was discharged from respondent's employ on the day of the injury, and that the termination of his employment was caused solely by that injury. ; 23, ¶ 7.[1] Third, it found that respondent's failure to pay petitioner the $412.50 in earned wages was "without sufficient *568 cause." ; 25, ¶ 11.[2] Finally, the court found that petitioner had exercised due diligence in attempting to collect those wages. In assessing penalty wages under 46 U.S. C. 596, the court held that "[t]he period during which the penalty runs is to be determined by the sound discretion of the district court and depends on the equities of the case." App. 25, ¶ 11. It determined that the appropriate period for imposition of the penalty was from the date of discharge, April 1, 1976, through the date of petitioner's reemployment, May 5, 1976, a period of 34 days. Applying the statute, it computed a penalty of $6,881.[3] Petitioner appealed the award of damages as inadequate. The Court of Appeals for the Fifth Circuit affirmed. That court concluded, inter alia, that the District Court had not erred in limiting assessment of the penalty provided by 46 U.S. C. 596 to the period beginning April 1 and ending May 5. The court recognized that the statute required payment of a penalty for each day during which wages were withheld until the date they were actually paid, which in this case did not occur until September 17, 1980, when respondent satisfied the judgment of the District Court. ; see App. 30. Nevertheless, the court believed itself bound by prior decisions within the Circuit, which left calculation of the penalty period to the sound discretion of the district 664 F.2d, It concluded *569 that the District Court in this case had not abused its discretion by assessing a penalty only for the period during which petitioner was unemployed. We granted certiorari to resolve a conflict among the Circuits regarding the proper application of the wage penalty statute.[4] We reverse the judgment of the Court of Appeals as to that issue.[5] II A The language of the statute first obligates the master or owner of any vessel making coasting or foreign voyages to pay every seaman the balance of his unpaid wages within specified periods after his discharge.[6] It then provides: *570 "Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods" The statute in straightforward terms provides for the payment of double wages, depending upon the satisfaction of two conditions. First, the master or owner must have refused or failed to pay the seaman his wages within the periods specified. Second, this failure or refusal must be "without sufficient cause." Once these conditions are satisfied, however, the unadorned language of the statute dictates that the master or owner "shall pay to the seaman" the sums specified "for each and every day during which payment is delayed." The words chosen by Congress, given their plain meaning, leave no room for the exercise of discretion either in deciding whether to exact payment or in choosing the period of days by which the payment is to be calculated. As this Court described the statute many years ago, it "affords a definite and reasonable procedure by which the seaman may establish his right to recover double pay where his wages are unreasonably withheld." Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, "that language must ordinarily be regarded as conclusive." Consumer Product Safety * The District Court found that respondent had refused to pay petitioner the balance of his earned wages promptly after discharge, and that its refusal was "without sufficient cause." Respondent challenges neither of these findings. Although the two statutory conditions were satisfied, however, the District Court obviously did not assess double wages "for each and every day" during which payment was delayed, but instead limited the assessment to the period of petitioner's unemployment. Nothing in the language of the statute vests the courts with the discretion to set such a limitation. B Nevertheless, respondent urges that the legislative purpose of the statute is best served by construing it to permit some choice in determining the length of the penalty period. In respondent's view, the purpose of the statute is essentially remedial and compensatory, and thus it should not be interpreted literally to produce a monetary award that is so far in excess of any equitable remedy as to be punitive. Respondent, however, is unable to support this view of legislative purpose by reference to the terms of the statute. "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United See Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved "some `scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would thwart the obvious purpose of the statute.'" This, however, is not the exceptional case. *572 As the Court recognized in the "evident purpose" of the statute is "to secure prompt payment of seamen's wages and thus to protect them from the harsh consequences of arbitrary and unscrupulous action of their employers, to which, as a class, they are peculiarly exposed." This was to be accomplished "by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and to induce prompt payment when payment is possible." -56. Thus, although the sure purpose of the statute is remedial, Congress has chosen to secure that purpose through the use of potentially punitive sanctions designed to deter negligent or arbitrary delays in payment. The legislative history of the statute leaves little if any doubt that this understanding is correct. The law owes its origins to the Act of July 20, 1790, ch. 29, 6, passed by the First Congress. Although the statute as originally enacted gave every seaman the right to collect the wages due under his contract "as soon as the voyage is ended," it did not provide for the recovery of additional sums to encourage compliance. Such a provision was added by the Shipping Commissioners Act of 1872, ch. 2, 35, which provided for the payment of "a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten days, during which payment is delayed." The Act of 1872 obviously established a ceiling of 10 days on the period during which the penalty could be assessed and, by use of the words "not exceeding," left the courts with discretion to choose an appropriate penalty within that period.[7] *573 Congress amended the law again in 1898. As amended, it read in relevant part: "Every master or owner who refuses or neglects to make payment in manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to one day's pay for each and every day during which payment is delayed beyond the respective periods." Act of Dec. 21, 1898, ch. 28, 4, The amending legislation thus effected two changes: first, it removed the discretion theretofore existing by which courts might award less than an amount calculated on the basis of each day during which payment was delayed, and, second, it removed the 10-day ceiling which theretofore limited the number of days upon which an award might be calculated. The accompanying Committee Reports identify the purpose of the legislation as "the amelioration of the condition of the American seamen," and characterize the amended wage penalty in particular as "designed to secure the promptest possible payment of wages." H. R. Rep. No. 1657, 55th Cong., 2d Sess., 2, 3 (1898). See also S. Rep. No. 8, 54th Cong., 1st Sess., 2 (1896).[8] Nothing in the legislative history of the *574 1898 Act suggests that Congress intended to do anything other than what the Act's enacted language plainly demonstrates: to strengthen the deterrent effect of the statute by removing the courts' latitude in assessing the wage penalty. The statute was amended for the last time in 1915 to increase further the severity of the penalty by doubling the wages due for each day during which payment of earned wages was delayed. Seamen's Act of 1915, ch. 153, 3, There is no suggestion in the Committee Reports or in the floor debates that, in so doing, Congress intended to reinvest the courts with the discretion it had removed in the Act of 1898. Resort to the legislative history, therefore, merely confirms that Congress intended the statute to mean exactly what its plain language says. III Respondent argues, however, that a literal construction of the statute in this case would produce an absurd and unjust result which Congress could not have intended. The District Court found that the daily wage to be used in computing the penalty was $101.20. If the statute is applied literally, petitioner would receive twice this amount for each day after his discharge until September 17, 1980, when respondent satisfied the District Court's judgment.[9] Petitioner would receive *575 over $300,000 simply because respondent improperly withheld $412.50 in wages. In respondent's view, Congress could not have intended seamen to receive windfalls of this nature without regard to the equities of the case. It is true that interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available. See United -; Haggar In refusing to nullify statutes, however hard or unexpected the particular effect, this Court has said: "Laws enacted with good intention, when put to the test, frequently, and to the surprise of the law maker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such case the remedy lies with the law making authority, and not with the " It is highly probable that respondent is correct in its contention that a recovery in excess of $300,000 in this case greatly exceeds any actual injury suffered by petitioner as a result of respondent's delay in paying his wages. But this Court has previously recognized that awards made under this statute were not intended to be merely compensatory: "We think the use of this language indicates a purpose to protect seamen from delayed payments of wages by the imposition of a liability which is not exclusively compensatory, but designed to prevent, by its coercive effect, arbitrary refusals to pay wages, and to induce prompt payment when payment is possible." 281 U. S., -56. *576 It is in the nature of punitive remedies to authorize awards that may be out of proportion to actual injury; such remedies typically are established to deter particular conduct, and the legislature not infrequently finds that harsh consequences must be visited upon those whose conduct it would deter. It is probably true that Congress did not precisely envision the grossness of the difference in this case between the actual wages withheld and the amount of the award required by the statute. But it might equally well be said that Congress did not precisely envision the trebled amount of some damages awards in private antitrust actions, see or that, because it enacted the Endangered Species Act, "the survival of a relatively small number of three-inch fish would require the permanent halting of a virtually completed dam for which Congress ha[d] expended more than $1 million," It is enough that Congress intended that the language it enacted would be applied as we have applied it. The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court. Congress may amend the statute; we may not. See Consumer Product Safety -124; Reiter v. at Finally, we note that our holding is consistent with Pacific Mail S.S. The employer in that case challenged a decision by the Court of Appeals to apply the wage penalty to the delay after the District Court's judgment occasioned by the employer's appeal. The Court held that on the facts of that case, application of the penalty beyond the date of the District Court's judgment was error. Contrary to respondent's assertion, however, the holding does not reflect the discretionary tailoring of the penalty to the equities of the case. Instead, the Court held that the delay pending appeal was not "without sufficient cause," as required by the statute before the penalty can attach. *577[10] As we explained earlier, a condition to the imposition of the wage penalty is a finding that the delay in payment is "without sufficient cause." To the extent that the equities of the situation are to be considered, see they bear on that finding, and not on the calculation of the penalty period once that finding has been made. IV The District Court found that respondent's refusal to pay petitioner earned wages following his discharge was without sufficient cause. It applied the wage penalty only for the period of nonpayment during which petitioner was unable to work. It made no finding, however, that respondent's continuing delay in payment beyond that period was for sufficient cause. Under the plain language of the statute, therefore, its decision to limit the penalty period was error. The judgment of the Court of Appeals affirming that decision accordingly is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

Justice Alito

dissenting

Evans v. Michigan

https://www.courtlistener.com/opinion/820896/evans-v-michigan/

https://www.courtlistener.com/api/rest/v3/clusters/820896/

2012-018

The Court holds that the Double Jeopardy Clause bars petitioner’s retrial for arson because his attorney managed to convince a judge to terminate petitioner’s first trial prior to verdict on the specious ground that the offense with which he was charged contains an imaginary “ele- ment” that the prosecution could not prove. The Court’s decision makes no sense. It is not consistent with the original meaning of the Double Jeopardy Clause; it does not serve the purposes of the prohibition against double jeopardy; and contrary to the Court’s reasoning, the trial judge’s ruling was not an “acquittal,” which our cases have “consistently” defined as a decision that “ ‘actually repre- sents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ” E.g., Smith v. Massachusetts, 543 U.S. 462, 468 (2005) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977); emphasis added). For no good reason, the Court deprives the State of Michigan of its right to have one fair opportunity to convict petitioner, and I therefore respect- fully dissent. I After Detroit police officers heard an explosion at a burning house, they observed petitioner running away from the building with a gasoline can. The officers pur- 2 EVANS v. MICHIGAN ALITO, J., dissenting sued and ultimately apprehended petitioner, who admit- ted that he had burned down the house. No one was living in the house at the time of the fire. If the house in question had been a “dwelling house,” petitioner could have been charged under Mich. Comp. Laws §750.72 (1981) for burning a dwelling, an offense punishable by imprisonment for up to 20 years. But peti- tioner was instead charged with “[b]urning other real property” in violation of Mich. Comp. Laws §750.73. This offense, which carries a maximum penalty of 10 years’ imprisonment, applies to “[a]ny person who wilfully or maliciously burns any building or other real property . . . other than those specified in [§750.72].” This crime is a lesser included offense of the crime of burning a dwelling house. The “necessary elements to prove either offense are the same, except to prove the greater [offense] it must be shown that the building is a dwelling.” 491 Mich. 1, 19–20, 810 N.W.2d 535, 545–546 (2012) (internal quota- tion marks omitted). To prove the lesser offense, however, “ ‘it is not necessary to prove that the building is not a dwelling.’ ” Id., at 20, 810 N.W. 2d, at 546 (emphasis added). At the close of the prosecution’s case, petitioner’s attor- ney moved for a directed verdict on the ground that (1) the prosecution was required to prove, as an “element” of the charged offense, that “the building was not a dwelling” and (2) “the prosecution had failed to prove that the burned building was not a dwelling house.” Id., at 5, 810 N.W. 2d, at 537. The prosecutor responded by arguing that nothing in the charged offense requires proof that the building was not a dwelling, and the prosecutor requested “a moment” to “pull the statute” and “consult with [her] supervisors.” Id., at 5–7, 810 N.W. 2d, at 537–539. The trial judge denied the prosecutor’s requests and errone- ously concluded that the prosecution was required to prove that the burned building was not a dwelling. After deter- Cite as: 568 U. S. ____ (2013) 3 ALITO, J., dissenting mining that the State had not proved this nonexistent “element,” the trial judge granted petitioner’s motion for a directed verdict and entered an order that it labeled an “[a]cquittal.” App. to Pet. for Cert. 72. The trial judge’s ruling was plainly wrong, and on ap- peal, defense counsel did not even attempt to defend its correctness, conceding that the judge had “wrongly added an extraneous element to the statute” under which his client was charged. 491 Mich., at 3, 810 N.W. 2d, at 536; see also 288 Mich. App. 410, 416, and n. 2, 794 N.W.2d 848, 852, and n. 2 (2010). The Michigan Court of Appeals agreed with this concession and went on to hold that the trial judge’s ruling did not constitute an “acquittal” for double jeopardy purposes because the ruling did not rep- resent “a resolution in the defendant’s favor . . . of a fac- tual element necessary for a criminal conviction.” Id., at 421–422, 794 N.W. 2d, at 856 (internal quotation marks omitted). The Michigan Supreme Court affirmed, holding that when, as here, a trial judge erroneously adds an ex- tra “element” to a charged offense and subsequently de- termines that the prosecution did not prove that extra “element,” the trial judge’s decision is not based on the de- fendant’s guilt or innocence of the elements of the charged offense. 491 Mich., at 3–4, 19–21, 810 N.W. 2d, at 536– 537, 545–546. Accordingly, the Michigan Supreme Court concluded that the judge’s ruling in this case “does not constitute an acquittal for the purposes of double jeopardy and retrial is . . . not barred.” Id., at 4, 810 N.W. 2d, at 537. II This Court now reverses the decision of the State Su- preme Court, but the Court’s holding is supported by neither the original understanding of the prohibition against double jeopardy nor any of the reasons for that prohibition. 4 EVANS v. MICHIGAN ALITO, J., dissenting A The prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autre- fois convict, and pardon,” which “prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense.” United States v. Scott, 437 U.S. 82, 87 (1978); see Crist v. Bretz, 437 U.S. 28, 33 (1978). As the Court has previously explained, “the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict.” Smith, 543 U. S., at 466 (emphasis added).1 As a result, the original understanding of the Clause, which is “hardly a matter of dispute,” Scott, supra, at 87, does not compel the Court’s conclusion that a defendant is acquit- ted for double jeopardy purposes whenever a judge issues a preverdict ruling that the prosecution has failed to prove a nonexistent “element” of the charged offense. Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”); —————— 1 See also Crist, 437 U. S., at 33 (“The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed . . . the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal—after a complete trial. . . . And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope”); 3 J. Story, Commentaries on the Constitution of the United States §1781, p. 659 (1833) (“The mean- ing of [the Double Jeopardy Clause] is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict . . . .” (emphasis added)); 2 M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon trial either by verdict or battle”). Cite as: 568 U. S. ____ (2013) 5 ALITO, J., dissenting Crist, supra, at 33–34, I nonetheless count it significant that the result the Court reaches today finds no support in the relevant common-law analogues that “lie at the core of the area protected by the Double Jeopardy Clause,” see Scott, 437 U. S., at 96. And given how far we have depart- ed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy. See id., at 95–96, 100–101. Yet today’s decision fails to ad- vance the purposes of the Double Jeopardy Clause. B The Double Jeopardy Clause is largely based on “the deeply ingrained principle that the State with all its re- sources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and or- deal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibil- ity that even though innocent he may be found guilty.” Yeager v. United States, 557 U.S. 110, 117–118 (2009) (internal quotation marks omitted); see also Blueford v. Arkansas, 566 U.S. ___, ___ (2012) (slip op., at 5); Martin Linen, 430 U. S., at 569. Allowing retrial in the circum- stances of the present case would not result in any such abuse. The prosecution would not be afforded a second opportunity to persuade the factfinder that its evidence satisfies the actual elements of the offense. Instead, be- cause the trial judge’s ruling in the first trial was not based on an actual element of the charged offense, retrial would simply give the prosecution one fair opportunity to prove its case. Allowing retrial in this case would not permit prosecu- tors “to make repeated attempts to convict an individual for an alleged offense,” Yeager, supra, at 117. It was 6 EVANS v. MICHIGAN ALITO, J., dissenting petitioner, not the prosecutor, who sought to terminate the trial prior to verdict. Thus, contrary to the Court’s unex- plained suggestion, see ante, at 5–6, “[t]his case hardly presents the specter of ‘an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.’ ” Sattazahn v. Pennsylvania, 537 U.S. 101, 114–115 (2003) (quoting Scott, supra, at 96). On the contrary, this is a case in which defense counsel fooled the judge into committing an error that provided his client with an undeserved benefit, the termination of a trial that the defense obviously did not want to run to completion. The Double Jeopardy Clause does not require that the defense receive an even greater benefit, the protection provided by an acquittal. As this Court has repeatedly emphasized in double jeopardy cases, a State has an interest in receiving “one complete opportunity to convict those who have violated its laws,” Sattazahn, supra, at 115 (internal quotation marks omitted); Scott, supra, at 100, but today’s decision deprives the State of Michigan of this valuable right. C The Court’s decision also flies in the face of our estab- lished understanding of the meaning of an acquittal for double jeopardy purposes. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5 (emphasis added). Thus, “[d]ouble- jeopardy analysis focuses on the individual ‘offence’ charged.” Smith, 543 U. S., at 469, n. 3. And to determine what constitutes “the individual ‘offence’ charged,” ibid., the Court homes in on the elements of the offense. See United States v. Dixon, 509 U.S. 688, 696 (1993) (“In both the multiple punishment and multiple prosecution con- texts, this Court has concluded that where the two of- Cite as: 568 U. S. ____ (2013) 7 ALITO, J., dissenting fenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies”). Consistent with the constitutional text’s focus on the “offence”—and thus the elements—with which a defendant is charged, the Court’s “double-jeopardy cases have consistently” defined an acquittal as a decision that “ ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ” Smith, supra, at 468 (quoting Martin Linen, supra, at 571); see also Scott, supra, at 97 (“[A] defendant is acquit- ted only when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged” (internal quotation marks and brackets omitted)). Today, the Court effectively abandons the well- established definition of an acquittal. Indeed, in the face of our repeated holdings that an acquittal for double jeop- ardy purposes requires a “resolution, correct or not, of some or all of the factual elements of the offense charged,” Smith, supra, at 468; Martin Linen, supra, at 571; see also Scott, supra, at 97, the Court now declares that “the touchstone [is] not whether any particular elements were resolved,” ante, at 10 (emphasis added). Instead, the Court proclaims that the dispositive question is whether a midtrial termination represented a “procedural dismissa[l]” or a “substantive rulin[g],” ante, at 5. This reformulation of double jeopardy law is not faithful to our prece- dents—or to the Double Jeopardy Clause itself. The key question is not whether a ruling is “procedural” or “sub- stantive” (whatever those terms mean in this context), but whether a ruling relates to the defendant’s factual guilt or innocence with respect to the “offence,” see U. S. Const., Amdt. 5—and thus the elements—with which he is charged. See Scott, supra, at 87, 97–99, and n. 11. When a judge evaluates the evidence and determines 8 EVANS v. MICHIGAN ALITO, J., dissenting that the prosecution has not proved facts that are legally sufficient to satisfy the actual elements of the charged offense, the ruling, however labeled, represents an acquit- tal because it is founded on the defendant’s factual inno- cence. See Martin Linen, 430 U. S., at 572. But when a judge manufactures an additional “element” of an offense and then holds that there is insufficient evidence to prove that extra “element,” the judge has not resolved the de- fendant’s “factual guilt or innocence” as to any of the actual elements of the offense.2 Thus, the ruling, no mat- ter what the judge calls it, does not acquit the defendant of the offense with which he is charged. No acquittal occurs when a criminal trial is terminated “on a basis unrelated to factual guilt or innocence of the offense of which [a defendant] is accused.” Scott, 437 U. S., at 87, 94–95, 98– 99. “[I]n a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cog- nizable under the Double Jeopardy Clause if the Govern- ment is permitted to appeal from such a ruling of the trial court in favor of the defendant.” Id., at 98–99 (reasoning that, in such a case, the defendant was “neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him”). —————— 2 Because culpability for an offense can be negated by proof of an affirmative defense, the Court has held that a ruling that the prosecu- tion did not submit sufficient evidence to rebut an affirmative defense constitutes an acquittal for double jeopardy purposes. See Burks v. United States, 437 U.S. 1, 10–11 (1978); Scott, 437 U. S., at 97–98. Thus, as used in this opinion, the “elements” of an offense include legally recognized affirmative defenses that would negate culpability. Cite as: 568 U. S. ____ (2013) 9 ALITO, J., dissenting III Contrary to the Court’s opinion, its decision in this case is not supported by prior precedent. In all three of the principal cases on which the Court relies—Smalis v. Penn- sylvania, 476 U.S. 140 (1986); Smith, 543 U.S. 462; and Arizona v. Rumsey, 467 U.S. 203 (1984)—trial judges ruled that the prosecution had failed to introduce suffi- cient evidence to prove one or more of the actual elements of the offenses in question. In none of these cases (and in none of our other double jeopardy cases) did a trial judge terminate a prosecution before verdict based on an ele- ment of the judge’s own creation. The first two cases, Smalis and Smith, involved gar- den variety preverdict acquittals, i.e., rulings based on the ground that the prosecution had failed to introduce suffi- cient evidence to prove one or more of the actual elements of an offense. (Using conventional modern terminology, Rule 29(a) of the Federal Rules of Criminal Procedure explicitly labels such rulings “acquittal[s].”) In Smalis, the judge, at the close of the prosecution’s case in chief, granted a demurrer with respect to certain charges on the ground that the evidence regarding those charges was “legally insufficient to support a conviction.” 476 U. S., at 141. The State Supreme Court held that this ruling was not an acquittal for double jeopardy purposes because it was based on a legal determination (i.e., that the evidence was not sufficient) rather than a factual finding, but we rejected that distinction. Id., at 143–144. See also Sanabria v. United States, 437 U.S. 54, 71–72 (1978). Smith involved a similar situation. There, one of the elements of a firearms offense with which the defendant was charged required proof that the gun “had a barrel ‘less than 16 inches’ in length,” 543 U. S., at 464, and the trial judge dismissed this charge before verdict on the ground that the prosecution had not introduced sufficient evi- 10 EVANS v. MICHIGAN ALITO, J., dissenting dence to establish this undisputed element, id., at 464– 465. Before the remaining charges were submitted to the jury, however, the judge reversed this ruling and allowed the charge to go to the jury. Id., at 465. We held, how- ever, that the judge’s prior ruling constituted an acquittal and therefore barred the defendant’s conviction for this offense. Id., at 467–469. Thus, both Smalis and Smith involved rulings that were very different from the one at issue here. In both of those earlier cases, the trial judges held that the evidence was insufficient to prove undis- puted elements of the offenses in question. In neither case did the judge invent a new element. The final case, Rumsey, differs from Smalis and Smith in only one particular. Like Smalis and Smith, Rumsey involved a ruling that the prosecution’s evidence was in- sufficient to prove an element, but in Rumsey the ruling was predicated on a misconstruction of an element. In that case, after the defendant was found guilty of first- degree murder, the “trial judge, with no jury, . . . con- ducted a separate sentencing hearing” at which he deter- mined that no aggravating circumstances were present. 467 U. S., at 205. In particular, the judge found that the prosecution had not proved that the murder had been committed “ ‘as consideration for the receipt, or in expecta- tion of the receipt, of anything of pecuniary value.’ ” Id., at 205–206 (quoting Ariz. Rev. Stat. Ann. §13–703(F)(5) (Supp. 1983–1984)). The judge reached this conclusion because, in his (incorrect) view, that aggravating circum- stance was limited to contract killings. 467 U. S., at 205– 206. Holding that the judge’s ruling constituted an acquit- tal on the merits of the question whether a death sentence was appropriate, we noted that the ruling rested on “a misconstruction of the statute defining the pecuniary gain aggravating circumstance.” Id., at 211. Accordingly, the ruling was based on a determination that there was insuf- ficient evidence to prove a real element; it was not based Cite as: 568 U. S. ____ (2013) 11 ALITO, J., dissenting on the judicial invention of an extra “element.” And for that reason, it does not support the nonsensical result that the Court reaches today. The Court may feel compelled to reach that result be- cause it thinks that it would be unworkable to draw a distinction between a preverdict termination based on the trial judge’s misconstruction of an element of an offense and a preverdict termination based on the judge’s percep- tion that a statute contains an “element” that is actually nonexistent. This practical concern is overblown. There may be cases in which this determination presents prob- lems, but surely there are many cases in which the de- termination is quite easy. The present case is a perfect example, for here there is no real dispute that the trial judge’s ruling was based on a nonexistent statutory “ele- ment.” As noted, defense counsel conceded on appeal that the judge had “wrongly added an extraneous element to the statute” under which his client was charged. 491 Mich., at 3, 810 N.W. 2d, at 536. Another good example is provided by State v. Korsen, 138 Idaho 706, 69 P.3d 126 (2003), where a Magistrate erroneously concluded that the offense of criminal trespass under Idaho law requires a showing that the defendant did something to justify the property owner’s request for the defendant to leave the premises. Id., at 710, 716–717, 69 P. 3d, at 130, 136–137. There is no question that the Magistrate in Korsen “effectively created an additional statutory element” before concluding that the prosecution had presented insufficient evidence as to this purported “element.” See ibid. (holding that double jeopardy did not bar a retrial because the Magistrate’s “finding did not actually determine in [defendant’s] favor any of the essen- tial elements of the crime of trespass”). Cases in which it can be said that a trial judge did not simply misinterpret a real element of an offense but in- stead invented an entirely new and nonexistent “element” 12 EVANS v. MICHIGAN ALITO, J., dissenting are cases in which the judge’s error is particularly egre- gious. Permitting retrial in these egregious cases is espe- cially appropriate. * * * I would hold that double jeopardy protection is not triggered by a judge’s erroneous preverdict ruling that creates an “element” out of thin air and then holds that the element is not satisfied. I therefore respectfully dissent

The Court holds that the Double Jeopardy Clause bars petitioner’s retrial for arson because his attorney managed to convince a judge to terminate petitioner’s first trial prior to verdict on the specious ground that the offense with which he was charged contains an imaginary “ele- ment” that the prosecution could not prove. The Court’s decision makes no sense. It is not consistent with the original meaning of the Double Jeopardy Clause; it does not serve the purposes of the prohibition against double jeopardy; and contrary to the Court’s reasoning, the trial judge’s ruling was not an “acquittal,” which our cases have “consistently” defined as a decision that “ ‘actually repre- sents a resolution, correct or not, of some or all of the factual elements of the offense ’ ” E.g., v. Massachusetts, (quoting United (1977); emphasis added). For no good reason, the Court deprives the State of Michigan of its right to have one fair opportunity to convict petitioner, and I therefore respect- fully dissent. I After Detroit police officers heard an explosion at a burning house, they observed petitioner running away from the building with a gasoline can. The officers pur- 2 EVANS v. MICHIGAN ALITO, J., dissenting sued and ultimately apprehended petitioner, who admit- ted that he had burned down the house. No one was living in the house at the time of the fire. If the house in question had been a “dwelling house,” petitioner could have been charged under Mich. Comp. Laws (1981) for burning a dwelling, an offense punishable by imprisonment for up to 20 years. But peti- tioner was instead charged with “[b]urning other real property” in violation of This offense, which carries a maximum penalty of 10 years’ imprisonment, applies to “[a]ny person who wilfully or maliciously burns any building or other real property other than those specified in [].” This crime is a lesser included offense of the crime of burning a dwelling house. The “necessary elements to prove either offense are the same, except to prove the greater [offense] it must be shown that the building is a dwelling.” 19–20, (internal quota- tion marks omitted). To prove the lesser offense, however, “ ‘it is not necessary to prove that the building is not a dwelling.’ ” 810 N.W. 2d, at 546 (emphasis added). At the close of the prosecution’s case, petitioner’s attor- ney moved for a directed verdict on the ground that (1) the prosecution was required to prove, as an “element” of the charged offense, that “the building was not a dwelling” and (2) “the prosecution had failed to prove that the burned building was not a dwelling house.” N.W. 2d, at 537. The prosecutor responded by arguing that nothing in the charged offense requires proof that the building was not a dwelling, and the prosecutor requested “a moment” to “pull the statute” and “consult with [her] supervisors.” at 5–7, 810 N.W. 2d, at 537–539. The trial judge denied the prosecutor’s requests and errone- ously concluded that the prosecution was required to prove that the burned building was not a dwelling. After deter- Cite as: 568 U. S. (2013) 3 ALITO, J., dissenting mining that the State had not proved this nonexistent “element,” the trial judge granted petitioner’s motion for a directed verdict and entered an order that it labeled an “[a]cquittal.” App. to Pet. for Cert. 72. The trial judge’s ruling was plainly wrong, and on ap- peal, defense counsel did not even attempt to defend its correctness, conceding that the judge had “wrongly added an extraneous element to the statute” under which his client was 810 N.W. 2d, at 536; see also and n. 2, 794 N.W.2d 848, 852, and n. 2 (2010). The Michigan Court of Appeals agreed with this concession and went on to hold that the trial judge’s ruling did not constitute an “acquittal” for double jeopardy purposes because the ruling did not rep- resent “a resolution in the defendant’s favor of a fac- tual element necessary for a criminal conviction.” at 421–422, 794 N.W. 2d, at 856 (internal quotation marks omitted). The Michigan Supreme Court affirmed, holding that when, as here, a trial judge erroneously adds an ex- tra “element” to a charged offense and subsequently de- termines that the prosecution did not prove that extra “element,” the trial judge’s decision is not based on the de- fendant’s guilt or innocence of the elements of the charged –4, 19–21, 810 N.W. 2d, at 536– 537, Accordingly, the Michigan Supreme Court concluded that the judge’s ruling in this case “does not constitute an acquittal for the purposes of double jeopardy and retrial is not barred.” 810 N.W. 2d, at 537. II This Court now reverses the decision of the State Su- preme Court, but the Court’s holding is supported by neither the original understanding of the prohibition against double jeopardy nor any of the reasons for that prohibition. 4 EVANS v. MICHIGAN ALITO, J., dissenting A The prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autre- fois convict, and pardon,” which “prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same ” United ; see 33 As the Court has previously explained, “the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict.” 543 U. S., 661 As a result, the original understanding of the Clause, which is “hardly a matter of dispute,” at does not compel the Court’s conclusion that a defendant is acquit- ted for double jeopardy purposes whenever a judge issues a preverdict ruling that the prosecution has failed to prove a nonexistent “element” of the charged Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., 66–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”); —————— 1 See also (“The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal—after a complete trial. And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope”); 3 J. Story, Commentaries on the Constitution of the United States p. 659 (1833) (“The mean- ing of [the Double Jeopardy Clause] is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict” ); 2 M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon trial either by verdict or battle”). Cite as: 568 U. S. (2013) 5 ALITO, J., dissenting at 33–34, I nonetheless count it significant that the result the Court reaches today finds no support in the relevant common-law analogues that “lie at the core of the area protected by the Double Jeopardy Clause,” see And given how far we have depart- ed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy. See at 95–96, 100–101. Yet today’s decision fails to ad- vance the purposes of the Double Jeopardy Clause. B The Double Jeopardy Clause is largely based on “the deeply ingrained principle that the State with all its re- sources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and or- deal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibil- ity that even though innocent he may be found guilty.” (internal quotation marks omitted); see also Blueford v. Arkansas, 566 U.S. (slip op., at 5); Martin Allowing retrial in the circum- stances of the present case would not result in any such abuse. The prosecution would not be afforded a second opportunity to persuade the factfinder that its evidence satisfies the actual elements of the Instead, be- cause the trial judge’s ruling in the first trial was not based on an actual element of the charged offense, retrial would simply give the prosecution one fair opportunity to prove its case. Allowing retrial in this case would not permit prosecu- tors “to make repeated attempts to convict an individual for an alleged offense,” It was 6 EVANS v. MICHIGAN ALITO, J., dissenting petitioner, not the prosecutor, who sought to terminate the trial prior to verdict. Thus, contrary to the Court’s unex- plained suggestion, see ante, at 5–6, “[t]his case hardly presents the specter of ‘an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.’ ” v. Pennsylvania, (quoting ). On the contrary, this is a case in which defense counsel fooled the judge into committing an error that provided his client with an undeserved benefit, the termination of a trial that the defense obviously did not want to run to completion. The Double Jeopardy Clause does not require that the defense receive an even greater benefit, the protection provided by an acquittal. As this Court has repeatedly emphasized in double jeopardy cases, a State has an interest in receiving “one complete opportunity to convict those who have violated its laws,” (internal quotation marks omitted); but today’s decision deprives the State of Michigan of this valuable right. C The Court’s decision also flies in the face of our estab- lished understanding of the meaning of an acquittal for double jeopardy purposes. The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5 Thus, “[d]ouble- jeopardy analysis focuses on the individual ‘offence’ ” 543 U. S., 69, n. 3. And to determine what constitutes “the individual ‘offence’ charged,” ib the Court homes in on the elements of the See United (“In both the multiple punishment and multiple prosecution con- texts, this Court has concluded that where the two of- Cite as: 568 U. S. (2013) 7 ALITO, J., dissenting fenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies”). Consistent with the constitutional text’s focus on the “offence”—and thus the elements—with which a defendant is charged, the Court’s “double-jeopardy cases have consistently” defined an acquittal as a decision that “ ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense ’ ” at (quoting Martin at ); see also (“[A] defendant is acquit- ted only when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged” (internal quotation marks and brackets omitted)). Today, the Court effectively abandons the well- established definition of an acquittal. Indeed, in the face of our repeated holdings that an acquittal for double jeop- ardy purposes requires a “resolution, correct or not, of some or all of the factual elements of the offense charged,” at ; Martin at ; see also the Court now declares that “the touchstone [is] not whether any particular elements were resolved,” ante, at 10 Instead, the Court proclaims that the dispositive question is whether a midtrial termination represented a “procedural dismissa[l]” or a “substantive rulin[g],” ante, at 5. This reformulation of double jeopardy law is not faithful to our prece- dents—or to the Double Jeopardy Clause itself. The key question is not whether a ruling is “procedural” or “sub- stantive” (whatever those terms mean in this context), but whether a ruling relates to the defendant’s factual guilt or innocence with respect to the “offence,” see U. S. Const., Amdt. 5—and thus the elements—with which he is See at 97–99, and n. 11. When a judge evaluates the evidence and determines 8 EVANS v. MICHIGAN ALITO, J., dissenting that the prosecution has not proved facts that are legally sufficient to satisfy the actual elements of the charged offense, the ruling, however labeled, represents an acquit- tal because it is founded on the defendant’s factual inno- cence. See Martin But when a judge manufactures an additional “element” of an offense and then holds that there is insufficient evidence to prove that extra “element,” the judge has not resolved the de- fendant’s “factual guilt or innocence” as to any of the actual elements of the 2 Thus, the ruling, no mat- ter what the judge calls it, does not acquit the defendant of the offense with which he is No acquittal occurs when a criminal trial is terminated “on a basis unrelated to factual guilt or innocence of the offense of which [a defendant] is accused.” 437 U. S., at 94–95, 98– 99. “[I]n a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cog- nizable under the Double Jeopardy Clause if the Govern- ment is permitted to appeal from such a ruling of the trial court in favor of the defendant.” at 98–99 (reasoning that, in such a case, the defendant was “neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him”). —————— 2 Because culpability for an offense can be negated by proof of an affirmative defense, the Court has held that a ruling that the prosecu- tion did not submit sufficient evidence to rebut an affirmative defense constitutes an acquittal for double jeopardy purposes. See Burks v. United States, ; 437 U. S., –98. Thus, as used in this opinion, the “elements” of an offense include legally recognized affirmative defenses that would negate culpability. Cite as: 568 U. S. (2013) 9 ALITO, J., dissenting III Contrary to the Court’s opinion, its decision in this case is not supported by prior precedent. In all three of the principal cases on which the Court ; ; and —trial judges ruled that the prosecution had failed to introduce suffi- cient evidence to prove one or more of the actual elements of the offenses in question. In none of these cases (and in none of our other double jeopardy cases) did a trial judge terminate a prosecution before verdict based on an ele- ment of the judge’s own creation. The first two cases, Smalis and involved gar- den variety preverdict acquittals, i.e., rulings based on the ground that the prosecution had failed to introduce suffi- cient evidence to prove one or more of the actual elements of an (Using conventional modern terminology, Rule 29(a) of the Federal Rules of Criminal Procedure explicitly labels such rulings “acquittal[s].”) In Smalis, the judge, at the close of the prosecution’s case in chief, granted a demurrer with respect to certain charges on the ground that the evidence regarding those charges was “legally insufficient to support a conviction.” The State Supreme Court held that this ruling was not an acquittal for double jeopardy purposes because it was based on a legal determination (i.e., that the evidence was not sufficient) rather than a factual finding, but we rejected that distinction. at 143–144. See also 71–72 involved a similar situation. There, one of the elements of a firearms offense with which the defendant was charged required proof that the gun “had a barrel ‘less than 16 inches’ in length,” 543 U. S., 64, and the trial judge dismissed this charge before verdict on the ground that the prosecution had not introduced sufficient evi- 10 EVANS v. MICHIGAN ALITO, J., dissenting dence to establish this undisputed element, 64– 465. Before the remaining charges were submitted to the jury, however, the judge reversed this ruling and allowed the charge to go to the jury. 65. We held, how- ever, that the judge’s prior ruling constituted an acquittal and therefore barred the defendant’s conviction for this 67–469. Thus, both Smalis and involved rulings that were very different from the one at issue here. In both of those earlier cases, the trial judges held that the evidence was insufficient to prove undis- puted elements of the offenses in question. In neither case did the judge invent a new element. The final case, Rumsey, differs from Smalis and in only one particular. Like Smalis and Rumsey involved a ruling that the prosecution’s evidence was in- sufficient to prove an element, but in Rumsey the ruling was predicated on a misconstruction of an element. In that case, after the defendant was found guilty of first- degree murder, the “trial judge, with no jury, con- ducted a separate sentencing hearing” at which he deter- mined that no aggravating circumstances were present. 467 U. S., 5. In particular, the judge found that the prosecution had not proved that the murder had been committed “ ‘as consideration for the receipt, or in expecta- tion of the receipt, of anything of pecuniary value.’ ” at 205–206 (quoting –703(F)(5) ). The judge reached this conclusion because, in his (incorrect) view, that aggravating circum- stance was limited to contract 467 U. S., 5– 206. Holding that the judge’s ruling constituted an acquit- tal on the merits of the question whether a death sentence was appropriate, we noted that the ruling rested on “a misconstruction of the statute defining the pecuniary gain aggravating circumstance.” Accordingly, the ruling was based on a determination that there was insuf- ficient evidence to prove a real element; it was not based Cite as: 568 U. S. (2013) 11 ALITO, J., dissenting on the judicial invention of an extra “element.” And for that reason, it does not support the nonsensical result that the Court reaches today. The Court may feel compelled to reach that result be- cause it thinks that it would be unworkable to draw a distinction between a preverdict termination based on the trial judge’s misconstruction of an element of an offense and a preverdict termination based on the judge’s percep- tion that a statute contains an “element” that is actually nonexistent. This practical concern is overblown. There may be cases in which this determination presents prob- lems, but surely there are many cases in which the de- termination is quite easy. The present case is a perfect example, for here there is no real dispute that the trial judge’s ruling was based on a nonexistent statutory “ele- ment.” As noted, defense counsel conceded on appeal that the judge had “wrongly added an extraneous element to the statute” under which his client was 491 Mich., at 3, 810 N.W. 2d, at 536. Another good example is provided by where a Magistrate erroneously concluded that the offense of criminal trespass under Idaho law requires a showing that the defendant did something to justify the property owner’s request for the defendant to leave the premises. 716–717, 136–137. There is no question that the Magistrate in Korsen “effectively created an additional statutory element” before concluding that the prosecution had presented insufficient evidence as to this purported “element.” See (holding that double jeopardy did not bar a retrial because the Magistrate’s “finding did not actually determine in [defendant’s] favor any of the essen- tial elements of the crime of trespass”). Cases in which it can be said that a trial judge did not simply misinterpret a real element of an offense but in- stead invented an entirely new and nonexistent “element” 12 EVANS v. MICHIGAN ALITO, J., dissenting are cases in which the judge’s error is particularly egre- gious. Permitting retrial in these egregious cases is espe- cially appropriate. * * * I would hold that double jeopardy protection is not triggered by a judge’s erroneous preverdict ruling that creates an “element” out of thin air and then holds that the element is not satisfied. I therefore respectfully dissent

Justice Harlan

concurring

Carter v. West Feliciana Parish School Bd.

https://www.courtlistener.com/opinion/108024/carter-v-west-feliciana-parish-school-bd/

https://www.courtlistener.com/api/rest/v3/clusters/108024/

1969-023

I join the Court's order. I agree that the action of the Court of Appeals in these cases does not fulfill the requirements of our recent decision in Alexander v. Holmes County Board of Education, ante, p. 19, and accordingly that the judgments below cannot stand. However, in fairness to the Court of Appeals and to the parties, and with a view to giving further guidance to litigants in future cases of this kind, I consider that something more is due to be said respecting the intended effect of the Alexander decision. Since the Court has not seen fit to do so, I am constrained to set forth at least my own understanding of the procedure to be followed in these cases. Because of the shortness of the time available, I must necessarily do this in a summary way. The intent of Alexander, as I see it, was that the burden in actions of this type should be shifted from plaintiffs, seeking redress for a denial of constitutional *292 rights, to defendant school boards. What this means is that upon a prima facie showing of noncompliance with this Court's holding in Green v. County School Board of New Kent County, 391 U.S. 430 (1968), sufficient to demonstrate a likelihood of success at trial, plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. Cf. Magnum Import Co. v. Coty, 262 U.S. 159 (1923). Such relief, I believe it was intended, should consist of an order providing measures for achieving disestablishment of segregated school systems, and should, if appropriate, include provisions for pupil and teacher reassignments, rezoning, or any other steps necessary to accomplish the desegregation of the public school system as required by Green. Graduated implementation of the relief is no longer constitutionally permissible. Such relief shall become effective immediately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system. It was contemplated, I think, that in determining the character of such relief the courts may consider submissions of the parties or any recommendations of the Department of Health, Education, and Welfare that may exist or may request proposals from the Department of Health, Education, and Welfare. If Department recommendations are already available the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the courts shall devise measures to provide the required relief. It would suffice that such measures will tend to accomplish the goals set forth in Green, and, if they are less than educationally perfect, proposals for amendments may thereafter be made. Such proposals for amendments are in *293 no way to suspend the relief granted in accordance with the requirements of Alexander. Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief. Were the recent orders of the Court of Appeals for the Fifth Circuit in United States v. Hinds County School Board, 423 F.2d 1264 (November 7, 1969), and that of the Fourth Circuit in Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (December 2, 1969), each implementing in those cases our decision in Alexander, to be taken as a yardstick, this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Green case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately eight weeks. This, I think, is indeed the "maximum" timetable established by the Court today for cases of this kind. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL express their disagreement with the opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE WHITE. They believe that those views retreat from our holding in Alexander v. Holmes County Board of Education, ante, at 20, that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." Memorandum of THE CHIEF JUSTICE and MR. JUSTICE STEWART. We would not peremptorily reverse the judgments of the Court of Appeals for the Fifth Circuit. That court, sitting en banc and acting unanimously after our decision *294 in Alexander v. Holmes County Board of Education, ante, p. 19, has required the respondents to effect desegregation in their public schools by February 1, 1970, save for the student bodies, which are to be wholly desegregated during the current year, no later than September. In light of the measures the Court of Appeals has directed the respondent school districts to undertake, with total desegregation required for the upcoming school year, we are not prepared summarily to set aside its judgments. That court is far more familiar than we with the various situations of these several school districts, some large, some small, some rural, and some metropolitan, and has exhibited responsibility and fidelity to the objectives of our holdings in school desegregation cases. To say peremptorily that the Court of Appeals erred in its application of the Alexander doctrine to these cases, and to direct summary reversal without argument and without opportunity for exploration of the varying problems of individual school districts, seems unsound to us.

I join the Court's order. I agree that the action of the Court of Appeals in these cases does not fulfill the requirements of our recent decision in Alexander v. Holmes County Board of Education, ante, p. 19, and accordingly that the judgments below cannot stand. However, in fairness to the Court of Appeals and to the parties, and with a view to giving further guidance to litigants in future cases of this kind, I consider that something more is due to be said respecting the intended effect of the Alexander decision. Since the Court has not seen fit to do so, I am constrained to set forth at least my own understanding of the procedure to be followed in these cases. Because of the shortness of the time available, I must necessarily do this in a summary way. The intent of Alexander, as I see it, was that the burden in actions of this type should be shifted from plaintiffs, seeking redress for a denial of constitutional *292 rights, to defendant school boards. What this means is that upon a prima facie showing of noncompliance with this Court's holding in sufficient to demonstrate a likelihood of success at trial, plaintiffs may apply for immediate relief that will at once extirpate any lingering vestiges of a constitutionally prohibited dual school system. Cf. Magnum Import Such relief, I believe it was intended, should consist of an order providing measures for achieving disestablishment of segregated school systems, and should, if appropriate, include provisions for pupil and teacher reassignments, rezoning, or any other steps necessary to accomplish the desegregation of the public school system as required by Green. Graduated implementation of the relief is no longer constitutionally permissible. Such relief shall become effective immediately after the courts, acting with dispatch, have formulated and approved an order that will achieve complete disestablishment of all aspects of a segregated public school system. It was contemplated, I think, that in determining the character of such relief the courts may consider submissions of the parties or any recommendations of the Department of Health, Education, and Welfare that may exist or may request proposals from the Department of Health, Education, and Welfare. If Department recommendations are already available the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the courts shall devise measures to provide the required relief. It would suffice that such measures will tend to accomplish the goals set forth in Green, and, if they are less than educationally perfect, proposals for amendments may thereafter be made. Such proposals for amendments are in *293 no way to suspend the relief granted in accordance with the requirements of Alexander. Alexander makes clear that any order so approved should thereafter be implemented in the minimum time necessary for accomplishing whatever physical steps are required to permit transfers of students and personnel or other changes that may be necessary to effectuate the required relief. Were the recent orders of the Court of Appeals for the Fifth Circuit in United and that of the Fourth Circuit in each implementing in those cases our decision in Alexander, to be taken as a yardstick, this would lead to the conclusion that in no event should the time from the finding of noncompliance with the requirements of the Green case to the time of the actual operative effect of the relief, including the time for judicial approval and review, exceed a period of approximately eight weeks. This, I think, is indeed the "maximum" timetable established by the Court today for cases of this kind. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL express their disagreement with the opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE WHITE. They believe that those views retreat from our holding in Alexander v. Holmes County Board of Education, ante, at 20, that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." Memorandum of THE CHIEF JUSTICE and MR. JUSTICE STEWART. We would not peremptorily reverse the judgments of the Court of Appeals for the Fifth Circuit. That court, sitting en banc and acting unanimously after our decision *294 in Alexander v. Holmes County Board of Education, ante, p. 19, has required the respondents to effect desegregation in their public schools by February 1, 1970, save for the student bodies, which are to be wholly desegregated during the current year, no later than September. In light of the measures the Court of Appeals has directed the respondent school districts to undertake, with total desegregation required for the upcoming school year, we are not prepared summarily to set aside its judgments. That court is far more familiar than we with the various situations of these several school districts, some large, some small, some rural, and some metropolitan, and has exhibited responsibility and fidelity to the objectives of our holdings in school desegregation cases. To say peremptorily that the Court of Appeals erred in its application of the Alexander doctrine to these cases, and to direct summary reversal without argument and without opportunity for exploration of the varying problems of individual school districts, seems unsound to us.

Justice Rehnquist

majority

Train v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/109238/train-v-natural-resources-defense-council-inc/

https://www.courtlistener.com/api/rest/v3/clusters/109238/

1974-083

We granted certiorari in this case, 419 U.S. 823 (1974), to review a judgment of the Court of Appeals for the Fifth Circuit which required petitioner Administrator of the Environmental Protection Agency to disapprove a portion of the implementation plan submitted to him by the State of Georgia pursuant to the Clean Air Amendments of 1970.[1] The case presents an issue of statutory construction which is illuminated by the anatomy of the statute itself, by its legislative history, and by the history of congressional efforts to control air pollution. I Congress initially responded to the problem of air pollution by offering encouragement and assistance to the States. In 1955 the Surgeon General was authorized to study the problem of air pollution, to support research, training, and demonstration projects, and to provide technical assistance to state and local governments attempting to abate pollution. 69 Stat. 322. In 1960 Congress directed the Surgeon General to focus his attention on the health hazards resulting from motor vehicle emissions. Pub. L. 86-493, 74 Stat. 162. The Clean Air Act of 1963, 77 Stat. 392, authorized federal authorities to expand their research efforts, to make grants to state air pollution *64 control agencies, and also to intervene directly to abate interstate pollution in limited circumstances. Amendments in 1965, § 101, 79 Stat. 992, and in 1966, 80 Stat. 954, broadened federal authority to control motor vehicle emissions and to make grants to state pollution control agencies. The focus shifted somewhat in the Air Quality Act of 1967, 81 Stat. 485. It reiterated the premise of the earlier Clean Air Act "that the prevention and control of air pollution at its source is the primary responsibility of States and local governments." Ibid. Its provisions, however, increased the federal role in the prevention of air pollution, by according federal authorities certain powers of supervision and enforcement. But the States generally retained wide latitude to determine both the air quality standards which they would meet and the period of time in which they would do so. The response of the States to these manifestations of increasing congressional concern with air pollution was disappointing. Even by 1970, state planning and implementation under the Air Quality Act of 1967 had made little progress. Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1676, enacted on December 31 of that year. These Amendments sharply increased federal authority and responsibility in the continuing effort to combat air pollution. Nonetheless, the Amendments explicitly preserved the principle: "Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . . ." § 107 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S. C. § 1857c-2 (a). The difference under the Amendments was that the States were no longer given any choice as to whether they would meet this responsibility. For the first time they were required to *65 attain air quality of specified standards, and to do so within a specified period of time. The Amendments directed that within 30 days of their enactment the Environmental Protection Agency should publish proposed regulations describing national quality standards for the "ambient air," which is the statute's term for the outdoor air used by the general public. After allowing 90 days for comments on the proposed standards, the Agency was then obliged to promulgate such standards. § 109 (a) (1) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S. C. § 1857c-4 (a) (1). The standards were to be of two general types: "primary" standards, which in the judgment of the Agency were "requisite to protect the public health," § 109 (b) (1), and "secondary" standards, those that in the judgment of the Agency were "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." § 109 (b) (2). Within nine months after the Agency's promulgation of primary and secondary air quality standards, each of the 50 States was required to submit to the Agency a plan designed to implement and maintain such standards within its boundaries. § 110 (a) (1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S. C. § 1857c-5 (a) (1). The Agency was in turn required to approve each State's plan within four months of the deadline for submission, if it had been adopted after public hearings and if it satisfied eight general conditions set forth in § 110 (a) (2).[2]*66 Probably the principal of these conditions, and the heart of the 1970 Amendments, is that the plan provide for the attainment of the national primary ambient air *67 quality standards in the particular State "as expeditiously as practicable but . . . in no case later than three years from the date of approval of such plan." § 110 (a) (2) (A). In providing for such attainment, a State's plan must include "emission limitations, schedules, and timetables for compliance with such limitations"; it must also contain such other measures as may be necessary to insure both timely attainment and subsequent maintenance of national ambient air standards. § 110 (a) (2) (B). Although the Agency itself was newly organized, the States looked to it for guidance in formulating the plans they were required to submit. On April 7, 1971—scarcely three months after the enactment of the Clean Air Amendments—the Agency published proposed guidelines for the preparation, adoption, and submission of such plans. 36 Fed. Reg. 6680. After receiving numerous comments, including those from respondent Natural Resources Defense Council, Inc. (NRDC), it issued final guidelines on August 14, 1971, 36 Fed. Reg. 1586. See 40 CFR Part 51 (1974). The national standards themselves were timely promulgated on April 30, 1971, 36 Fed. Reg. 8186. See 40 CFR Part 50 (1974). *68 No one can doubt that Congress imposed upon the Agency and States a comprehensive planning task of the first magnitude which was to be accomplished in a relatively short time. In the case of the States, it was soon realized that in order to develop the requisite plans within the statutory nine-month deadline, efforts would have to be focused on determining the stringent emission limitations necessary to comply with national standards. This was true even though compliance with the standards would not be necessary until the attainment date, which normally would be three years after Agency approval of a plan. The issue then arose as to how these stringent limitations, which often could not be satisfied without substantial research and investment, should be applied during the period prior to that date. One approach was that adopted by Florida, under which the plan's emission limitations would not take effect until the attainment date. Under this approach, no source is subject to enforcement actions during the preattainment period, but all are put on notice of the limitations with which they must eventually comply.[3] Since the Florida approach basically does not require preattainment date pollution reductions on the part of those sources which might be able to effect them,[4] the Agency encouraged an alternative approach. Under it a State's emission limitations would be immediately effective. The State, however, *69 would have the authority to grant variances to particular sources which could not immediately comply with the stringent emission limitations necessary to meet the standards. Georgia chose the Agency's preferred approach.[5] Its plan provided for immediately effective categorical emission limitations, but also incorporated a variance procedure whereby particular sources could obtain individually tailored relief from general requirements. This variance provision, Ga. Code Ann. § 88-912 (1971),[6] was one of the *70 bases upon which the Agency's approval of the Georgia plan was successfully challenged by respondents in the Court of Appeals. It is the only aspect of that court's decision as to which the Agency petitioned for certiorari. II The Agency's approval of Georgia's variance provision was based on its interpretation of § 110 (a) (3),[7] which provides that the Agency shall approve any revision of an implementation plan which meets the § 110 (a) (2) requirements applicable to an original plan. The Agency concluded that § 110 (a) (3) permits a State to grant individual variances from generally applicable emission standards, both before and after the attainment date, so long as the variance does not cause the plan to fail to comply with the requirements of § 110 (a) (2). Since that section requires, inter alia, that primary ambient air standards be attained by a particular date, it is of some consequence under this approach whether the period for which the variance is sought extends beyond that date. If it does not, the practical effect of treating such preattainment date variances as revisions is that they can be granted rather freely. This interpretation of § 110 (a) (3) was incorporated in the Agency's original guidelines for implementation *71 plans, 40 CFR §§ 51.6 (c), 51.32 (f) (1973).[8] Although a spokesman for respondent NRDC had earlier stated that the Agency's guideline in this regard "correctly provides that variances which do not threaten attainment of a national standard are to be considered revisions of the plan,"[9] that organization later developed second thoughts on the matter. Its present position, in which it is joined by another environmental organization and by two individual respondents who reside in affected air quality control regions within the State of Georgia, is that variances applicable to individual sources may be approved only if they meet the stringent procedural and substantive standards of § 110 (f).[10] This section permits one-year "postponements" of any requirement of a plan, subject to conditions which will be discussed below. The Court of Appeals agreed with respondents, and ordered the Agency to disapprove Georgia's variance provision, although it did not specify which of the § 110 (a) (2) requirements were thereby violated.[11] It held *72 that while the revision authority of § 110 (a) (3) was available for generally applicable changes of an implementation plan, the postponement provision of § 110 (f) was the only method by which individual sources could obtain relief from applicable emission limitations. In reaching this conclusion the court rejected petitioners' suggestion that whether a proposed variance should be treated as a "revision" under § 110 (a) (3), or as a "postponement" under § 110 (f), depended on whether it would affect attainment of a national ambient air standard, rather than on whether it applied to one source or to many. Other Circuits have also been confronted with this issue, and while none has adopted the Agency's position, all have differed from the Fifth Circuit. The first case was Natural Resources Defense Council v. EPA, 478 F.2d 875 (CA1 1973). For reasons to be discussed, infra, at 91-94, the First Circuit rejected the revision authority as a basis for a variance procedure. It nonetheless concluded that prior to the three-year date for mandatory attainment of primary standards, a State could grant variances to sources which could not immediately meet applicable emission limitations. The court reasoned: "We can see value in permitting a state to impose strict emission limitations now, subject to individual exemptions if practicability warrants; otherwise it may be forced to adopt less stringent limitations in order to accommodate those who, notwithstanding reasonable efforts, are as yet unable to comply. "The Administrator sees his power to allow such exemption procedures as deriving from the `revision' authority in § [110] (a) (3). We tend to view it more as a necessary adjunct to the statutory scheme, which anticipates greater flexibility during the preattainment period." 478 F.2d, at 887. *73 The First Circuit's resolution, which has been described as "Solomonesque," is not tied to any specific provision of the Clean Air Act. Rather, it is quite candidly a judicial creation providing flexibility which, according to its creators, Congress may be inferred to have intended to provide. Two other Circuits subsequently followed the First Circuit. Natural Resources Defense Council v. EPA, 483 F.2d 690, 693-694 (CA8 1973); Natural Resources Defense Council v. EPA, 494 F.2d 519, 523 (CA2 1974). Neither expanded on the First Circuit's reasoning. The Ninth Circuit has adopted a third approach to this question, in Natural Resources Defense Council v. EPA, 507 F.2d 905, 911-917 (1974). After considering legislative history, the Ninth Circuit concluded that Congress did not intend the postponement mechanism to be the exclusive source for variances. But the court also did not adopt the Agency's view that variances could be authorized as § 110 (a) (3) revisions, although it did not explain its rejection of this interpretation. Rather, the Ninth Circuit agreed with the First Circuit that flexibility was "a necessary adjunct to the statutory scheme." It explained: "As long as a possible variance from a state plan will not preclude the attainment or maintenance of such standards, we discern no legislative intent to commit a state, in toto, to its initial plan, without any flexibility whatsoever." 507 F.2d, at 913. The Ninth Circuit, however, rejected the First Circuit's distinction between the preattainment and postattainment periods. It concluded that statutory support for flexibility was as strong after the attainment date as before, especially in light of the Act's encouragement of the States to adopt plans even stricter than those required *74 to attain national standards.[12] The court thus adopted an approach which differs from the Agency's, but which reaches the same result—authorization of variances on standards other than those required for § 110 (f) postponements, both before and after the attainment date, so long as the variance does not prevent timely attainment and subsequent maintenance of national ambient air standards. After the Courts of Appeals for the First, Eighth, Fifth, and Second Circuits had spoken, but prior to the decision of the Ninth Circuit, the Agency modified its guidelines to comply with the then-unanimous rulings that after the attainment date the postponement provision was the only basis for obtaining a variance. 39 Fed. Reg. 34533-34535, adding 40 CFR §§ 51.11 (g), 51.15 (d) and revising § 51.32 (f). At the same time, the Agency formally disapproved variance provisions to the extent they authorized variances extending beyond attainment dates, unless the standards of § 110 (f) were met. 39 Fed. Reg. 34535, adding 40 CFR § 52.26. Because the Agency has conformed its regulations to the decisions of the First, Eighth, and Second Circuits, this case on its facts is now limited to the validity of the Georgia variance provision insofar as it authorizes variances effective before Georgia's attainment date, which is in July 1975.[13] The Agency nonetheless has not abandoned its original view that the revision section authorizes variances which do not interfere with the attainment or maintenance of national ambient air standards. Moreover, the Agency is candid in admitting that should we *75 base our decision on its interpretation of § 110 (a) (3), the decision would support the approval of implementation plans which provide for variances effective after the attainment date. The disparity among the Courts of Appeals rather strongly indicates that the question does not admit of an easy answer. Without going so far as to hold that the Agency's construction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts. III Both of the sections in controversy are contained in § 110 of the amended Clean Air Act, which is entitled "Implementation Plans." Section 110 (a) (3) provides in pertinent part: "(A) The Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirement of paragraph (2) and has been adopted by the State after reasonable notice and public hearings." Section 110 (f) provides: "(1) Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicability of such requirement to such source (or class) for not more than one year. If the Administrator determines that— "(A) good faith efforts have been made to comply with such requirement before such date, "(B) such source (or class) is unable to comply *76 with such requirement because the necessary technology or other alternative methods of control are not available or have not been available for a sufficient period of time, "(C) any available alternative operating procedures and interim control measures have reduced or will reduce the impact of such source on public health, and "(D) the continued operation of such source is essential to national security or to the public health or welfare, "then the Administrator shall grant a postponement of such requirement."[14] *77 As previously noted, respondents contend that "variances" applicable to individual sources—for example, a particular factory—may be approved only if they meet the stringent procedural and substantive standards set forth in § 110 (f). As is apparent from the text of § 110 (f), its postponements may be for no more than one year, may be granted only if application is made prior to the date of required compliance, and must be supported by the Agency's determination that the source's continued operation "is essential to national security or to the public health or welfare." Petitioners, on the other hand, rely on the revision authority of § 110 (a) (3) for the contention that a state plan may provide for an individual variance from generally applicable emission limitations so long as the variance does not cause the plan to fail to comply with the requirements of § 110 (a) (2). Since a variance would normally implicate only the § 110 (a) (2) (A) requirement that plans provide for attainment and maintenance of national ambient air standards, treatment as revisions would result in variances being readily approved in two situations: first, where the variance does not defer compliance beyond the attainment date;[15] and second, where the national standards have been attained and the variance is not so great that a plan incorporating it could not insure their continued maintenance. Moreover, a § 110 (a) (3) revision may be granted on the basis of hearings conducted by the State, whereas a § 110 (f) *78 postponement is available only after the Agency itself conducts hearings. There is thus considerable practical importance attached to the issue of whether variances are to be treated as revisions or as postponements, or for that matter, as the First Circuit would have it, as neither until the mandatory attainment date but as postponements thereafter. This practical importance reaches not merely the operator of a particular source who believes that circumstances justify his receiving a variance from categorical limitations. It also reaches the broader issue of whether Congress intended the States to retain any significant degree of control of the manner in which they attain and maintain national standards, at least once their initial plans have been approved or, under the First Circuit's approach, once the mandatory attainment date has arrived. To explain our conclusion as to Congress' intent, it is necessary that we consider the revision and postponement sections in the context of other provisions of the amended Clean Air Act, particularly those which distinguish between national ambient air standards and emission limitations. As we have already noted, primary ambient air standards deal with the quality of outdoor air, and are fixed on a nationwide basis at levels which the Agency determines will protect the public health. It is attainment and maintenance of these national standards which § 110 (a) (2) (A) requires that state plans provide. In complying with this requirement a State's plan must include "emission limitations," which are regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. *79 The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met.[16] Under § 110 (a) (2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110 (a) (2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. § 110 (c). Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. This analysis of the Act's division of responsibilities is not challenged by respondents insofar as it concerns the process of devising and promulgating an initial implementation *80 plan. Respondents do, however, deny that the States have such latitude once the initial plan is approved. Yet the third paragraph of § 110 (a), and the one immediately following the paragraphs which specify that States shall file implementation plans and that the Agency shall approve them if they satisfy certain broad criteria, is the section which requires the Agency to "approve any revision of an implementation plan" if it "determines that it meets the requirements" of § 110 (a) (2). On its face, this provision applies to any revision, without regard either to its breadth of applicability, or to whether it is to be effective before or after the attainment date; rather, Agency approval is subject only to the condition that the revised plan satisfy the general requirements applicable to original implementation plans. Far from evincing congressional intent that the Agency assume control of a State's emission limitations mix once its initial plan is approved, the revision section is to all appearances the mechanism by which the States may obtain approval of their developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards. In order to challenge this characterization of § 110 (a) (3), respondents principally rely on the contention that the postponement provision, § 110 (f), is the only mechanism by which exceptions to a plan's requirements may be obtained, under any circumstances. Were this an accurate description of § 110 (f), we would agree that the revision authority does not have the broad application asserted by the Agency. Like the Ninth Circuit,[17] however, we believe that § 110 (f) serves a function different from that of supervising state efforts to modify the initial *81 mix of emission limitations by which they implement national standards. In our view, § 110 (f) is a safety valve by which may be accorded, under certain carefully specified circumstances, exceptions to the national standards themselves. That this is its role is strongly suggested by the process by which it became a part of the Clean Air Act. The House version of the Amendment, H. R. 17255, 91st Cong., 2d Sess., contained no provisions for either postponements or, most significantly, mandatory deadlines for the attainment of national ambient air standards. The Senate bill, S. 4358, 91st Cong., 2d Sess., did contain both the three-year deadline, which now appears in § 110 (a) (2), and the predecessor of the present § 110 (f). That predecessor[18] permitted the governor of a *82 State to petition a three-judge district court for "relief from the effect" of expiration of the three-year deadline as to a region or persons, and provided for the grant of such relief upon a showing of conditions similar to those *83 now appearing in § 110 (f). Under its language the postponement provision plainly applied only when deferral of a national deadline was sought.[19] The Conference Committee adopted the Senate's general approach to the deadline issue. Its report states: "The conference substitute follows the Senate amendment is establishing deadlines for implementing primary ambient air quality standards but leaves the States free to establish a reasonable time period within which secondary ambient air quality standards will be implemented. The conference substitute modifies the Senate amendment in that it allows the Administrator to grant extensions for good causes shown upon application by the Governors." H. R. Conf. Rep. No. 91-1783, p. 45 (1970). (Emphasis added.) Nowhere does the report suggest that other changes in the Senate's proposed § 111 (f) were intended to dramatically broaden its reach, such that it would not merely be available to obtain deferral of the strict deadlines for compliance with national standards, but would also be the exclusive mechanism for any ameliorative modification of a plan, no matter how minor. *84 That the postponement provision was intended merely as a method of escape from the mandatory deadlines becomes even clearer when one considers the summary of the conference's work which Senator Muskie presented to the Senate. The summary referred to a provision under which a single two-year extension of the deadline could be obtained were it shown to be necessary at the time a State's initial plan was submitted. It then immediately discussed the postponement provision, as follows: "A Governor may also apply for a postponement of the deadline if, when the deadline approaches, it is impossible for a source to meet a requirement under an implementation plan, interim control measures have reduced (or will reduce) the adverse health effects of the source, and the continued operation of the source is essential to national security or the public health or welfare of that State." 116 Cong. Rec. 42384-42385. (Emphasis added.) This limited view of the role of § 110 (f) is reinforced by comparison with the section which immediately precedes it in the statute, § 110 (e).[20] This is the provision *85 to which Senator Muskie's summary was obviously referring when it stated that the three-year deadline could be extended for up to two years if proper application were made at the time a State first submitted its plan. Like § 110 (f), § 110 (e) is available only if an emission source is unable to comply with plan requirements because "the necessary technology or other alternatives are not available or will not be available soon enough to permit compliance." Section 110 (e) also contains a requirement parallel to that of § 110 (f) (1) (C), that available alternative procedures and control measures have been considered and utilized. Unlike § 110 (f), however, § 110 (e) contains no requirement that "the continued operation of such source is essential to national security or to the public health or welfare." Section 110 (e) thus permits a two-year extension on a showing considerably less stringent than that required for a § 110 (f) one-year postponement. This disparity is quite logical, however, because the relief under § 110 (e) is limited to an initial two-year period, whereas that under § 110 (f) is available at any time, so long as application is made prior to the effective date of the relevant requirement.[21] *86 On the other hand, the disparity between the standards of § 110 (e) and those of § 110 (f) would be inexplicable were § 110 (f) also the sole mechanism by which States could modify the particular emission limitations mix incorporated in their initial implementation plans, even though the desired modifications would have no impact on the attainment or maintenance of national standards. Respondents' interpretation requires the anomalous conclusion that Congress, having stated its goal to be the attainment and maintenance of specified ambient air standards, nonetheless made it significantly more difficult for a State to modify an emission limitations mix which met those standards both before and after modification than for a State to obtain a two-year deferral in the attainment of the standards themselves. The interpretation suffers, therefore, not only from its contrariety to the revision authority which Congress provided, but also from its willingness to ascribe inconsistency to a carefully considered congressional enactment. We believe that the foregoing analysis of the structure and legislative history of the Clean Air Amendments shows that Congress intended to impose national ambient air standards to be attained within a specific period of time. It also shows that in §§ 110 (e) and (f) Congress carefully limited the circumstances in which timely attainment and subsequent maintenance of these standards could be compromised. We also believe that Congress, consistent with its declaration that "[e]ach State *87 shall have the primary responsibility for assuring air quality" within its boundaries, § 107 (a), left to the States considerable latitude in determining specifically how the standards would be met. This discretion includes the continuing authority to revise choices about the mix of emission limitations. We therefore conclude that the Agency's interpretation of §§ 110 (a) (3) and 110 (f) was "correct," to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the "correct" one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency. Udall v. Tallman, 380 U.S. 1, 16-18 (1965); McLaren v. Fleischer, 256 U.S. 477, 480-481 (1921). We are not persuaded to the contrary by any of the arguments advanced by respondents or by the Courts of Appeals which have rejected § 110 (a) (3) as authority for granting variances. To these various arguments we now turn. IV The principal basis on which the Fifth Circuit rejected the Agency's view of the revision and postponement sections was its analysis of their language. The court focused first on the fact that § 110 (f) speaks in terms of "any stationary source," and of the postponement of "any requirement of an applicable implementation plan." (Emphasis added.) This language, according to the Fifth Circuit, belies the Agency's contention that the postponement section is inapplicable to those variances which do not jeopardize the attainment or maintenance *88 of national standards. The court went on to state, without citation or supporting reasoning: "A revision is a change in a generally applicable requirement; a postponement or variance [is a] change in the application of a requirement to a particular party. The distinction between the two is familiar and clear." 489 F.2d 390, 401. We think that the Fifth Circuit has read more into § 110 (f), and more out of § 110 (a) (3), than careful analysis can sustain. In the first place, the "any stationary source" and "any requirement" language of § 110 (f) serves only to define the matters with respect to which the governor of a State may apply for a postponement. The language does not, as the Fifth Circuit would have it, state that all sources desirous of any form of relief must rely solely on the postponement provision. While § 110 (f) makes its relief available to any source which can qualify for it, regardless of whether the relief would jeopardize national standards, the section does not even suggest that other forms of relief, having no impact on the national goal of achieving air quality standards, are not also available on appropriately less rigorous showings. As for the Fifth Circuit's observation that "a revision is a change in a generally applicable requirement," whereas a "postponement or variance" deals with particular parties, we are not satisfied that the distinction is so "familiar and clear." While a variance is generally thought to be of specific applicability,[22] whether a revision *89 is general or specific depends on what is being revised. In this instance, it is implementation plans which are being revised, and it is clear that such plans may be quite detailed, both as to sources and the remedial steps required of the sources. Not only does § 110 (a) (2) (B) specify that a plan shall include "emission limitations, schedules, and timetables for compliance,"[23] but respondents themselves have urged that the very specific variances which have already been granted in Georgia should have been, and may still be, treated as "compliance schedules" contained within the original plan.[24] A further difficulty with the Fifth Circuit's analysis of the language of §§ 110 (a) (3) and 110 (f) is that it entirely overlooks an obvious distinction between revisions and postponements. In normal usage, to "postpone" is to defer, whereas to "revise" is to remake or amend. In the implementation plan context, normal usage would suggest that a postponement is a deferral of the effective date of a requirement which remains a part of the applicable plan, whereas a revision is a change in the plan itself which deletes or modifies the requirement. If by revision a requirement of a plan is removed, then a person seeking relief from that requirement has no *90 need to seek its postponement, and § 110 (f) is by its terms inapplicable. But if such a person cannot obtain a revision, because for example the plan as so revised would no longer insure timely attainment of the national standards, then under the Act he has no alternative but to comply or to obtain a postponement of the requirement's effective date—if he can satisfy the stringent conditions of § 110 (f). This distinction between the two is so straightforward, and so consistent with the structure and history of the Act, as discussed in Part III of this opinion, that we perceive no basis for the Fifth Circuit's strained line of analysis.[25] The Fifth Circuit also relied on the "technology forcing" nature of the Clean Air Amendments of 1970. It reasoned that because the statute was intended to force technology to meet specified, scheduled standards, *91 it was essential to insure that commitments made at the planning stage could not be readily abandoned when the time for compliance arrived. According to the Fifth Circuit, § 110 (f) "is the device Congress chose to assure this." 489 F.2d, at 401. Clearly § 110 (f) does present a formidable hurdle for those proposed departures from earlier commitments which are in fact subject to its stringent conditions. What the Fifth Circuit failed to consider, however, is that so long as the national standards are being attained and maintained, there is no basis in the present Clean Air Act for forcing further technological developments. Agency review assures that variances granted under § 110 (a) (3) will be consistent with the § 110 (a) (2) (A) requirement that the national standards be attained as expeditiously as practicable and maintained thereafter. Thus § 110 (a) (3) variances ex hypothesi do not jeopardize national standards, and the technology-forcing character of the Amendments is no reason at all for judging them under the provisions of § 110 (f). The First Circuit also rejected the Agency's contention that variances could be handled under the revision procedure, supra, at 72-73, but it did so for reasons different from those relied upon by the Fifth Circuit.[26] It stated: "Had Congress meant [§ 110 (f)] to be followed only if a polluter, besides violating objective state *92 requirements, was shown to be preventing maintenance of a national standard, it would have said so. To allow a polluter to raise and perhaps litigate that issue is to invite protracted delay. The factual question could have endless refinements: is it the individual variance-seeker or others whose pollution is preventing maintenance of standards? See e. g., Getty Oil Company v. Ruckelshaus, 342 F. Supp. 1006 (D. Del. 1972), remanded with directions, 467 F.2d 349 (3rd Cir. 1972), . . . where Getty raised this issue in various forums." 478 F.2d, at 886. Respondents also stress this argument: treating variances as revisions rather than as postponements would invite litigation, would be impractical in application, and would therefore result in degradation of the environment. Aside from the fact that it goes more to the wisdom of what Congress has chosen to do than to determining what Congress has done, we believe this argument to be overstated. As made clear in the Getty case cited by the First Circuit, a polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's, for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures.[27] *93 We are further impressed that the Agency itself has displayed no concern for the purported administrative difficulty of treating variances as revisions. Ordinarily, an agency may be assumed capable of meeting the responsibilities which it contends are placed upon it. Were respondents able to make a contrary showing, that fact might have some weight in interpreting Congress' intent, although we would doubt its relevance unless Congress were also shown to have been aware of the problem when it drafted legislation which otherwise is consistent with the Agency's contentions. Respondents have made no such showings. The judgments which the Agency must make when passing on variances under § 110 (a) (3) are whether the ambient air complies with national standards, and if so whether a proposed variance would cause a plan to fail to insure maintenance of those standards. These judgments are little different from those which the Agency had to make when it approved the initial plans into which respondents seek to have the States frozen. In each instance the Agency must measure the existing level of pollution, compare it with the national standards, and determine the effect on this comparison of specified emission modifications.[28] That Congress is of the opinion *94 that the Agency can feasibly and reliably perform these functions is manifest not only in its 1970 legislation, but also in a 1974 amendment designed to conserve energy. The amendment provides that the Agency should report to each State on whether its implementation plan could be revised in relation to fuel burning stationary sources, "without interfering with the attainment and maintenance of any national ambient air quality standard." § 110 (a) (3) (B) of the Clean Air Act, as added, 88 Stat. 256, 42 U.S. C. § 1857c-5 (a) (3) (B) (1970 ed., Supp. IV). (Emphasis added.) V Respondents have put forward several additional arguments which have not been specifically adopted by any court of appeals. The first is based on legislative history. Respondents focus on the fact that while the Conference Committee accepted the Senate's concept of a three-year maximum deadline for attainment of national standards, *95 it also strengthened the Senate's provision by specifying that attainment should be achieved "as expeditiously as practicable but . . . in no case later than three years." (Emphasis added.) Respondents further make the contention that the Conference Committee altered the Senate's version of the postponement provision to "provide that a source's attempt to delay compliance with `any requirement' of a State Plan would be considered a `postponement.' " Brief for Respondents 36. According to respondents the latter change "was necessary to conform" the postponement provision with the Conference Committee's "as expeditiously as practicable" requirement.[29]*96 The argument is that because any variance would delay attainment of national standards beyond the date previously considered the earliest practicable, and that because the Act requires attainment as soon as practicable, any variance must therefore be treated as a postponement. This argument is not persuasive, for multiple reasons. First, this interpretation of the Conference Committee's work finds no specific support in legislative documents or debates. This is true despite the significance of the change which, under respondents' interpretation, was made—the expansion of § 110 (f) from a safety valve against mandatory deadlines into the exclusive mechanism by which a State could make even minor modifications of its emission limitations mix. Respondents' interpretation arises instead from their own reading of the statute and inferences as to legislative purpose. Second, as we have already discussed, and contrary to respondents' contention, § 110 (f) simply does not state that any deferral of compliance with "any requirement" of a state plan "would be considered a postponement." Rather, it merely states that a postponement may be sought with respect to any source and any requirement. Third, respondents' reading equates "practicable" in § 110 (a) (2) (A) with § 110 (f)'s "essential to national security or to the public health or welfare." Yet plainly there could be many circumstances in which attainment in less than three years would be impracticable, and thus not required, but in which deferral could not possibly be justified as essential to the national security, or public *97 health or welfare.[30] Fourth, the statute requires only attainment as expeditiously as practicable, not attainment as expeditiously as was thought practicable when the initial implementation plan was devised. Finally, even if respondents' argument had force with regard to a preattainment variance, it would still be of no relevance whatsoever once the national standards were attained. A variance which does not compromise national standards that have been attained does no damage to the congressional goals of attaining the standards as expeditiously as practicable and maintaining them thereafter. The last of respondents' arguments which merit our attention is related to the Fifth Circuit's conclusion that revisions are restricted to general requirements, and that all specific modifications must therefore be funneled through the postponement provision. Respondents go one step further and contend that the revision authority is limited not only to general changes, but to those which also are initiated by the Agency in order to "accelerate abatement or attain it in greater concert with other national goals." Brief for Respondents 26. This highly restrictive view of § 110 (a) (3) is based on § 110 (a) (2) (H),[31] which specifies that to obtain Agency approval *98 a State's plan must provide a mechanism for revision to take account of revised national standards, of more expeditious methods of achieving the standards, and of Agency determinations that a plan is substantially inadequate. The argument is specious. Section 110 (a) (2) (H) does nothing more than impose a minimum requirement that state plans be capable of such modifications as are necessary to meet the basic goal of cleansing the ambient air to the extent necessary to protect public health, as expeditiously as practicable within a three-year period. The section in no way prevents the States from also permitting ameliorative revisions which do not compromise the basic goal. Nor does it, by requiring a particular type of revision, preclude those of a different type. As we have already noted, § 110 (a) (3) requires the Agency to approve "any revision" which is consistent with § 110 (a) (2)'s minimum standards for an initial plan, and which the State adopted after reasonable public notice and hearing; no other restrictions whatsoever are placed on the Agency's duty to approve revisions.[32] VI For the foregoing reasons, the Court of Appeals for the Fifth Circuit was in error when it concluded that the postponement provision of § 110 (f) is the sole method by which may be obtained specific ameliorative modifications *99 of state implementation plans. The Agency had properly concluded that the revision mechanism of § 110 (a) (3) is available for the approval of those variances which do not compromise the basic statutory mandate that, with carefully circumscribed exceptions, the national primary ambient air standards be attained in not more than three years, and maintained thereafter. To the extent that the judgment of the Court of Appeals for the Fifth Circuit was to the contrary, it is reversed and the cause is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS dissents. MR. JUSTICE POWELL took no part in the consideration or decision of this case.

We granted certiorari in this case, to review a judgment of the Court of Appeals for the Fifth Circuit which required petitioner Administrator of the Environmental Protection Agency to disapprove a portion of the implementation plan submitted to him by the State of Georgia pursuant to the Clean Air Amendments of 1970.[1] The case presents an issue of statutory construction which is illuminated by the anatomy of the statute itself, by its legislative history, and by the history of congressional efforts to control air pollution. I Congress initially responded to the problem of air pollution by offering encouragement and assistance to the States. In 1955 the Surgeon General was authorized to study the problem of air pollution, to support research, training, and demonstration projects, and to provide technical assistance to state and local governments attempting to abate pollution. In 1960 Congress directed the Surgeon General to focus his attention on the health hazards resulting from motor vehicle emissions. Stat. 162. The Clean Air Act of 1963, authorized federal authorities to expand their research efforts, to make grants to state air pollution *64 control agencies, and also to intervene directly to abate interstate pollution in limited circumstances. Amendments in 1965, 101, and in 1966, broadened federal authority to control motor vehicle emissions and to make grants to state pollution control agencies. The focus shifted somewhat in the Air Quality Act of 1967, It reiterated the premise of the earlier Clean Air Act "that the prevention and control of air pollution at its source is the primary responsibility of States and local governments." Its provisions, however, increased the federal role in the prevention of air pollution, by according federal authorities certain powers of supervision and enforcement. But the States generally retained wide latitude to determine both the air quality standards which they would meet and the period of time in which they would do so. The response of the States to these manifestations of increasing congressional concern with air pollution was disappointing. Even by 1970, state planning and implementation under the Air Quality Act of 1967 had made little progress. Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970, Stat. 1676, enacted on December 31 of that year. These Amendments sharply increased federal authority and responsibility in the continuing effort to combat air pollution. Nonetheless, the Amendments explicitly preserved the principle: "Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State" 107 (a) of the Clean Air Act, as added, 42 U.S. C. 1857c-2 (a). The difference under the Amendments was that the States were no longer given any choice as to whether they would meet this responsibility. For the first time they were required to *65 attain air quality of specified standards, and to do so within a specified period of time. The Amendments directed that within 30 days of their enactment the Environmental Protection Agency should publish proposed regulations describing national quality standards for the "ambient air," which is the statute's term for the outdoor air used by the general public. After allowing 90 days for comments on the proposed standards, the Agency was then obliged to promulgate such standards. 109 (a) (1) of the Clean Air Act, as added, 42 U.S. C. 1857c-4 (a) (1). The standards were to be of two general types: "primary" standards, which in the judgment of the Agency were "requisite to protect the public health," 109 (b) (1), and "secondary" standards, those that in the judgment of the Agency were "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." 109 (b) (2). Within nine months after the Agency's promulgation of primary and secondary air quality standards, each of the 50 States was required to submit to the Agency a plan designed to implement and maintain such standards within its boundaries. 110 (a) (1) of the Clean Air Act, as added, 42 U.S. C. 1857c-5 (a) (1). The Agency was in turn required to approve each State's plan within four months of the deadline for submission, if it had been adopted after public hearings and if it satisfied eight general conditions set forth in 110 (a) (2).[2]*66 Probably the principal of these conditions, and the heart of the 1970 Amendments, is that the plan provide for the attainment of the national primary ambient air *67 quality standards in the particular State "as expeditiously as practicable but in no case later than three years from the date of approval of such plan." 110 (a) (2) (A). In providing for such attainment, a State's plan must include "emission limitations, schedules, and timetables for compliance with such limitations"; it must also contain such other measures as may be necessary to insure both timely attainment and subsequent maintenance of national ambient air standards. 110 (a) (2) (B). Although the Agency itself was newly organized, the States looked to it for guidance in formulating the plans they were required to submit. On April 7, 1971—scarcely three months after the enactment of the Clean Air Amendments—the Agency published proposed guidelines for the preparation, adoption, and submission of such plans. After receiving numerous comments, including those from respondent Natural Resources Defense Council, Inc. (NRDC), it issued final guidelines on August 14, 1971, See 40 CFR Part 51 The national standards themselves were timely promulgated on April 30, 1971, See 40 CFR Part 50 *68 No one can doubt that Congress imposed upon the Agency and States a comprehensive planning task of the first magnitude which was to be accomplished in a relatively short time. In the case of the States, it was soon realized that in order to develop the requisite plans within the statutory nine-month deadline, efforts would have to be focused on determining the stringent emission limitations necessary to comply with national standards. This was true even though compliance with the standards would not be necessary until the attainment date, which normally would be three years after Agency approval of a plan. The issue then arose as to how these stringent limitations, which often could not be satisfied without substantial research and investment, should be applied during the period prior to that date. One approach was that adopted by Florida, under which the plan's emission limitations would not take effect until the attainment date. Under this approach, no source is subject to enforcement actions during the preattainment period, but all are put on notice of the limitations with which they must eventually comply.[3] Since the Florida approach basically does not require preattainment date pollution reductions on the part of those sources which might be able to effect them,[4] the Agency encouraged an alternative approach. Under it a State's emission limitations would be immediately effective. The State, however, *69 would have the authority to grant variances to particular sources which could not immediately comply with the stringent emission limitations necessary to meet the standards. Georgia chose the Agency's preferred approach.[5] Its plan provided for immediately effective categorical emission limitations, but also incorporated a variance whereby particular sources could obtain individually tailored relief from general requirements. This variance provision, Ga. Code Ann. 88-912 (1971),[6] was one of the *70 bases upon which the Agency's approval of the Georgia plan was successfully challenged by respondents in the Court of Appeals. It is the only aspect of that court's decision as to which the Agency petitioned for certiorari. II The Agency's approval of Georgia's variance provision was based on its interpretation of 110 (a) (3),[7] which provides that the Agency shall approve any revision of an implementation plan which meets the 110 (a) (2) requirements applicable to an original plan. The Agency concluded that 110 (a) (3) permits a State to grant individual variances from generally applicable emission standards, both before and after the attainment date, so long as the variance does not cause the plan to fail to comply with the requirements of 110 (a) (2). Since that section requires, inter alia, that primary ambient air standards be attained by a particular date, it is of some consequence under this approach whether the period for which the variance is sought extends beyond that date. If it does not, the practical effect of treating such preattainment date variances as revisions is that they can be granted rather freely. This interpretation of 110 (a) (3) was incorporated in the Agency's original guidelines for implementation *71 plans, 40 CFR 51.6 51.32 (f)[8] Although a spokesman for respondent NRDC had earlier stated that the Agency's guideline in this regard "correctly provides that variances which do not threaten attainment of a national standard are to be considered revisions of the plan,"[9] that organization later developed second thoughts on the matter. Its present position, in which it is joined by another environmental organization and by two individual respondents who reside in affected air quality control regions within the State of Georgia, is that variances applicable to individual sources may be approved only if they meet the stringent procedural and substantive standards of 110 (f).[10] This section permits one-year "postponements" of any requirement of a plan, subject to conditions which will be discussed below. The Court of Appeals agreed with respondents, and ordered the Agency to disapprove Georgia's variance provision, although it did not specify which of the 110 (a) (2) requirements were thereby violated.[11] It held *72 that while the revision authority of 110 (a) (3) was available for generally applicable changes of an implementation plan, the postponement provision of 110 (f) was the only method by which individual sources could obtain relief from applicable emission limitations. In reaching this conclusion the court rejected petitioners' suggestion that whether a proposed variance should be treated as a "revision" under 110 (a) (3), or as a "postponement" under 110 (f), depended on whether it would affect attainment of a national ambient air standard, rather than on whether it applied to one source or to many. Other Circuits have also been confronted with this issue, and while none has adopted the Agency's position, all have differed from the Fifth Circuit. The first case was Natural Resources Defense For reasons to be discussed, infra, at 91-94, the First Circuit rejected the revision authority as a basis for a variance It nonetheless concluded that prior to the three-year date for mandatory attainment of primary standards, a State could grant variances to sources which could not immediately meet applicable emission limitations. The court reasoned: "We can see value in permitting a state to impose strict emission limitations now, subject to individual exemptions if practicability warrants; otherwise it may be forced to adopt less stringent limitations in order to accommodate those who, notwithstanding reasonable efforts, are as yet unable to comply. "The Administrator sees his power to allow such exemption s as deriving from the `revision' authority in [110] (a) (3). We tend to view it more as a necessary adjunct to the statutory scheme, which anticipates greater flexibility during the preattainment period." *73 The First Circuit's resolution, which has been described as "Solomonesque," is not tied to any specific provision of the Clean Air Act. Rather, it is quite candidly a judicial creation providing flexibility which, according to its creators, Congress may be inferred to have intended to provide. Two other Circuits subsequently followed the First Circuit. Natural Resources Defense ; Natural Resources Defense Neither expanded on the First Circuit's reasoning. The Ninth Circuit has adopted a third approach to this question, in Natural Resources Defense After considering legislative history, the Ninth Circuit concluded that Congress did not intend the postponement mechanism to be the exclusive source for variances. But the court also did not adopt the Agency's view that variances could be authorized as 110 (a) (3) revisions, although it did not explain its rejection of this interpretation. Rather, the Ninth Circuit agreed with the First Circuit that flexibility was "a necessary adjunct to the statutory scheme." It explained: "As long as a possible variance from a state plan will not preclude the attainment or maintenance of such standards, we discern no legislative intent to commit a state, in toto, to its initial plan, without any flexibility whatsoever." The Ninth Circuit, however, rejected the First Circuit's distinction between the preattainment and postattainment periods. It concluded that statutory support for flexibility was as strong after the attainment date as before, especially in light of the Act's encouragement of the States to adopt plans even stricter than those required *74 to attain national standards.[12] The court thus adopted an approach which differs from the Agency's, but which reaches the same result—authorization of variances on standards other than those required for 110 (f) postponements, both before and after the attainment date, so long as the variance does not prevent timely attainment and subsequent maintenance of national ambient air standards. After the Courts of Appeals for the First, Eighth, Fifth, and Second Circuits had spoken, but prior to the decision of the Ninth Circuit, the Agency modified its guidelines to comply with the then-unanimous rulings that after the attainment date the postponement provision was the only basis for obtaining a variance. -34535, adding 40 CFR 51.11 51.15 (d) and revising 51.32 (f). At the same time, the Agency formally disapproved variance provisions to the extent they authorized variances extending beyond attainment dates, unless the standards of 110 (f) were met. adding 40 CFR 52.26. Because the Agency has conformed its regulations to the decisions of the First, Eighth, and Second Circuits, this case on its facts is now limited to the validity of the Georgia variance provision insofar as it authorizes variances effective before Georgia's attainment date, which is in July 1975.[13] The Agency nonetheless has not abandoned its original view that the revision section authorizes variances which do not interfere with the attainment or maintenance of national ambient air standards. Moreover, the Agency is candid in admitting that should we *75 base our decision on its interpretation of 110 (a) (3), the decision would support the approval of implementation plans which provide for variances effective after the attainment date. The disparity among the Courts of Appeals rather strongly indicates that the question does not admit of an easy answer. Without going so far as to hold that the Agency's construction of the Act was the only one it permissibly could have adopted, we conclude that it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts. III Both of the sections in controversy are contained in 110 of the amended Clean Air Act, which is entitled "Implementation Plans." Section 110 (a) (3) provides in pertinent part: "(A) The Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirement of paragraph (2) and has been adopted by the State after reasonable notice and public hearings." Section 110 (f) provides: "(1) Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicability of such requirement to such source (or class) for not more than one year. If the Administrator determines that— "(A) good faith efforts have been made to comply with such requirement before such date, "(B) such source (or class) is unable to comply *76 with such requirement because the necessary technology or other alternative methods of control are not available or have not been available for a sufficient period of time, "(C) any available alternative operating s and interim control measures have reduced or will reduce the impact of such source on public health, and "(D) the continued operation of such source is essential to national security or to the public health or welfare, "then the Administrator shall grant a postponement of such requirement."[14] *77 As previously noted, respondents contend that "variances" applicable to individual sources—for example, a particular factory—may be approved only if they meet the stringent procedural and substantive standards set forth in 110 (f). As is apparent from the text of 110 (f), its postponements may be for no more than one year, may be granted only if application is made prior to the date of required compliance, and must be supported by the Agency's determination that the source's continued operation "is essential to national security or to the public health or welfare." Petitioners, on the other hand, rely on the revision authority of 110 (a) (3) for the contention that a state plan may provide for an individual variance from generally applicable emission limitations so long as the variance does not cause the plan to fail to comply with the requirements of 110 (a) (2). Since a variance would normally implicate only the 110 (a) (2) (A) requirement that plans provide for attainment and maintenance of national ambient air standards, treatment as revisions would result in variances being readily approved in two situations: first, where the variance does not defer compliance beyond the attainment date;[15] and second, where the national standards have been attained and the variance is not so great that a plan incorporating it could not insure their continued maintenance. Moreover, a 110 (a) (3) revision may be granted on the basis of hearings conducted by the State, whereas a 110 (f) *78 postponement is available only after the Agency itself conducts hearings. There is thus considerable practical importance attached to the issue of whether variances are to be treated as revisions or as postponements, or for that matter, as the First Circuit would have it, as neither until the mandatory attainment date but as postponements thereafter. This practical importance reaches not merely the operator of a particular source who believes that circumstances justify his receiving a variance from categorical limitations. It also reaches the broader issue of whether Congress intended the States to retain any significant degree of control of the manner in which they attain and maintain national standards, at least once their initial plans have been approved or, under the First Circuit's approach, once the mandatory attainment date has arrived. To explain our conclusion as to Congress' intent, it is necessary that we consider the revision and postponement sections in the context of other provisions of the amended Clean Air Act, particularly those which distinguish between national ambient air standards and emission limitations. As we have already noted, primary ambient air standards deal with the quality of outdoor air, and are fixed on a nationwide basis at levels which the Agency determines will protect the public health. It is attainment and maintenance of these national standards which 110 (a) (2) (A) requires that state plans provide. In complying with this requirement a State's plan must include "emission limitations," which are regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. *79 The Agency is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met.[16] Under 110 (a) (2), the Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of 110 (a) (2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards. 110 Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation. This analysis of the Act's division of responsibilities is not challenged by respondents insofar as it concerns the process of devising and promulgating an initial implementation *80 plan. Respondents do, however, deny that the States have such latitude once the initial plan is approved. Yet the third paragraph of 110 (a), and the one immediately following the paragraphs which specify that States shall file implementation plans and that the Agency shall approve them if they satisfy certain broad criteria, is the section which requires the Agency to "approve any revision of an implementation plan" if it "determines that it meets the requirements" of 110 (a) (2). On its face, this provision applies to any revision, without regard either to its breadth of applicability, or to whether it is to be effective before or after the attainment date; rather, Agency approval is subject only to the condition that the revised plan satisfy the general requirements applicable to original implementation plans. Far from evincing congressional intent that the Agency assume control of a State's emission limitations mix once its initial plan is approved, the revision section is to all appearances the mechanism by which the States may obtain approval of their developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards. In order to challenge this characterization of 110 (a) (3), respondents principally rely on the contention that the postponement provision, 110 (f), is the only mechanism by which exceptions to a plan's requirements may be obtained, under any circumstances. Were this an accurate description of 110 (f), we would agree that the revision authority does not have the broad application asserted by the Agency. Like the Ninth Circuit,[17] however, we believe that 110 (f) serves a function different from that of supervising state efforts to modify the initial *81 mix of emission limitations by which they implement national standards. In our view, 110 (f) is a safety valve by which may be accorded, under certain carefully specified circumstances, exceptions to the national standards themselves. That this is its role is strongly suggested by the process by which it became a part of the Clean Air Act. The House version of the Amendment, H. R. 17255, 91st Cong., 2d Sess., contained no provisions for either postponements or, most significantly, mandatory deadlines for the attainment of national ambient air standards. The Senate bill, S. 4358, 91st Cong., 2d Sess., did contain both the three-year deadline, which now appears in 110 (a) (2), and the predecessor of the present 110 (f). That predecessor[18] permitted the governor of a *82 State to petition a three-judge district court for "relief from the effect" of expiration of the three-year deadline as to a region or persons, and provided for the grant of such relief upon a showing of conditions similar to those *83 now appearing in 110 (f). Under its language the postponement provision plainly applied only when deferral of a national deadline was sought.[19] The Conference Committee adopted the Senate's general approach to the deadline issue. Its report states: "The conference substitute follows the Senate amendment is establishing deadlines for implementing primary ambient air quality standards but leaves the States free to establish a reasonable time period within which secondary ambient air quality standards will be implemented. The conference substitute modifies the Senate amendment in that it allows the Administrator to grant extensions for good causes shown upon application by the Governors." H. R. Conf. Rep. No. 91-1783, p. 45 (1970). (Emphasis added.) Nowhere does the report suggest that other changes in the Senate's proposed 111 (f) were intended to dramatically broaden its reach, such that it would not merely be available to obtain deferral of the strict deadlines for compliance with national standards, but would also be the exclusive mechanism for any ameliorative modification of a plan, no matter how minor. *84 That the postponement provision was intended merely as a method of escape from the mandatory deadlines becomes even clearer when one considers the summary of the conference's work which Senator Muskie presented to the Senate. The summary referred to a provision under which a single two-year extension of the deadline could be obtained were it shown to be necessary at the time a State's initial plan was submitted. It then immediately discussed the postponement provision, as follows: "A Governor may also apply for a postponement of the deadline if, when the deadline approaches, it is impossible for a source to meet a requirement under an implementation plan, interim control measures have reduced (or will reduce) the adverse health effects of the source, and the continued operation of the source is essential to national security or the public health or welfare of that State." 116 Cong. Rec. 42384-42385. (Emphasis added.) This limited view of the role of 110 (f) is reinforced by comparison with the section which immediately precedes it in the statute, 110 (e).[20] This is the provision *85 to which Senator Muskie's summary was obviously referring when it stated that the three-year deadline could be extended for up to two years if proper application were made at the time a State first submitted its plan. Like 110 (f), 110 (e) is available only if an emission source is unable to comply with plan requirements because "the necessary technology or other alternatives are not available or will not be available soon enough to permit compliance." Section 110 (e) also contains a requirement parallel to that of 110 (f) (1) (C), that available alternative s and control measures have been considered and utilized. Unlike 110 (f), however, 110 (e) contains no requirement that "the continued operation of such source is essential to national security or to the public health or welfare." Section 110 (e) thus permits a two-year extension on a showing considerably less stringent than that required for a 110 (f) one-year postponement. This disparity is quite logical, however, because the relief under 110 (e) is limited to an initial two-year period, whereas that under 110 (f) is available at any time, so long as application is made prior to the effective date of the relevant requirement.[21] *86 On the other hand, the disparity between the standards of 110 (e) and those of 110 (f) would be inexplicable were 110 (f) also the sole mechanism by which States could modify the particular emission limitations mix incorporated in their initial implementation plans, even though the desired modifications would have no impact on the attainment or maintenance of national standards. Respondents' interpretation requires the anomalous conclusion that Congress, having stated its goal to be the attainment and maintenance of specified ambient air standards, nonetheless made it significantly more difficult for a State to modify an emission limitations mix which met those standards both before and after modification than for a State to obtain a two-year deferral in the attainment of the standards themselves. The interpretation suffers, therefore, not only from its contrariety to the revision authority which Congress provided, but also from its willingness to ascribe inconsistency to a carefully considered congressional enactment. We believe that the foregoing analysis of the structure and legislative history of the Clean Air Amendments shows that Congress intended to impose national ambient air standards to be attained within a specific period of time. It also shows that in 110 (e) and (f) Congress carefully limited the circumstances in which timely attainment and subsequent maintenance of these standards could be compromised. We also believe that Congress, consistent with its declaration that "[e]ach State *87 shall have the primary responsibility for assuring air quality" within its boundaries, 107 (a), left to the States considerable latitude in determining specifically how the standards would be met. This discretion includes the continuing authority to revise choices about the mix of emission limitations. We therefore conclude that the Agency's interpretation of 110 (a) (3) and 110 (f) was "correct," to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the "correct" one. Given this conclusion, as well as the facts that the Agency is charged with administration of the Act, and that there has undoubtedly been reliance upon its interpretation by the States and other parties affected by the Act, we have no doubt whatever that its construction was sufficiently reasonable to preclude the Court of Appeals from substituting its judgment for that of the Agency. ; We are not persuaded to the contrary by any of the arguments advanced by respondents or by the Courts of Appeals which have rejected 110 (a) (3) as authority for granting variances. To these various arguments we now turn. IV The principal basis on which the Fifth Circuit rejected the Agency's view of the revision and postponement sections was its analysis of their language. The court focused first on the fact that 110 (f) speaks in terms of "any stationary source," and of the postponement of "any requirement of an applicable implementation plan." (Emphasis added.) This language, according to the Fifth Circuit, belies the Agency's contention that the postponement section is inapplicable to those variances which do not jeopardize the attainment or maintenance *88 of national standards. The court went on to state, without citation or supporting reasoning: "A revision is a change in a generally applicable requirement; a postponement or variance [is a] change in the application of a requirement to a particular party. The distinction between the two is familiar and clear." We think that the Fifth Circuit has read more into 110 (f), and more out of 110 (a) (3), than careful analysis can sustain. In the first place, the "any stationary source" and "any requirement" language of 110 (f) serves only to define the matters with respect to which the governor of a State may apply for a postponement. The language does not, as the Fifth Circuit would have it, state that all sources desirous of any form of relief must rely solely on the postponement provision. While 110 (f) makes its relief available to any source which can qualify for it, regardless of whether the relief would jeopardize national standards, the section does not even suggest that other forms of relief, having no impact on the national goal of achieving air quality standards, are not also available on appropriately less rigorous showings. As for the Fifth Circuit's observation that "a revision is a change in a generally applicable requirement," whereas a "postponement or variance" deals with particular parties, we are not satisfied that the distinction is so "familiar and clear." While a variance is generally thought to be of specific applicability,[22] whether a revision *89 is general or specific depends on what is being revised. In this instance, it is implementation plans which are being revised, and it is clear that such plans may be quite detailed, both as to sources and the remedial steps required of the sources. Not only does 110 (a) (2) (B) specify that a plan shall include "emission limitations, schedules, and timetables for compliance,"[23] but respondents themselves have urged that the very specific variances which have already been granted in Georgia should have been, and may still be, treated as "compliance schedules" contained within the original plan.[24] A further difficulty with the Fifth Circuit's analysis of the language of 110 (a) (3) and 110 (f) is that it entirely overlooks an obvious distinction between revisions and postponements. In normal usage, to "postpone" is to defer, whereas to "revise" is to remake or amend. In the implementation plan context, normal usage would suggest that a postponement is a deferral of the effective date of a requirement which remains a part of the applicable plan, whereas a revision is a change in the plan itself which deletes or modifies the requirement. If by revision a requirement of a plan is removed, then a person seeking relief from that requirement has no *90 need to seek its postponement, and 110 (f) is by its terms inapplicable. But if such a person cannot obtain a revision, because for example the plan as so revised would no longer insure timely attainment of the national standards, then under the Act he has no alternative but to comply or to obtain a postponement of the requirement's effective date—if he can satisfy the stringent conditions of 110 (f). This distinction between the two is so straightforward, and so consistent with the structure and history of the Act, as discussed in Part III of this opinion, that we perceive no basis for the Fifth Circuit's strained line of analysis.[25] The Fifth Circuit also relied on the "technology forcing" nature of the Clean Air Amendments of 1970. It reasoned that because the statute was intended to force technology to meet specified, scheduled standards, *91 it was essential to insure that commitments made at the planning stage could not be readily abandoned when the time for compliance arrived. According to the Fifth Circuit, 110 (f) "is the device Congress chose to assure this." 489 F.2d, at Clearly 110 (f) does present a formidable hurdle for those proposed departures from earlier commitments which are in fact subject to its stringent conditions. What the Fifth Circuit failed to consider, however, is that so long as the national standards are being attained and maintained, there is no basis in the present Clean Air Act for forcing further technological developments. Agency review assures that variances granted under 110 (a) (3) will be consistent with the 110 (a) (2) (A) requirement that the national standards be attained as expeditiously as practicable and maintained thereafter. Thus 110 (a) (3) variances ex hypothesi do not jeopardize national standards, and the technology-forcing character of the Amendments is no reason at all for judging them under the provisions of 110 (f). The First Circuit also rejected the Agency's contention that variances could be handled under the revision but it did so for reasons different from those relied upon by the Fifth Circuit.[26] It stated: "Had Congress meant [ 110 (f)] to be followed only if a polluter, besides violating objective state *92 requirements, was shown to be preventing maintenance of a national standard, it would have said so. To allow a polluter to raise and perhaps litigate that issue is to invite protracted delay. The factual question could have endless refinements: is it the individual variance-seeker or others whose pollution is preventing maintenance of standards? See e. g., Getty Oil remanded with directions, where Getty raised this issue in various forums." Respondents also stress this argument: treating variances as revisions rather than as postponements would invite litigation, would be impractical in application, and would therefore result in degradation of the environment. Aside from the fact that it goes more to the wisdom of what Congress has chosen to do than to determining what Congress has done, we believe this argument to be overstated. As made clear in the Getty case cited by the First Circuit, a polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's, for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement s.[27] *93 We are further impressed that the Agency itself has displayed no concern for the purported administrative difficulty of treating variances as revisions. Ordinarily, an agency may be assumed capable of meeting the responsibilities which it contends are placed upon it. Were respondents able to make a contrary showing, that fact might have some weight in interpreting Congress' intent, although we would doubt its relevance unless Congress were also shown to have been aware of the problem when it drafted legislation which otherwise is consistent with the Agency's contentions. Respondents have made no such showings. The judgments which the Agency must make when passing on variances under 110 (a) (3) are whether the ambient air complies with national standards, and if so whether a proposed variance would cause a plan to fail to insure maintenance of those standards. These judgments are little different from those which the Agency had to make when it approved the initial plans into which respondents seek to have the States frozen. In each instance the Agency must measure the existing level of pollution, compare it with the national standards, and determine the effect on this comparison of specified emission modifications.[28] That Congress is of the opinion *94 that the Agency can feasibly and reliably perform these functions is manifest not only in its 1970 legislation, but also in a amendment designed to conserve energy. The amendment provides that the Agency should report to each State on whether its implementation plan could be revised in relation to fuel burning stationary sources, "without interfering with the attainment and maintenance of any national ambient air quality standard." 110 (a) (3) (B) of the Clean Air Act, as added, 42 U.S. C. 1857c-5 (a) (3) (B) (1970 ed., Supp. IV). (Emphasis added.) V Respondents have put forward several additional arguments which have not been specifically adopted by any court of appeals. The first is based on legislative history. Respondents focus on the fact that while the Conference Committee accepted the Senate's concept of a three-year maximum deadline for attainment of national standards, *95 it also strengthened the Senate's provision by specifying that attainment should be achieved "as expeditiously as practicable but in no case later than three years." (Emphasis added.) Respondents further make the contention that the Conference Committee altered the Senate's version of the postponement provision to "provide that a source's attempt to delay compliance with `any requirement' of a State Plan would be considered a `postponement.' " Brief for Respondents 36. According to respondents the latter change "was necessary to conform" the postponement provision with the Conference Committee's "as expeditiously as practicable" requirement.[29]*96 The argument is that because any variance would delay attainment of national standards beyond the date previously considered the earliest practicable, and that because the Act requires attainment as soon as practicable, any variance must therefore be treated as a postponement. This argument is not persuasive, for multiple reasons. First, this interpretation of the Conference Committee's work finds no specific support in legislative documents or debates. This is true despite the significance of the change which, under respondents' interpretation, was made—the expansion of 110 (f) from a safety valve against mandatory deadlines into the exclusive mechanism by which a State could make even minor modifications of its emission limitations mix. Respondents' interpretation arises instead from their own reading of the statute and inferences as to legislative purpose. Second, as we have already discussed, and contrary to respondents' contention, 110 (f) simply does not state that any deferral of compliance with "any requirement" of a state plan "would be considered a postponement." Rather, it merely states that a postponement may be sought with respect to any source and any requirement. Third, respondents' reading equates "practicable" in 110 (a) (2) (A) with 110 (f)'s "essential to national security or to the public health or welfare." Yet plainly there could be many circumstances in which attainment in less than three years would be impracticable, and thus not required, but in which deferral could not possibly be justified as essential to the national security, or public *97 health or welfare.[30] Fourth, the statute requires only attainment as expeditiously as practicable, not attainment as expeditiously as was thought practicable when the initial implementation plan was devised. Finally, even if respondents' argument had force with regard to a preattainment variance, it would still be of no relevance whatsoever once the national standards were attained. A variance which does not compromise national standards that have been attained does no damage to the congressional goals of attaining the standards as expeditiously as practicable and maintaining them thereafter. The last of respondents' arguments which merit our attention is related to the Fifth Circuit's conclusion that revisions are restricted to general requirements, and that all specific modifications must therefore be funneled through the postponement provision. Respondents go one step further and contend that the revision authority is limited not only to general changes, but to those which also are initiated by the Agency in order to "accelerate abatement or attain it in greater concert with other national goals." Brief for Respondents 26. This highly restrictive view of 110 (a) (3) is based on 110 (a) (2) (H),[31] which specifies that to obtain Agency approval *98 a State's plan must provide a mechanism for revision to take account of revised national standards, of more expeditious methods of achieving the standards, and of Agency determinations that a plan is substantially inadequate. The argument is specious. Section 110 (a) (2) (H) does nothing more than impose a minimum requirement that state plans be capable of such modifications as are necessary to meet the basic goal of cleansing the ambient air to the extent necessary to protect public health, as expeditiously as practicable within a three-year period. The section in no way prevents the States from also permitting ameliorative revisions which do not compromise the basic goal. Nor does it, by requiring a particular type of revision, preclude those of a different type. As we have already noted, 110 (a) (3) requires the Agency to approve "any revision" which is consistent with 110 (a) (2)'s minimum standards for an initial plan, and which the State adopted after reasonable public notice and hearing; no other restrictions whatsoever are placed on the Agency's duty to approve revisions.[32] VI For the foregoing reasons, the Court of Appeals for the Fifth Circuit was in error when it concluded that the postponement provision of 110 (f) is the sole method by which may be obtained specific ameliorative modifications *99 of state implementation plans. The Agency had properly concluded that the revision mechanism of 110 (a) (3) is available for the approval of those variances which do not compromise the basic statutory mandate that, with carefully circumscribed exceptions, the national primary ambient air standards be attained in not more than three years, and maintained thereafter. To the extent that the judgment of the Court of Appeals for the Fifth Circuit was to the contrary, it is reversed and the cause is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS dissents. MR. JUSTICE POWELL took no part in the consideration or decision of this case.

Justice Blackmun

majority

Ellis v. Dyson

https://www.courtlistener.com/opinion/109253/ellis-v-dyson/

https://www.courtlistener.com/api/rest/v3/clusters/109253/

1974-100

This action, instituted in the United States District Court for the Northern District of Texas, challenges the constitutionality of the loitering ordinance of the city of Dallas. We do not reach the merits, for the District Court dismissed the case under the compulsion of a procedural precedent of the United States Court of Appeals for the Fifth Circuit which we have since reversed. I Petitioners Tom E. Ellis and Robert D. Love, while in an automobile, were arrested in Dallas at 2 a. m. on January 18, 1972, and were charged with violating the city's loitering ordinance. That ordinance, § 31-60 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended by Ordinance No. 12991, adopted July 20, 1970, provides: "It shall be unlawful for any person to loiter, as hereinafter defined, in, on or about any place, public or private, when such loitering is accompanied by activity or is under circumstances that afford probable cause for alarm or concern for the safety and wellbeing of persons or for the security of property, in the surrounding area." The term "loiter" is defined to "include the following activities: The walking about aimlessly without apparent purpose; lingering; hanging around; lagging behind; the idle spending of *428 time; delaying; sauntering and moving slowly about, where such conduct is not due to physical defects or conditions." A violation of the ordinance is classified as a misdemeanor and is punishable by a fine of not more than $200. Before their trial in the Dallas Municipal Court[1] petitioners sought a writ of prohibition from the Texas Court of Criminal Appeals to preclude their prosecution on the ground that the ordinance was unconstitutional on its face. App. 29. The petitioners contended, in particular, that § 31-60 is vague and overbroad, that it "permits arrest on the basis of alarm or concern only," and that it allows the offense to be defined "upon the moment-by-moment opinions and suspicions of a police officer on patrol." App. 31. The Court of Criminal Appeals, however, denied the application without opinion on February 21, 1972.[2] The following day the Municipal Court proceeded to try the case. After overruling petitioners' motion to dismiss the charges on the grounds of the ordinance's unconstitutionality, the court accepted their pleas of nolo contendere[3] and fined each petitioner $10 plus $2.50 costs. *429 Under Texas' two-tier criminal justice system, petitioners could not directly appeal the judgment of the Municipal Court, but were entitled to seek a trial de novo in the County Court,[4] Tex. Code Crim. Proc., Art. 44.17 (1966), by filing at least a $50 bond within the 10 days following the Municipal Court's judgment. Arts. 44.13 and 44.16. At the de novo trial petitioners would have been subject to the same maximum fine of $200. Appellate review of the County Court judgment would be available in the Texas Court of Criminal Appeals if the fine imposed exceeded $100. Art. 4.03. Electing to avoid the possibility of the imposition of a larger fine by the County Court than was imposed by the Municipal Court, petitioners brought the present federal action[5] under the civil rights statutes, 42 U.S. C. § 1983[6] and 28 U.S. C. §§ 1343 (3) and (4), and under the Declaratory Judgment Act, 28 U.S. C. §§ 2201-2202. *430 Named as defendants, in both their individual and official capacities, were the then chief of police, the city attorney, the then city manager, the then clerk of the Municipal Courts, and the mayor. Petitioners sought a declaratory judgment that the loitering ordinance is unconstitutional. They complained that the statute is vague and overbroad, places too much discretion in arresting officers, proscribes conduct that may not constitutionally be limited, and impermissibly chills the rights of free speech, association, assembly, and movement. Petitioners also sought equitable relief in the form of expunction of their records of arrests and convictions for violating the ordinance, and of some counteraction to any distribution to other law enforcement agencies of information as to their arrests and convictions. No injunctive relief against any future application of the statute to them was requested. Cf. Reed v. Giarrusso, 462 F.2d 706 (CA5 1972). The petitioners moved for summary judgment upon the pleadings, admissions, affidavits, and "other matters of record." App. 42. The respondents, in turn, moved to dismiss and suggested, as well, "that the abstention doctrine is applicable." Id., at 58. The District Court held that federal declaratory and injunctive relief against future state criminal prosecutions was not available where there was no allegation of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury and harm to the petitioners if the ordinance were enforced. This result, it concluded, was mandated by the decision of its controlling court in Becker v. Thompson, 459 F.2d 919 (CA5 1972). In Becker, the Fifth Circuit had held that the principles of Younger v. Harris, 401 U.S. 37 (1971), applied not only where a state criminal prosecution was actually pending, but also where a state criminal prosecution was merely threatened. Since the present petitioners' complaint *431 contained insufficient allegation of irreparable harm, the case was dismissed. 358 F. Supp. 262 (1973).[7] The United States Court of Appeals for the Fifth Circuit affirmed without opinion. 475 F.2d 1402 (1973). After we unanimously reversed the Becker decision on which the District Court had relied, Steffel v. Thompson, 415 U.S. 452 (1974), we granted the petition for certiorari. 416 U.S. 954 (1974). II In Steffel the Court considered the issue whether the Younger doctrine should apply to a case where state prosecution under a challenged ordinance was merely threatened but not pending. In that case, Steffel and his companion, Becker, engaged in protest handbilling at a shopping center. Police informed them that they would be arrested for violating the Georgia criminal trespass statute if they did not desist. Steffel ceased his handbilling activity, but his companion persisted in the endeavor and was arrested and charged. Steffel then filed suit under 42 U.S. C. § 1983 and 28 U.S. C. § 1343 in Federal District Court, seeking a declaratory judgment[8] that the ordinance was being applied in violation of his rights under the First and Fourteenth Amendments. It was stipulated that if Steffel returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the statute. 415 U.S., at 456. Contrary *432 to the views of the District Court and of the Court of Appeals in the present case, we held that "federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied." Id., at 475. Thus, in Steffel, we rejected the argument that badfaith prosecution, harassment, or other unique and extraordinary circumstances must be shown before federal declaratory relief may be invoked against a genuine threat of state prosecution. Unlike the situation where state prosecution is actually pending, cf. Samuels v. Mackell, 401 U.S. 66 (1971), where there is simply a threatened prosecution, considerations of equity, comity, and federalism have less vitality.[9] Instead, the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes paramount. 415 U.S., at 462-463. Exhaustion of state judicial or administrative remedies in Steffel was ruled not to be necessary, for we have long held that an action under § 1983 is free of that requirement. *433 415 U. S., at 472-473. See, e. g., Monroe v. Pape, 365 U.S. 167, 183 (1961). We did require, however, that it be clearly demonstrated that there was a continuing, actual controversy, as is mandated both by the Declaratory Judgment Act, 28 U.S. C. § 2201, and by Art. III of the Constitution itself. Although we noted in Steffel, 415 U. S., at 459, that the threats of prosecution were not "imaginary or speculative," as those terms were used in Younger, 401 U. S., at 42, we remanded the case to the District Court to determine, among other things, if the controversy was still live and continuing. See 415 U.S., at 460. In particular, we observed that the handbilling had been directed against our Government's policy in Vietnam and "the recent developments reducing the Nation's involvement in that part of the world" could not be ignored, so that there was a possibility there no longer existed " `a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,' " ibid., quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). III The principles and approach of Steffel are applicable here. The District Court and the Court of Appeals decided this case under the misapprehension that the Younger doctrine applied where there is a threatened state criminal prosecution as well as where there is a state criminal prosecution already pending. Those courts had no reason to reach the merits of the case or to determine the actual existence of a genuine threat of prosecution, or to inquire into the relationship between the past prosecution and the threat of prosecutions for similar activity in the future. Now that Steffel has been decided, these issues may properly be investigated. *434 We therefore reverse the judgment of the Court of Appeals and remand the case to the District Court for reconsideration in the light of our opinion in Steffel v. Thompson, reversing Becker v. Thompson. It is appropriate to observe in passing, however, that we possess greater reservations here than we did in Steffel as to whether a case or controversy exists today. First, at oral argument counsel for petitioners acknowledged that they had not been in touch with their clients for approximately a year and were unaware of their clients' whereabouts. Tr. of Oral Arg. 5-7, 18-22, 25-26. Petitioners, apparently, are not even apprised of the progress of this litigation. Unless petitioners have been found by the time the District Court considers this case on remand, it is highly doubtful that a case or controversy could be held to exist; it is elemental that there must be parties before there is a case or controversy. Further, if petitioners no longer frequent Dallas, it is most unlikely that a sufficiently genuine threat of prosecution for possible future violations of the Dallas ordinance could be established. Second, there is some question on this record as it now stands regarding the pattern of the statute's enforcement. Answers to interrogatories reveal an average of somewhat more than two persons per day were arrested in Dallas during seven specified months in 1972 for the statutory loitering offense. App. 68. Of course, on remand, the District Court will find it desirable to examine the current enforcement scheme in order to determine whether, indeed, there now is a credible threat that petitioners, assuming they are physically present in Dallas, might be arrested and charged with loitering. A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. III of the Constitution and of the Declaratory Judgment Act, may be said to exist. See Steffel v. Thompson, 415 U. S., at 458-460. See generally *435 O'Shea v. Littleton, 414 U.S. 488, 493-499 (1974); Boyle v. Landry, 401 U.S. 77, 81 (1971). Further, the credible threat must be shown to be alive at each stage of the litigation. Steffel v. Thompson, 415 U. S., at 459 n. 10, and cases cited therein. Because of the fact that the District Court has not had the opportunity to consider this case in the light of Steffel, and because of our grave reservations about the existence of an actual case or controversy, we have concluded that it would be inappropriate for us to touch upon any of the other complex and difficult issues that the case otherwise might present. The District Court must determine that the litigation meets the threshold requirements of a case or controversy before there can be resolution of such questions as the interaction between the past prosecution and the threat of future prosecutions, and of the potential considerations, in the context of this case, of the Younger doctrine, of res judicata, of the plea of nolo contendere, and of the petitioners' failure to utilize the state appellate remedy available to them. Expunction of the records of the arrests and convictions and the nature of corrective action with respect thereto is another claim we do not reach at this time. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. No costs are allowed. It is so ordered. MR.

This action, instituted in the United States District Court for the Northern District of Texas, challenges the constitutionality of the loitering ordinance of the city of Dallas. We do not reach the merits, for the District Court dismissed the case under the compulsion of a procedural precedent of the United States Court of Appeals for the Fifth Circuit which we have since reversed. I Petitioners Tom E. Ellis and Robert D. Love, while in an automobile, were arrested in Dallas at 2 a. m. on January 18, and were charged with violating the city's loitering ordinance. That ordinance, 31-60 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, Texas, as amended by Ordinance No. 12991, adopted July 20, 1970, provides: "It shall be unlawful for any person to loiter, as hereinafter defined, in, on or about any place, public or private, when such loitering is accompanied by activity or is under circumstances that afford probable cause for alarm or concern for the safety and wellbeing of persons or for the security of property, in the surrounding area." The term "loiter" is defined to "include the following activities: The walking about aimlessly without apparent purpose; lingering; hanging around; lagging behind; the idle spending of *428 time; delaying; sauntering and moving slowly about, where such conduct is not due to physical defects or conditions." A violation of the ordinance is classified as a misdemeanor and is punishable by a fine of not more than $200. Before their trial in the Dallas Municipal Court[1] petitioners sought a writ of prohibition from the Texas Court of Criminal Appeals to preclude their prosecution on the ground that the ordinance was unconstitutional on its face. App. 29. The petitioners contended, in particular, that 31-60 is vague and overbroad, that it "permits arrest on the basis of alarm or concern only," and that it allows the offense to be defined "upon the moment-by-moment opinions and suspicions of a police officer on patrol." App. 31. The Court of Criminal Appeals, however, denied the application without opinion on February 21,[2] The following day the Municipal Court proceeded to try the case. After overruling petitioners' motion to dismiss the charges on the grounds of the ordinance's unconstitutionality, the court accepted their pleas of nolo contendere[3] and fined each petitioner $10 plus $2.50 costs. *429 Under Texas' two-tier criminal justice system, petitioners could not directly appeal the judgment of the Municipal Court, but were entitled to seek a trial de novo in the County Court,[4] Tex. Code Crim. Proc., Art. 44.17 (1966), by filing at least a $50 bond within the 10 days following the Municipal Court's judgment. Arts. 44.13 and 44.16. At the de novo trial petitioners would have been subject to the same maximum fine of $200. Appellate review of the County Court judgment would be available in the Texas Court of Criminal Appeals if the fine imposed exceeded $100. Art. 4.03. Electing to avoid the possibility of the imposition of a larger fine by the County Court than was imposed by the Municipal Court, petitioners brought the present federal action[5] under the civil rights statutes, 42 U.S. C. 1983[6] and 28 U.S. C. 1343 (3) and (4), and under the Declaratory Judgment Act, 28 U.S. C. 2201-2202. *430 Named as defendants, in both their individual and official capacities, were the then chief of police, the city attorney, the then city manager, the then clerk of the Municipal Courts, and the mayor. Petitioners sought a declaratory judgment that the loitering ordinance is unconstitutional. They complained that the statute is vague and overbroad, places too much discretion in arresting officers, proscribes conduct that may not constitutionally be limited, and impermissibly chills the rights of free speech, association, assembly, and movement. Petitioners also sought equitable relief in the form of expunction of their records of arrests and convictions for violating the ordinance, and of some counteraction to any distribution to other law enforcement agencies of information as to their arrests and convictions. No injunctive relief against any future application of the statute to them was requested. Cf. The petitioners moved for summary judgment upon the pleadings, admissions, affidavits, and "other matters of record." App. 42. The respondents, in turn, moved to dismiss and suggested, as well, "that the abstention doctrine is applicable." The District Court held that federal declaratory and injunctive relief against future state criminal prosecutions was not available where there was no allegation of bad-faith prosecution, harassment, or other unusual circumstances presenting a likelihood of irreparable injury and harm to the petitioners if the ordinance were enforced. This result, it concluded, was mandated by the decision of its controlling court in In Becker, the Fifth Circuit had held that the principles of applied not only where a state criminal prosecution was actually pending, but also where a state criminal prosecution was merely threatened. Since the present petitioners' complaint *431 contained insufficient allegation of irreparable harm, the case was dismissed.[7] The United States Court of Appeals for the Fifth Circuit affirmed without opinion. After we unanimously reversed the Becker decision on which the District Court had relied, we granted the petition for certiorari. II In the Court considered the issue whether the doctrine should apply to a case where state prosecution under a challenged ordinance was merely threatened but not pending. In that case, and his companion, Becker, engaged in protest handbilling at a shopping center. Police informed them that they would be arrested for violating the Georgia criminal trespass statute if they did not desist. ceased his handbilling activity, but his companion persisted in the endeavor and was arrested and charged. then filed suit under 42 U.S. C. 1983 and 28 U.S. C. 1343 in Federal District Court, seeking a declaratory judgment[8] that the ordinance was being applied in violation of his rights under the First and Fourteenth Amendments. It was stipulated that if returned and refused upon request to stop handbilling, a warrant would be sworn out and he might be arrested and charged with a violation of the statute. Contrary *432 to the views of the District Court and of the Court of Appeals in the present case, we held that "federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied." Thus, in we rejected the argument that badfaith prosecution, harassment, or other unique and extraordinary circumstances must be shown before federal declaratory relief may be invoked against a genuine threat of state prosecution. Unlike the situation where state prosecution is actually pending, cf. where there is simply a threatened prosecution, considerations of equity, comity, and federalism have less vitality.[9] Instead, the opportunity for adjudication of constitutional rights in a federal forum, as authorized by the Declaratory Judgment Act, becomes -463. Exhaustion of state judicial or administrative remedies in was ruled not to be necessary, for we have long held that an action under 1983 is free of that requirement. * -473. See, e. g., We did require, however, that it be clearly demonstrated that there was a continuing, actual controversy, as is mandated both by the Declaratory Judgment Act, 28 U.S. C. 2201, and by Art. III of the Constitution itself. Although we noted in that the threats of prosecution were not "imaginary or speculative," as those terms were used in we remanded the case to the District Court to determine, among other things, if the controversy was still live and continuing. See In particular, we observed that the handbilling had been directed against our Government's policy in Vietnam and "the recent developments reducing the Nation's involvement in that part of the world" could not be ignored, so that there was a possibility there no longer existed " `a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,' " ibid., quoting Maryland Casualty III The principles and approach of are applicable here. The District Court and the Court of Appeals decided this case under the misapprehension that the doctrine applied where there is a threatened state criminal prosecution as well as where there is a state criminal prosecution already pending. Those courts had no reason to reach the merits of the case or to determine the actual existence of a genuine threat of prosecution, or to inquire into the relationship between the past prosecution and the threat of prosecutions for similar activity in the future. Now that has been decided, these issues may properly be investigated. *434 We therefore reverse the judgment of the Court of Appeals and remand the case to the District Court for reconsideration in the light of our opinion in Thompson, reversing Thompson. It is appropriate to observe in passing, however, that we possess greater reservations here than we did in as to whether a case or controversy exists today. First, at oral argument counsel for petitioners acknowledged that they had not been in touch with their clients for approximately a year and were unaware of their clients' whereabouts. Tr. of Oral Arg. 5-7, 18-22, 25-26. Petitioners, apparently, are not even apprised of the progress of this litigation. Unless petitioners have been found by the time the District Court considers this case on remand, it is highly doubtful that a case or controversy could be held to exist; it is elemental that there must be parties before there is a case or controversy. Further, if petitioners no longer frequent Dallas, it is most unlikely that a sufficiently genuine threat of prosecution for possible future violations of the Dallas ordinance could be established. Second, there is some question on this record as it now stands regarding the pattern of the statute's enforcement. Answers to interrogatories reveal an average of somewhat more than two persons per day were arrested in Dallas during seven specified months in for the statutory loitering offense. App. 68. Of course, on remand, the District Court will find it desirable to examine the current enforcement scheme in order to determine whether, indeed, there now is a credible threat that petitioners, assuming they are physically present in Dallas, might be arrested and charged with loitering. A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. III of the Constitution and of the Declaratory Judgment Act, may be said to exist. See ; Further, the credible threat must be shown to be alive at each stage of the litigation. U. S., at 459 n. 10, and cases cited therein. Because of the fact that the District Court has not had the opportunity to consider this case in the light of and because of our grave reservations about the existence of an actual case or controversy, we have concluded that it would be inappropriate for us to touch upon any of the other complex and difficult issues that the case otherwise might present. The District Court must determine that the litigation meets the threshold requirements of a case or controversy before there can be resolution of such questions as the interaction between the past prosecution and the threat of future prosecutions, and of the potential considerations, in the context of this case, of the doctrine, of res judicata, of the plea of nolo contendere, and of the petitioners' failure to utilize the state appellate remedy available to them. Expunction of the records of the arrests and convictions and the nature of corrective action with respect thereto is another claim we do not reach at this time. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. No costs are allowed. It is so ordered. MR.

Justice Rehnquist

dissenting

Barnard v. Thorstenn

https://www.courtlistener.com/opinion/112216/barnard-v-thorstenn/

https://www.courtlistener.com/api/rest/v3/clusters/112216/

1988-051

In Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985), the Court held that a rule of the New Hampshire Supreme Court which limited bar admission to state residents violated the Privileges and Immunities Clause of Art. IV, § 2. Today the Court extends the reasoning of Piper to invalidate a Virgin Islands rule limiting bar admission to attorneys who demonstrate that they have resided in the Virgin Islands for at least one year and will, if admitted, continue to reside and practice there. I agree that the durational residency requirement is invalid under our prior cases dealing with the "right" of interstate travel. E. g., Shapiro v. Thompson, 394 U.S. 618 (1969). But I cannot agree with the Court's conclusion that the simple residency requirement is invalid under the Privileges and Immunities Clause. Accepting *560 Piper's view of the Privileges and Immunities Clause, I think the unique circumstances of legal practice in the Virgin Islands, as compared to the mainland States, could justify upholding this simple residency requirement even under that view. Because the record reveals the existence of genuine factual disputes about the nature of these circumstances and their relationship to the challenged residency requirement, I would reverse the judgment below and remand for trial on those issues.

In Supreme Court of New the Court held that a rule of the New Hampshire Supreme Court which limited bar admission to state residents violated the Privileges and Immunities Clause of Art. IV, 2. Today the Court extends the reasoning of Piper to invalidate a Virgin Islands rule limiting bar admission to attorneys who demonstrate that they have resided in the Virgin Islands for at least one year and will, if admitted, continue to reside and practice there. I agree that the durational residency requirement is invalid under our prior cases dealing with the "right" of interstate travel. E. g., But I cannot agree with the Court's conclusion that the simple residency requirement is invalid under the Privileges and Immunities Clause. Accepting *560 Piper's view of the Privileges and Immunities Clause, I think the unique circumstances of legal practice in the Virgin Islands, as compared to the mainland States, could justify upholding this simple residency requirement even under that view. Because the record reveals the existence of genuine factual disputes about the nature of these circumstances and their relationship to the challenged residency requirement, I would reverse the judgment below and remand for trial on those issues.

Justice Rehnquist

concurring

McCarthy v. Madigan

https://www.courtlistener.com/opinion/112701/mccarthy-v-madigan/

https://www.courtlistener.com/api/rest/v3/clusters/112701/

1991-040

I agree with the Court's holding that a federal prisoner need not exhaust the procedures promulgated by the Federal Bureau of Prisons. My view, however, is based entirely on the fact that the grievance procedure at issue does not provide for any award of monetary damages. As a result, in cases such as this one where prisoners seek monetary relief, the Bureau's administrative remedy furnishes no effective remedy at all, and it is therefore improper to impose an exhaustion requirement. See McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U.S. 668, 675 (1963); Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505 (1928). *157 Because I would base the decision on this ground, I do not join the Court's extensive discussion of the general principles of exhaustion, nor do I agree with the implication that those general principles apply without modification in the context of a Bivens claim. In particular, I disagree with the Court's reliance on the grievance procedure's filing deadlines as a basis for excusing exhaustion. As the majority observes, ante, at 146-147, we have previously refused to require exhaustion of administrative remedies where the administrative process subjects plaintiffs to unreasonable delay or to an indefinite time frame for decision. See Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 587 (1989); Gibson v. Berryhill, 411 U.S. 564, 575, n. 14 (1973); Walker v. Southern R. Co., 385 U.S. 196, 198 (1966); Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 591-592 (1926). This principle rests on our belief that when a plaintiff might have to wait seemingly forever for an agency decision, agency procedures are "inadequate" and therefore need not be exhausted. Coit Independence Joint Venture v. FSLIC, supra, at 587. But the Court makes strange use of this principle in holding that filing deadlines imposed by agency procedures may provide a basis for finding that those procedures need not be exhausted. Ante, at 152-153. Whereas before we have held that procedures without "reasonable time limit[s]" may be inadequate because they make a plaintiff wait too long, Coit Independence Joint Venture v. FSLIC, supra, at 587, today the majority concludes that strict filing deadlines might also contribute to a finding of inadequacy because they make a plaintiff move too quickly. But surely the second proposition does not follow from the first. In fact, short filing deadlines will almost always promote quick decisionmaking by an agency, the very result that we have advocated repeatedly in the cases cited above. So long as there is an escape clause, as there is here, and the time limit is within a *158 zone of reasonableness, as I believe it is here, the length of the period should not be a factor in deciding the adequacy of the remedy.

I agree with the Court's holding that a federal prisoner need not exhaust the procedures promulgated by the Federal Bureau of Prisons. My view, however, is based entirely on the fact that the grievance procedure at issue does not provide for any award of monetary damages. As a result, in cases such as this one where prisoners seek monetary relief, the Bureau's administrative remedy furnishes no effective remedy at all, and it is therefore improper to impose an exhaustion requirement. See ; Montana National Bank of *157 Because I would base the decision on this ground, I do not join the Court's extensive discussion of the general principles of exhaustion, nor do I agree with the implication that those general principles apply without modification in the context of a Bivens claim. In particular, I disagree with the Court's reliance on the grievance procedure's filing deadlines as a basis for excusing exhaustion. As the majority observes, ante, at 146-147, we have previously refused to require exhaustion of administrative remedies where the administrative process subjects plaintiffs to unreasonable delay or to an indefinite time frame for decision. See Coit Independence Joint ; ; ; 270 U.S. This principle rests on our belief that when a plaintiff might have to wait seemingly forever for an agency decision, agency procedures are "inadequate" and therefore need not be exhausted. Coit Independence Joint at But the Court makes strange use of this principle in holding that filing deadlines imposed by agency procedures may provide a basis for finding that those procedures need not be exhausted. Ante, at 152-153. Whereas before we have held that procedures without "reasonable time limit[s]" may be inadequate because they make a plaintiff wait too long, Coit Independence Joint at today the majority concludes that strict filing deadlines might also contribute to a finding of inadequacy because they make a plaintiff move too quickly. But surely the second proposition does not follow from the first. In fact, short filing deadlines will almost always promote quick decisionmaking by an agency, the very result that we have advocated repeatedly in the cases cited above. So long as there is an escape clause, as there is here, and the time limit is within a *158 zone of reasonableness, as I believe it is here, the length of the period should not be a factor in deciding the adequacy of the remedy.

Justice Blackmun

majority

Lewis v. United States

https://www.courtlistener.com/opinion/110213/lewis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/110213/

1979-045

This case presents the question whether a defendant's extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U.S. 335 (1963), may constitute the predicate for a subsequent conviction under § 1202 (a) (1), as amended, of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. C. App. § 1202 (a) (1).[1] I In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony *57 for breaking and entering with intent to commit a misdemeanor. See Fla. Stat. § 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U.S. C. App. § 1203 (2) and 18 U.S. C. § 925 (c). In January 1977, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment with having knowingly received and possessed at that time a specified firearm, in violation of 18 U.S. C. App. § 1202 (a) (1).[2] He waived a jury and was given a bench trial. It was stipulated that the weapon in question had been shipped in interstate commerce. The Government introduced in evidence an exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10. Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding.[3] He claimed that under Gideon v. Wainwright, supra, a violation of § 1202 *58 (a) (1) could not be predicated on a prior conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner's status under § 1202 (a) (1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time. On appeal, the United States Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. 591 F.2d 978 (1979). It held that a defendant, purely as a defense to a prosecution under § 1202 (a) (1), could not attack collaterally an outstanding prior felony conviction, and that the statutory prohibition applied irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also rejected Lewis' constitutional argument to the effect that the use of the prior conviction as a predicate for his prosecution under § 1202 (a) (1) violated his rights under the Fifth and Sixth Amendments. Because of conflict among the Courts of Appeals,[4] we granted certiorari. 442 U.S. 939 (1979). *59 II Four cases decided by this Court provide the focus for petitioner's attack upon his conviction. The first, and pivotal one, is Gideon v. Wainwright, supra, where the Court held that a state felony conviction without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). *60 The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a State's recidivist statute. The third is United States v. Tucker, 404 U.S. 443 (1972), where it was held that such a conviction could not be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is Loper v. Beto, 405 U.S. 473 (1972), where the Court disallowed the use of the conviction to impeach the general credibility of the defendant. The prior conviction, the plurality opinion said, "lacked reliability." Id., at 484, quoting Linkletter v. Walker, 381 U.S. 618, 639, and n. 20 (1965). We, of course, accept these rulings for purposes of the present case. Petitioner's position, however, is that the four cases require a reversal of his conviction under § 1202 (a) (1) on both statutory and constitutional grounds. III The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the "starting point" must be the language of the statute itself. Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). An examination of § 1202 (a) (1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a court of the United States or of a State . . . of a felony." No modifier is present, and nothing suggests any restriction on the scope of the term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]." United States v. Culbert, 435 U.S. 371, 373 (1978); see United States v. Naftalin, 441 U.S. 768, 772 (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is *61 relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury.[5] The obvious breadth of the language may well reflect the expansive legislative approach revealed by Congress' express findings and declarations, in 18 U.S. C. App. § 1201,[6] concerning the problem of firearm abuse by felons and certain specifically described persons. Other provisions of the statute demonstrate and reinforce its broad sweep. Section 1203 enumerates exceptions to *62 § 1202 (a) (1) (a prison inmate who by reason of his duties has expressly been entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly been authorized to receive, possess, or transport a firearm). In addition, § 1202 (c) (2) defines "felony" to exclude certain state crimes punishable by no more than two years' imprisonment. No exception, however, is made for a person whose outstanding felony conviction ultimately might turn out to be invalid for any reason. On its face, therefore, § 1202 (a) (1) contains nothing by way of restrictive language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony. See, e. g., 18 U.S. C. § 3575 (e) (dangerous special offender) and 21 U.S. C. § 851 (c) (2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 1970). When we turn to the legislative history of § 1202 (a) (1), we find nothing to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202 (a) (1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to the Act and thus was not a subject of discussion in the legislative reports. See United States v. Batchelder, 442 U.S. 114, 120 (1979); Scarborough v. United States, 431 U.S. 563, 569-570 (1977); United States v. Bass, 404 U.S. 336, 344, and n. 11 (1971). What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed: "So, under Title VII, every citizen could possess a gun *63 until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm." 114 Cong. Rec. 14773 (1968). See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. Simpson v. United States, 435 U.S. 6, 13 (1978). It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960's. See e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed: "The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly—to keep guns out of the hands of those who have demonstrated that `they may not be trusted to possess a firearm without becoming a threat to society.'" Scarborough v. United States, 431 U. S., at 572. The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional challenge, to the broad statutory scheme enacted by Congress. Section 1202 (a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction. The very structure of the Omnibus Act's Title IV, enacted *64 simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U.S. C. §§ 922 (g) and (h). Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from "any person . . . who has been convicted" of a felony, although the definition of "felony" differs somewhat in the respective statutes. But to limit the scope of §§ 922 (g) (1) and (h) (1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm. Finally, it is important to note that a convicted felon is not without relief. As has been observed above, the Omnibus Act, in §§ 1203 (2) and 925 (c), states that the disability may be removed by a qualifying pardon or the Secretary's consent. Also, petitioner, before obtaining his firearm, could have challenged his prior conviction in an appropriate proceeding in the Florida state courts. See Fla. Const., Art. 5, § 5 (3); L'Hommedieu v. State, 362 So. 2d 72 (Fla. App. 1978); Weir v. State, 319 So. 2d 80 (Fla. App. 1975). See also United States v. Morgan, 346 U.S. 502 (1954).[7] It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose "broadly to keep firearms away *65 from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U.S. 212, 218 (1976). With the face of the statute and the legislative history so clear, petitioner's argument that the statute nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is appropriate only when the statute provides a fair alternative construction. This statute could not be more plain. Swain v. Pressley, 430 U.S. 372, 378, and n. 11 (1977); United States v. Batchelder, 442 U. S., at 122-123. Similarly, any principle of lenity, see Rewis v. United States, 401 U.S. 808, 812 (1971), has no application. The touchstone of that principle is statutory ambiguity. Huddleston v. United States, 415 U.S. 814, 832 (1974); United States v. Batchelder, 442 U. S., at 121-122. There is no ambiguity here. We therefore hold that § 1202 (a) (1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds. IV The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979).[8] *66 Section 1202 (a) (1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S. C. App. § 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at 16298 (remarks of Rep. Pollock). Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. See, e. g., United States v. Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied, 424 U.S. 944 (1976). This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974) (disenfranchisement); De Veau v. Braisted, 363 U.S. 144 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189 (1898) (prohibition against the practice of medicine). We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction *67 is invalid for all purposes. See Scott v. Illinois, 440 U.S. 367 (1979); Loper v. Beto, 405 U. S., at 482. n. 11 (plurality opinion). Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction of sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Congress' judgment that a convicted felon. even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.[9] Enforcement of that essentially civil disability through a criminal sanction does not "support guilt or enhance punishment." see Burgett, 389 U. S., at 115, on the basis of a conviction that is unreliable when one considers Congress' broad purpose. Moreover, unlike the situation in Burgett, the sanction imposed by § 1202 (a) (1) attaches immediately upon the defendant's first conviction. Again, it is important to note that a convicted felon may challenge the validity of a prior conviction. or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior Convictions and the Gun Control Act of 1968. *68 76 Colum. L. Rev. 326, 338-339 (1976). Cf. Walker v. City of Birmingham, 388 U.S. 307 (1967). The judgment of the Court of Appeals is affirmed. It is so ordered. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.

This case presents the question whether a defendant's extant prior conviction, flawed because he was without counsel, as required by may constitute the predicate for a subsequent conviction under 2 (a) (1), as amended, of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. C. App. 2 (a) (1).[1] I In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony *57 for breaking and entering with intent to commit a misdemeanor. See Fla. Stat. 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U.S. C. App. 3 (2) and 18 U.S. C. 925 (c). In January 17, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment with having knowingly received and possessed at that time a specified firearm, in violation of 18 U.S. C. App. 2 (a) (1).[2] He waived a jury and was given a bench trial. It was stipulated that the weapon in question had been shipped in interstate commerce. The Government introduced in evidence an exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10. Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding.[3] He claimed that under a violation of 2 *58 (a) (1) could not be predicated on a prior conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner's status under 2 (a) (1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time. On appeal, the United Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. It held that a defendant, purely as a defense to a prosecution under 2 (a) (1), could not attack collatery an outstanding prior felony conviction, and that the statutory prohibition applied irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also rejected Lewis' constitutional argument to the effect that the use of the prior conviction as a predicate for his prosecution under 2 (a) (1) violated his rights under the Fifth and Sixth Amendments. Because of conflict among the Courts of Appeals,[4] we granted certiorari. *59 II Four cases decided by this Court provide the focus for petitioner's attack upon his conviction. The first, and pivotal one, is where the Court held that a state felony conviction without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. *60 The second case is There the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a State's recidivist statute. The third is United where it was held that such a conviction could not be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is where the Court disowed the use of the conviction to impeach the general credibility of the defendant. The prior conviction, the plurality opinion said, "lacked reliability." quoting We, of course, accept these rulings for purposes of the present case. Petitioner's position, however, is that the four cases require a reversal of his conviction under 2 (a) (1) on both statutory and constitutional grounds. III The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the "starting point" must be the language of the statute itself. See also Touche Ross & ; Southeastern Community An examination of 2 (a) (1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a court of the United or of a State of a felony." No modifier is present, and nothing suggests any restriction on the scope of the term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]." United ; see United The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is *61 relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury.[5] The obvious breadth of the language may well reflect the expansive legislative approach revealed by Congress' express findings and declarations, in 18 U.S. C. App. 1,[6] concerning the problem of firearm abuse by felons and certain specificy described persons. Other provisions of the statute demonstrate and reinforce its broad sweep. Section 3 enumerates exceptions to *62 2 (a) (1) (a prison inmate who by reason of his duties has expressly been entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly been authorized to receive, possess, or transport a firearm). In addition, 2 (c) (2) defines "felony" to exclude certain state crimes punishable by no more than two years' imprisonment. No exception, however, is made for a person whose outstanding felony conviction ultimately might turn out to be invalid for any reason. On its face, therefore, 2 (a) (1) contains nothing by way of restrictive language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to chenge, by way of defense, the validity or constitutionality of the predicate felony. See, e. g., 18 U.S. C. 3575 (e) (dangerous special offender) and 21 U.S. C. 851 (c) (2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 10). When we turn to the legislative history of 2 (a) (1), we find nothing to suggest that Congress was willing to ow a defendant to question the validity of his prior conviction as a defense to a charge under 2 (a) (1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Acts of 1968, It was added by way of a floor amendment to the Act and thus was not a subject of discussion in the legislative reports. See United ; ; United What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional chenge, as the criterion. For example, the Senator observed: "So, under Title VII, every citizen could possess a gun *63 until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm." 114 Cong. Rec. 14773 (1968). See also Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960's. See e. g., S. Rep. No. 10, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed: "The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly—to keep guns out of the hands of those who have demonstrated that `they may not be trusted to possess a firearm without becoming a threat to society.'" The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional chenge, to the broad statutory scheme enacted by Congress. Section 2 (a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction. The very structure of the Omnibus Act's Title IV, enacted *64 simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U.S. C. 922 (g) and (h). Actuy, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from "any person who has been convicted" of a felony, although the definition of "felony" differs somewhat in the respective statutes. But to limit the scope of 922 (g) (1) and (h) (1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm. Finy, it is important to note that a convicted felon is not without relief. As has been observed above, the Omnibus Act, in 3 (2) and 925 (c), states that the disability may be removed by a qualifying pardon or the Secretary's consent. Also, petitioner, before obtaining his firearm, could have chenged his prior conviction in an appropriate proceeding in the Florida state courts. See Fla. Const., Art. 5, 5 (3); ; See also United v. Morgan,[7] It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose "broadly to keep firearms away *65 from the persons Congress classified as potentiy irresponsible and dangerous." Barrett v. United With the face of the statute and the legislative history so clear, petitioner's argument that the statute nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is appropriate only when the statute provides a fair alternative construction. This statute could not be more plain. ; United -123. Similarly, any principle of lenity, see Rewis v. United has no application. The touchstone of that principle is statutory ambiguity. Huddleston v. United ; United -122. There is no ambiguity here. We therefore hold that 2 (a) (1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds. IV The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made or they `have some relevance to the purpose for which the classification is made.'" Marsh v. United quoting from and See[8] *66 Section 2 (a) (1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S. C. App. 1, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especiy to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. 114 Cong. Rec. 220 (1968) (remarks of Sen. Tydings); Congress could rationy conclude that any felony conviction, even an egedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. See, e. g., United v. Ransom, cert. denied, This Court has recognized repeatedly that a legislature constitutiony may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See ; De ; We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Tucker, and Loper, The Court, however, has never suggested that an uncounseled conviction *67 is invalid for purposes. See ; U. S., at 482. n. 11 (plurality opinion). Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction of sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentiy dangerous persons. Congress' judgment that a convicted felon. even one whose conviction was egedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.[9] Enforcement of that essentiy civil disability through a criminal sanction does not "support guilt or enhance punishment." see on the basis of a conviction that is unreliable when one considers Congress' broad purpose. Moreover, unlike the situation in the sanction imposed by 2 (a) (1) attaches immediately upon the defendant's first conviction. Again, it is important to note that a convicted felon may chenge the validity of a prior conviction. or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior Convictions and the Gun Control Act of 1968. *68 Cf. The judgment of the Court of Appeals is affirmed. It is so ordered. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.

Justice Marshall

dissenting

Guam v. Olsen

https://www.courtlistener.com/opinion/109660/guam-v-olsen/

https://www.courtlistener.com/api/rest/v3/clusters/109660/

1976-107

Although this case may at first glance seem unimportant to anyone but the residents of Guam, the result of the Court's *205 decision is perhaps unprecedented in our history. The Court today abolishes the Supreme Court of Guam, a significant part of the system of self-government established by some 85,000 American citizens through their freely elected legislature.[1] The Court's error, in my view, lies in its misinterpretation of the Organic Act of Guam. I do not doubt that Congress has the authority in the exercise of its plenary power over Territories of the United States, Art. IV, § 3, to reverse Guam's decision to reorganize its local court system. In this case, however, Congress has plainly authorized enactment of the challenged legislation, while there has been no corresponding delegation to this Court of the congressional power to veto such laws. Because "our judicial function" is limited "to apply[ing] statutes on the basis of what Congress has written, not what Congress might have written," United States v. Great Northern R. Co., 343 U.S. 562, 575 (1952), I must respectfully dissent. In reaching its decision, the Court focuses exclusively on the meaning of the second half of the second sentence of § 22 (a) of the Organic Act of Guam, 64 Stat. 389.[2] With all respect, this approach ignores the horse while concentrating on minute details of the cart's design. If the sentences of § 22 *206 (a) are simply read in the order in which they are written, their meaning is plain without resort to complex exegesis. The first sentence creates the federal "District Court of Guam." It goes on to provide that "the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam." This language is strikingly similar to the familiar words of Art. III, § 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Both provisions describe the bodies that will exercise the judicial power. They name one court and mandate its establishment. They leave the creation of the remainder of the court system to the legislature. But there is one key distinction: Where Art. III expressly describes the relationship among the courts, making one "supreme" and the others "inferior," § 22 (a) is silent. The only reasonable conclusion that can be drawn from this distinction is that the Organic Act, unlike our Constitution, was intended to allow the elected representatives of the people governed by the courts to control the relationship among the courts. The absence of any indication of a superior-inferior structure in § 22 (a) also indicates that there is no reason to consider the federal and local courts other than co-equal in matters as to which they share jurisdiction, i. e., cases that might be appealed. Rather, the conspicuously incomplete emulation of the well-known Art. III model suggests that the people of Guam may terminate the District Court's appellate jurisdiction. The Court ascribes great significance to the different language used to describe the legislature's power to "transfer" trial jurisdiction to the local courts, as contrasted with the power to "determine" appellate jurisdiction. The words, read in context, seem to me to be no more than alternative expressions for the same concept, used in the interest of avoiding *207 repetition. Thus, the first sentence of § 22 (a) gives Guam the authority to establish any courts it deems necessary. The last sentence of the section, also ignored in the Court's analysis, gives Guam the power to prescribe the "jurisdiction of and procedure in" such local courts. "Determine" as used in the context of the second sentence of § 22 (a) is an obvious synonym for "grant." If the Guam Legislature may grant the District Court appellate jurisdiction in the first instance, it has the converse power to withdraw it. Read as a whole, § 22 (a) plainly encompasses the power to give all appellate jurisdiction to a local court. The Court relies on the fact that this interpretation of the Organic Act might insulate decisions of the local courts that involve questions of federal constitutional or statutory law from review in Art. III courts, something which other territorial charters have apparently not granted. With respect to the latter point, it is worth nothing that Guam is a small and isolated possession that Congress might well have wished to give unusual autonomy in local affairs. No doubt, too, Congress' sense of the proper way to govern far-distant citizens has changed considerably in recent decades from the expansionist ethic which prevailed when Hawaii was annexed, the Spanish possessions (including Guam) ceded, and the Virgin Islands purchased. It is thus not surprising to find a broad authorization for self-government granted by the Organic Act passed in 1950. And it speaks well for the good sense of the people of Guam that they observed the functioning of the judicial system on their island for 23 years before deciding that a local appellate court would best serve their needs. This hiatus, therefore, does not indicate that Guam lacked the power to act, as the Court assumes, ante, at 201, but rather that the people deemed it unwise at that stage in their development to do so. Moreover, as careful analysis of the relevant sections of other territorial charters demonstrates, see Agana Bay Dev. Co., Ltd. v. Supreme Court of Guam, 529 *208 F. 2d 952, 957-958 (CA9 1976), "the Guam Organic Act is unique and it delegates the widest powers of any of the territories to the legislature for the creation of appellate courts." Id., at 957. If there are constitutional problems with this interpretation of the Organic Act, see ante, at 201-202, 204, they do not arise from the action of the Guam Legislature in creating a local appellate court. Rather, they stem from the absence of a statute expressly providing for appeals from the Guam courts to an Art. III tribunal. As petitioner notes, Brief for Petitioner 15-19, Congress has in its dealings with Guam historically reacted to the developing legal needs of the island rather than anticipating them. See, e. g., Corn v. Guam Coral Co., 318 F.2d 622, 624-627 (CA9 1963). This is not surprising; since the Organic Act did not set up a local court structure, it was impossible for Congress to foresee the manner in which the system as actually established would mesh with the Art. III courts. Most recently, Congress authorized Guam to design a local court system as part of the drafting of a new constitution, recognizing that it would thereafter be necessary to enact legislation "regulating the relationship between the local courts of Guam and the Federal judicial system." Pub. L. No. 94-584, 90 Stat. 2899, § 2 (b) (7). In view of the willingness of Congress to accommodate both the aspirations of the people of Guam and the requirements of federal jurisdiction, I think there is no need to search for constitutional questions where none yet exist.[3] In the meantime, we should not eviscerate the court system carefully devised by the people of Guam in the exercise of their right of self-government. I respectfully dissent.

Although this case may at first glance seem unimportant to anyone but the residents of Guam, the result of the Court's *205 decision is perhaps unprecedented in our history. The Court today abolishes the Supreme Court of Guam, a significant part of the system of self-government established by some 85,000 American citizens through their freely elected legislature.[1] The Court's error, in my view, lies in its misinterpretation of the Organic Act of Guam. I do not doubt that Congress has the authority in the exercise of its plenary power over Territories of the United States, Art. IV, 3, to reverse Guam's decision to reorganize its local court system. In this case, however, Congress has plainly authorized enactment of the challenged legislation, while there has been no corresponding delegation to this Court of the congressional power to veto such laws. Because "our judicial function" is limited "to apply[ing] statutes on the basis of what Congress has written, not what Congress might have written," United I must respectfully dissent. In reaching its decision, the Court focuses exclusively on the meaning of the second half of the second sentence of 22 (a) of the Organic Act of Guam,[2] With all respect, this approach ignores the horse while concentrating on minute details of the cart's design. If the sentences of 22 *206 (a) are simply read in the order in which they are written, their meaning is plain without resort to complex exegesis. The first sentence creates the federal "District Court of Guam." It goes on to provide that "the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam." This language is strikingly similar to the familiar words of Art. III, 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Both provisions describe the bodies that will exercise the judicial power. They name one court and mandate its establishment. They leave the creation of the remainder of the court system to the legislature. But there is one key distinction: Where Art. III expressly describes the relationship among the courts, making one "supreme" and the others "inferior," 22 (a) is silent. The only reasonable conclusion that can be drawn from this distinction is that the Organic Act, unlike our Constitution, was intended to allow the elected representatives of the people governed by the courts to control the relationship among the courts. The absence of any indication of a superior-inferior structure in 22 (a) also indicates that there is no reason to consider the federal and local courts other than co-equal in matters as to which they share jurisdiction, i. e., cases that might be appealed. Rather, the conspicuously incomplete emulation of the well-known Art. III model suggests that the people of Guam may terminate the District Court's appellate jurisdiction. The Court ascribes great significance to the different language used to describe the legislature's power to "transfer" trial jurisdiction to the local courts, as contrasted with the power to "determine" appellate jurisdiction. The words, read in context, seem to me to be no more than alternative expressions for the same concept, used in the interest of avoiding *207 repetition. Thus, the first sentence of 22 (a) gives Guam the authority to establish any courts it deems necessary. The last sentence of the section, also ignored in the Court's analysis, gives Guam the power to prescribe the "jurisdiction of and procedure in" such local courts. "Determine" as used in the context of the second sentence of 22 (a) is an obvious synonym for "grant." If the Guam Legislature may grant the District Court appellate jurisdiction in the first instance, it has the converse power to withdraw it. Read as a whole, 22 (a) plainly encompasses the power to give all appellate jurisdiction to a local court. The Court relies on the fact that this interpretation of the Organic Act might insulate decisions of the local courts that involve questions of federal constitutional or statutory law from review in Art. III courts, something which other territorial charters have apparently not granted. With respect to the latter point, it is worth nothing that Guam is a small and isolated possession that Congress might well have wished to give unusual autonomy in local affairs. No doubt, too, Congress' sense of the proper way to govern far-distant citizens has changed considerably in recent decades from the expansionist ethic which prevailed when Hawaii was annexed, the Spanish possessions (including Guam) ceded, and the Virgin Islands purchased. It is thus not surprising to find a broad authorization for self-government granted by the Organic Act passed in 1950. And it speaks well for the good sense of the people of Guam that they observed the functioning of the judicial system on their island for 23 years before deciding that a local appellate court would best serve their needs. This hiatus, therefore, does not indicate that Guam lacked the power to act, as the Court assumes, ante, at 201, but rather that the people deemed it unwise at that stage in their development to do so. Moreover, as careful analysis of the relevant sections of other territorial charters demonstrates, see Agana Bay Dev. Co., "the Guam Organic Act is unique and it delegates the widest powers of any of the territories to the legislature for the creation of appellate courts." If there are constitutional problems with this interpretation of the Organic Act, see ante, at 201-202, 204, they do not arise from the action of the Guam Legislature in creating a local appellate court. Rather, they stem from the absence of a statute expressly providing for appeals from the Guam courts to an Art. III tribunal. As petitioner notes, Brief for Petitioner 15-19, Congress has in its dealings with Guam historically reacted to the developing legal needs of the island rather than anticipating them. See, e. g., This is not surprising; since the Organic Act did not set up a local court structure, it was impossible for Congress to foresee the manner in which the system as actually established would mesh with the Art. III courts. Most recently, Congress authorized Guam to design a local court system as part of the drafting of a new constitution, recognizing that it would thereafter be necessary to enact legislation "regulating the relationship between the local courts of Guam and the Federal judicial system." Stat. 2899, 2 (b) (7). In view of the willingness of Congress to accommodate both the aspirations of the people of Guam and the requirements of federal jurisdiction, I think there is no need to search for constitutional questions where none yet exist.[3] In the meantime, we should not eviscerate the court system carefully devised by the people of Guam in the exercise of their right of self-government. I respectfully dissent.

Justice Stewart

concurring

San Antonio Independent School Dist. v. Rodriguez

https://www.courtlistener.com/opinion/108751/san-antonio-independent-school-dist-v-rodriguez/

https://www.courtlistener.com/api/rest/v3/clusters/108751/

1972-083

The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.[1] It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The uncharted directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today. Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties.[2] The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws. *60 There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.[3] And with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory—only by classifications that are wholly arbitrary or capricious. See, e. g., Rinaldi v. Yeager, 384 U.S. 305. This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, 366 U.S. 420, 425-426, in the following words: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." This doctrine is no more than a specific application of one of the first principles of constitutional adjudication— the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893). *61 Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently "suspect." Because of the historic purpose of the Fourteenth Amendment, the prime example of such a "suspect" classification is one that is based upon race. See, e. g., Brown v. Board of Education, 347 U.S. 483; McLaughlin v. Florida, 379 U.S. 184. But there are other classifications that, at least in some settings, are also "suspect"—for example, those based upon national origin,[4] alienage,[5] indigency,[6] or illegitimacy.[7] Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle.[8] *62 In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause.[9] Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally "suspect" criteria. Third, the Texas system does not rest "on grounds wholly irrelevant to the achievement of the State's objective." Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, supra, that the judgment of the District Court must be reversed. MR.

The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.[1] It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The uncharted directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today. Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties.[2] The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws. *60 There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.[3] And with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory—only by classifications that are wholly arbitrary or capricious. See, e. g., This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in in the following words: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." This doctrine is no more than a specific application of one of the first principles of constitutional adjudication— the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, *61 Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently "suspect." Because of the historic purpose of the Fourteenth Amendment, the prime example of such a "suspect" classification is one that is based upon race. See, e. g., ; But there are other classifications that, at least in some settings, are also "suspect"—for example, those based upon national origin,[4] alienage,[5] indigency,[6] or illegitimacy.[7] Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle.[8] *62 In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause.[9] Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally "suspect" criteria. Third, the Texas system does not rest "on grounds wholly irrelevant to the achievement of the State's objective." Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in that the judgment of the District Court must be reversed. MR.

Justice Brennan

dissenting

O'Lone v. Estate of Shabazz

https://www.courtlistener.com/opinion/111913/olone-v-estate-of-shabazz/

https://www.courtlistener.com/api/rest/v3/clusters/111913/

1986-119

The religious ceremony that these respondents seek to attend is not presumptively dangerous, and the prison has completely foreclosed respondents' participation in it. I therefore would require prison officials to demonstrate that the restrictions they have imposed are necessary to further an important government interest, and that these restrictions are no greater than necessary to achieve prison objectives. See Turner v. Safley, ante, at 101, n. 1 (STEVENS, J., concurring in part and dissenting in part) (citing Abdul Wali v. Coughlin, 754 F.2d 1015 (CA2 1985)). As a result, I would affirm the Court of Appeals' order to remand the case to the District Court, and would require prison officials to make this showing. Even were I to accept the Court's standard of review, however, I would remand the case to the District Court, since that court has not had the opportunity to review respondents' claim under the new standard established by this Court in Turner. As the record now stands, the reasonableness of foreclosing respondents' participation in Jumu'ah has not been established. I Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution"[1] that controls their daily existence in a way that few of us can imagine: "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, waking, speaking, silent, *355 working, playing, viewing, eating, voiding, reading, alone, with others. It is not so, with members of the general adult population. State governments have not undertaken to require members of the general adult population to rise at a certain hour, retire at a certain hour, eat at certain hours, live for periods with no companionship whatever, wear certain clothing, or submit to oral and anal searches after visiting hours, nor have state governments undertaken to prohibit members of the general adult population from speaking to one another, wearing beards, embracing their spouses, or corresponding with their lovers." Morales v. Schmidt, 340 F. Supp. 544, 550 (WD Wis. 1972). It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. Nothing can change the fact, however, that the society that these prisoners inhabit is our own. Prisons may exist on the margins of that society, but no act of will can sever them from the body politic. When prisoners emerge from the shadows to press a constitutional claim, they invoke no alien set of principles drawn from a distant culture. Rather, they speak the language of the charter upon which all of us rely to hold official power accountable. They ask us to acknowledge that power exercised in the shadows must be restrained at least as diligently as power that acts in the sunlight. In reviewing a prisoner's claim of the infringement of a constitutional right, we must therefore begin from the premise that, as members of this society, prisoners retain constitutional rights that limit the exercise of official authority against them. See Bell v. Wolfish, 441 U.S. 520, 545 (1979). At the same time, we must acknowledge that incarceration by its nature changes an individual's status in society. Prison officials have the difficult and often thankless job of preserving security in a potentially explosive setting, *356 as well as of attempting to provide rehabilitation that prepares some inmates for re-entry into the social mainstream. Both these demands require the curtailment and elimination of certain rights. The challenge for this Court is to determine how best to protect those prisoners' rights that remain. Our objective in selecting a standard of review is therefore not, as the Court declares, "[t]o ensure that courts afford appropriate deference to prison officials." Ante, at 349. The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather, it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing. The practice of Europe, wrote James Madison, was "charters of liberty . . . granted by power"; of America, "charters of power granted by liberty." 6 Writings of James Madison 83 (G. Hunt ed. 1906). While we must give due consideration to the needs of those in power, this Court's role is to ensure that fundamental restraints on that power are enforced. In my view, adoption of "reasonableness" as a standard of review for all constitutional challenges by inmates is inadequate to this task. Such a standard is categorically deferential, and does not discriminate among degrees of deprivation. From this perspective, restricting use of the prison library to certain hours warrants the same level of scrutiny as preventing inmates from reading at all. Various "factors" may be weighed differently in each situation, but the message to prison officials is clear: merely act "reasonably" and your actions will be upheld. If a directive that officials act "reasonably" were deemed sufficient to check all exercises of power, the Constitution would hardly be necessary. Yet the Court deems this single standard adequate to restrain any type of conduct in which prison officials might engage. *357 It is true that the degree of deprivation is one of the factors in the Court's reasonableness determination. This by itself does not make the standard of review appropriate, however. If it did, we would need but a single standard for evaluating all constitutional claims, as long as every relevant factor were considered under its rubric. Clearly, we have never followed such an approach. A standard of review frames the terms in which justification may be offered, and thus delineates the boundaries within which argument may take place.[2] The use of differing levels of scrutiny proclaims that on some occasions official power must justify itself in a way that otherwise it need not. A relatively strict standard of review is a signal that a decree prohibiting a political demonstration on the basis of the participants' political beliefs is of more serious concern, and therefore will be scrutinized more closely, than a rule limiting the number of demonstrations that may take place downtown at noon. Thus, even if the absolute nature of the deprivation may be taken into account in the Court's formulation, it makes a difference that this is merely one factor in determining if official conduct is "reasonable." Once we provide such an elastic and deferential principle of justification, "[t]he principle . . . lies about like a loaded weapon ready for the hand of any authority that can bring forth a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes." Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., *358 dissenting). Mere assertions of exigency have a way of providing a colorable defense for governmental deprivation, and we should be especially wary of expansive delegations of power to those who wield it on the margins of society. Prisons are too often shielded from public view; there is no need to make them virtually invisible. An approach better suited to the sensitive task of protecting the constitutional rights of inmates is laid out by Judge Kaufman in Abdul Wali v. Coughlin, 754 F.2d 1015 (CA2 1985). That approach maintains that the degree of scrutiny of prison regulations should depend on "the nature of the right being asserted by prisoners, the type of activity in which they seek to engage, and whether the challenged restriction works a total deprivation (as opposed to a mere limitation) on the exercise of that right." Id., at 1033. Essentially, if the activity in which inmates seek to engage is presumptively dangerous, or if a regulation merely restricts the time, place, or manner in which prisoners may exercise a right, a prison regulation will be invalidated only if there is no reasonable justification for official action. Ibid. Where exercise of the asserted right is not presumptively dangerous, however, and where the prison has completely deprived an inmate of that right, then prison officials must show that "a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restrictions are no greater than necessary to effectuate the governmental objective involved." Ibid. The court's analytical framework in Abdul Wali recognizes that in many instances it is inappropriate for courts "to substitute our judgments for those of trained professionals with years of firsthand experience." Ibid. It would thus apply a standard of review identical to the Court's "reasonableness" standard in a significant percentage of cases. At the same time, the Abdul Wali approach takes seriously the Constitution's function of requiring that official power be called to account when it completely deprives a person of a right that *359 society regards as basic. In this limited number of cases, it would require more than a demonstration of "reasonableness" to justify such infringement. To the extent that prison is meant to inculcate a respect for social and legal norms, a requirement that prison officials persuasively demonstrate the need for the absolute deprivation of inmate rights is consistent with that end. Furthermore, prison officials are in control of the evidence that is essential to establish the superiority of such deprivation over other alternatives. It is thus only fair for these officials to be held to a stringent standard of review in such extreme cases. The prison in this case has completely prevented respondent inmates from attending the central religious service of their Muslim faith. I would therefore hold prison officials to the standard articulated in Abdul Wali, and would find their proffered justifications wanting. The State has neither demonstrated that the restriction is necessary to further an important objective nor proved that less extreme measures may not serve its purpose. Even if I accepted the Court's standard of review, however, I could not conclude on this record that prison officials have proved that it is reasonable to preclude respondents from attending Jumu'ah. Petitioners have provided mere unsubstantiated assertions that the plausible alternatives proposed by respondents are infeasible. II In Turner, the Court set forth a framework for reviewing allegations that a constitutional right has been infringed by prison officials. The Court found relevant to that review "whether there are alternative means of exercising the right that remain open to prison inmates." Ante, at 90. The Court in this case acknowledges that "respondents' sincerely held religious beliefs compe[l] attendance at Jumu'ah," ante, at 345, and concedes that there are "no alternative means of attending Jumu'ah." Ante, at 351. Nonetheless, the Court finds that prison policy does not work a complete *360 deprivation of respondents' asserted religious right, because respondents have the opportunity to participate in other religious activities. Ante, at 352. This analysis ignores the fact that, as the District Court found, Jumu'ah is the central religious ceremony of Muslims, "comparable to the Saturday service of the Jewish faith and the Sunday service of the various Christian sects." Shabazz v. O'Lone, 595 F. Supp. 928, 930 (NJ 1984). As with other faiths, this ceremony provides a special time in which Muslims "assert their identity as a community covenanted to God." Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 32. As a result: "unlike other Muslim prayers which are performed individually and can be made up if missed, the Jumu'ah is obligatory, cannot be made up, and must be performed in congregation. The Jumu'ah is therefore regarded as the central service of the Muslim religion, and the obligation to attend is commanded by the Qur'an, the central book of the Muslim religion." 595 F. Supp., at 930. Jumu'ah therefore cannot be regarded as one of several essentially fungible religious practices. The ability to engage in other religious activities cannot obscure the fact that the denial at issue in this case is absolute: respondents are completely foreclosed from participating in the core ceremony that reflects their membership in a particular religious community. If a Catholic prisoner were prevented from attending Mass on Sunday, few would regard that deprivation as anything but absolute, even if the prisoner were afforded other opportunities to pray, to discuss the Catholic faith with others, and even to avoid eating meat on Friday if that were a preference. Prison officials in this case therefore cannot show that " `other avenues' remain available for the exercise of the asserted right." Turner, ante, at 90 (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 131 (1977)). Under the Court's approach, as enunciated in Turner, the availability of other means of exercising the right in question *361 counsels considerable deference to prison officials. Ante, at 90. By the same token, the infliction of an absolute deprivation should require more than mere assertion that such a deprivation is necessary. In particular, "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an `exaggerated response' to prison concerns." Ibid. In this case, petitioners have not established the reasonableness of their policy, because they have provided only bare assertions that the proposals for accommodation offered by respondents are infeasible. As discussed below, the federal policy of permitting inmates in federal prisons to participate in Jumu'ah, as well as Leesburg's own policy of permitting participation for several years, lends plausibility to respondents' suggestion that their religious practice can be accommodated. In Turner, the Court found that the practices of the Federal Bureau of Prisons were relevant to the availability of reasonable alternatives to the policy under challenge.[3] In upholding a ban on inmate-to-inmate mail, the Court noted that the Bureau had adopted "substantially similar restrictions." Ante, at 93 (citing 28 CFR § 540.17 (1986)). In finding that there were alternatives to a stringent restriction on the ability to marry, the Court observed that marriages by inmates in federal prisons were generally permitted absent a threat to security or public safety. See ante, at 97 (citing 28 CFR § 551.10 (1986)). In the present case, it is therefore worth noting that Federal Bureau of Prisons regulations require the adjustment of work assignments to permit inmate participation in religious ceremonies, absent a threat to "security, safety, and good order." 28 CFR § 548.14 (1986). The Bureau's Directive implementing the regulations on Religious Beliefs and Practices of Committed Offenders, *362 28 CFR §§ 548.10-548.15 (1986), states that, with respect to scheduling religious observances, "[t]he more central the religious activity is to the tenets of the inmate's religious faith, the greater the presumption is for relieving the inmate from the institution program or assignment." App. to Brief for Respondents 8a. Furthermore, the Chaplain Director of the Bureau has spoken directly to the issue of participation of Muslim inmates in Jumu'ah: "Provision is made, by policy, in all Bureau facilities for the observance of Jumu-ah by all inmates in general population who wish to keep this faith practice. The service is held each Friday afternoon in the general time frame that corresponds to the requirements of Islamic jurisprudence. . . . "Subject only to restraints of security and good order in the institution all routine and normal work assignments are suspended for the Islamic inmates to ensure freedom to attend such services. . . . "In those institutions where the outside work details contain Islamic inmates, they are permitted access to the inside of the institution to attend the Jumu-ah." Id., at 1a. That Muslim inmates are able to participate in Jumu'ah throughout the entire federal prison system suggests that the practice is, under normal circumstances, compatible with the demands of prison administration.[4] Indeed, the Leesburg State Prison permitted participation in this ceremony for five years, and experienced no threats to security or safety as a result. In light of both standard federal prison practice and Leesburg's own past practice, a reasonableness test in this *363 case demands at least minimal substantiation by prison officials that alternatives that would permit participation in Jumu'ah are infeasible.[5] Under the standard articulated by the Court in Turner, this does not mean that petitioners are responsible for identifying and discrediting these alternatives; "prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Ante, at 90-91. When prisoners themselves present alternatives, however, and when they fairly call into question official claims that these alternatives are infeasible, we must demand at least some evidence beyond mere assertion that the religious practice at issue cannot be accommodated. Examination of the alternatives proposed in this case indicates that prison officials have not provided such substantiation. III Respondents' first proposal is that gang minimum prisoners be assigned to an alternative inside work detail on Friday, as they had been before the recent change in policy. Prison officials testified that the alternative work detail is now restricted to maximum security prisoners, and that they did not wish maximum and minimum security prisoners to *364 mingle. Even the District Court had difficulty with this assertion, as it commented that "[t]he defendants did not explain why inmates of different security levels are not mixed on work assignments when otherwise they are mixed." 595 F. Supp., at 932. The court found, nonetheless, that this alternative would be inconsistent with Standard 853's mandate to move gang minimum inmates to outside work details. Ibid. This conclusion, however, neglects the fact that the very issue is whether the prison's policy, of which Standard 853 is a part, should be administered so as to accommodate Muslim inmates. The policy itself cannot serve as a justification for its failure to provide reasonable accommodation. The record as it now stands thus does not establish that the Friday alternative work detail would create a problem for the institution. Respondents' second proposal is that gang minimum inmates be assigned to work details inside the main building on a regular basis. While admitting that the prison used inside details in the kitchen, bakery, and tailor shop, officials stated that these jobs are reserved for the riskiest gang minimum inmates, for whom an outside job might be unwise. Ibid. Thus, concluded officials, it would be a bad idea to move these inmates outside to make room for Muslim gang minimum inmates. Respondents contend, however, that the prison's own records indicate that there are a significant number of jobs inside the institution that could be performed by inmates posing a lesser security risk. This suggests that it might not be necessary for the riskier gang minimum inmates to be moved outside to make room for the less risky inmates. Officials provided no data on the number of inside jobs available, the number of high-risk gang minimum inmates performing them, the number of Muslim inmates that might seek inside positions, or the number of staff that would be necessary to monitor such an arrangement. Given the plausibility of respondents' claim, prison officials should present at least *365 this information in substantiating their contention that inside assignments are infeasible. Third, respondents suggested that gang minimum inmates be assigned to Saturday or Sunday work details, which would allow them to make up any time lost by attending Jumu'ah on Friday. While prison officials admitted the existence of weekend work details, they stated that "[s]ince prison personnel are needed for other programs on weekends, the creation of additional weekend details would be a drain on scarce human resources." Ibid. The record provides no indication, however, of the number of Muslims that would seek such a work detail, the current number of weekend details, or why it would be infeasible simply to reassign current Saturday or Sunday workers to Friday, rather than create additional details. The prison is able to arrange work schedules so that Jewish inmates may attend services on Saturday and Christian inmates may attend services on Sunday. Id., at 935. Despite the fact that virtually all inmates are housed in the main building over the weekend, so that the demand on the facility is greater than at any other time, the prison is able to provide sufficient staff coverage to permit Jewish and Christian inmates to participate in their central religious ceremonies. Given the prison's duty to provide Muslims a "reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts," Cruz v. Beto, 405 U.S. 319, 322 (1972), prison officials should be required to provide more than mere assertions of the infeasibility of weekend details for Muslim inmates. Finally, respondents proposed that minimum security inmates living at the Farm be assigned to jobs either in the Farm building or in its immediate vicinity. Since Standard 853 permits such assignments for full minimum inmates, and since such inmates need not return to prison facilities through the main entrance, this would interfere neither with Standard 853 nor the concern underlying the no-return policy.[6]*366 Nonetheless, prison officials stated that such an arrangement might create an "affinity group" of Muslims representing a threat to prison authority. Officials pointed to no such problem in the five years in which Muslim inmates were permitted to assemble for Jumu'ah, and in which the alternative Friday work detail was in existence. Nor could they identify any threat resulting from the fact that during the month of Ramadan all Muslim prisoners participate in both breakfast and dinner at special times.[7] Furthermore, there was no testimony that the concentration of Jewish or Christian inmates on work details or in religious services posed any type of "affinity group" threat. As the record now stands, prison officials have declared that a security risk is created by a grouping of Muslim inmates in the least dangerous security classification, but not by a grouping of maximum security inmates who are concentrated in a work detail inside the main building, and who are the only Muslims assured of participating in Jumu'ah. Surely, prison officials should be required to provide at least some substantiation for this facially implausible contention. Petitioners also maintained that the assignment of full minimum Muslim inmates to the Farm or its near vicinity might provoke resentment because of other inmates' perception that Muslims were receiving special treatment. Officials pointed to no such perception during the period in which the alternative Friday detail was in existence, nor to any resentment of the fact that Muslims' dietary preferences are accommodated and that Muslims are permitted to operate on a special schedule during the month of Ramadan. Nor do they identify any such problems created by the accommodation of *367 the religious preferences of inmates of other faiths. Once again, prison officials should be required at a minimum to identify the basis for their assertions. Despite the plausibility of the alternatives proposed by respondents in light of federal practice and the prison's own past practice, officials have essentially provided mere pronouncements that such alternatives are not workable. If this Court is to take seriously its commitment to the principle that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner, ante, at 84, it must demand more than this record provides to justify a Muslim inmate's complete foreclosure from participation in the central religious service of the Muslim faith. IV That the record in this case contains little more than assertions is not surprising in light of the fact that the District Court proceeded on the basis of the approach set forth in St. Claire v. Cuyler, 634 F.2d 109 (CA3 1980). That case held that mere "sincer[e]" and "arguably correct" testimony by prison officials is sufficient to demonstrate the need to limit prisoners' exercise of constitutional rights. Id., at 114 (quoting Jones, 433 U. S., at 127). This Court in Turner, ante, p. 78, however, set forth a more systematic framework for analyzing challenges to prison regulations. Turner directed attention to two factors of particular relevance to this case: the degree of constitutional deprivation and the availability of reasonable alternatives. The respondents in this case have been absolutely foreclosed from participating in the central religious ceremony of their Muslim faith. At least a colorable claim that such a drastic policy is not necessary can be made in light of the ability of federal prisons to accommodate Muslim inmates, Leesburg's own past practice of doing so, and the plausibility of the alternatives proposed by respondents. If the Court's standard of review is to represent anything more than reflexive deference to prison officials, any *368 finding of reasonableness must rest on firmer ground than the record now presents. Incarceration by its nature denies a prisoner participation in the larger human community. To deny the opportunity to affirm membership in a spiritual community, however, may extinguish an inmate's last source of hope for dignity and redemption.[8] Such a denial requires more justification than mere assertion that any other course of action is infeasible. While I would prefer that this case be analyzed under the approach set out in Part I, supra, I would at a minimum remand to the District Court for an analysis of respondents' claims in accordance with the standard enunciated by the Court in Turner and in this case. I therefore dissent.

The religious ceremony that these respondents seek to attend is not presumptively dangerous, and the prison has completely foreclosed respondents' participation in it. I therefore would require prison officials to demonstrate that the restrictions they have imposed are necessary to further an important government interest, and that these restrictions are no greater than necessary to achieve prison objectives. See Turner v. Safley, ante, at 101, n. 1 (STEVENS, J., concurring in part and dissenting in part) ). As a result, I would affirm the Court of Appeals' order to remand the case to the District Court, and would require prison officials to make this showing. Even were I to accept the Court's standard of review, however, I would remand the case to the District Court, since that court has not had the opportunity to review respondents' claim under the new standard established by this Court in Turner. As the record now stands, the reasonableness of foreclosing respondents' participation in Jumu'ah has not been established. I Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution"[1] that controls their daily existence in a way that few of us can imagine: "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, waking, speaking, silent, *355 working, playing, viewing, eating, voiding, reading, alone, with others. It is not so, with members of the general adult population. State governments have not undertaken to require members of the general adult population to rise at a certain hour, retire at a certain hour, eat at certain hours, live for periods with no companionship whatever, wear certain clothing, or submit to oral and anal searches after visiting hours, nor have state governments undertaken to prohibit members of the general adult population from speaking to one another, wearing beards, embracing their spouses, or corresponding with their lovers." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. Nothing can change the fact, however, that the society that these prisoners inhabit is our own. Prisons may exist on the margins of that society, but no act of will can sever them from the body politic. When prisoners emerge from the shadows to press a constitutional claim, they invoke no alien set of principles drawn from a distant culture. Rather, they speak the language of the charter upon which all of us rely to hold official power accountable. They ask us to acknowledge that power exercised in the shadows must be restrained at least as diligently as power that acts in the sunlight. In reviewing a prisoner's claim of the infringement of a constitutional right, we must therefore begin from the premise that, as members of this society, prisoners retain constitutional rights that limit the exercise of official authority against them. See At the same time, we must acknowledge that incarceration by its nature changes an individual's status in society. Prison officials have the difficult and often thankless job of preserving security in a potentially explosive setting, *356 as well as of attempting to provide rehabilitation that prepares some inmates for re-entry into the social mainstream. Both these demands require the curtailment and elimination of certain rights. The challenge for this Court is to determine how best to protect those prisoners' rights that remain. Our objective in selecting a standard of review is therefore not, as the Court declares, "[t]o ensure that courts afford appropriate deference to prison officials." Ante, at 349. The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather, it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing. The practice of Europe, wrote James Madison, was "charters of liberty granted by power"; of America, "charters of power granted by liberty." 6 Writings of James Madison 83 (G. Hunt ed. 1906). While we must give due consideration to the needs of those in power, this Court's role is to ensure that fundamental restraints on that power are enforced. In my view, adoption of "reasonableness" as a standard of review for all constitutional challenges by inmates is inadequate to this task. Such a standard is categorically deferential, and does not discriminate among degrees of deprivation. From this perspective, restricting use of the prison library to certain hours warrants the same level of scrutiny as preventing inmates from reading at all. Various "factors" may be weighed differently in each situation, but the message to prison officials is clear: merely act "reasonably" and your actions will be upheld. If a directive that officials act "reasonably" were deemed sufficient to check all exercises of power, the Constitution would hardly be necessary. Yet the Court deems this single standard adequate to restrain any type of conduct in which prison officials might engage. *357 It is true that the degree of deprivation is one of the factors in the Court's reasonableness determination. This by itself does not make the standard of review appropriate, however. If it did, we would need but a single standard for evaluating all constitutional claims, as long as every relevant factor were considered under its rubric. Clearly, we have never followed such an approach. A standard of review frames the terms in which justification may be offered, and thus delineates the boundaries within which argument may take place.[2] The use of differing levels of scrutiny proclaims that on some occasions official power must justify itself in a way that otherwise it need not. A relatively strict standard of review is a signal that a decree prohibiting a political demonstration on the basis of the participants' political beliefs is of more serious concern, and therefore will be scrutinized more closely, than a rule limiting the number of demonstrations that may take place downtown at noon. Thus, even if the absolute nature of the deprivation may be taken into account in the Court's formulation, it makes a difference that this is merely one factor in determining if official conduct is "reasonable." Once we provide such an elastic and deferential principle of justification, "[t]he principle lies about like a loaded weapon ready for the hand of any authority that can bring forth a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes." Mere assertions of exigency have a way of providing a colorable defense for governmental deprivation, and we should be especially wary of expansive delegations of power to those who wield it on the margins of society. Prisons are too often shielded from public view; there is no need to make them virtually invisible. An approach better suited to the sensitive task of protecting the constitutional rights of inmates is laid out by Judge Kaufman in Abdul That approach maintains that the degree of scrutiny of prison regulations should depend on "the nature of the right being asserted by prisoners, the type of activity in which they seek to engage, and whether the challenged restriction works a total deprivation (as opposed to a mere limitation) on the exercise of that right." Essentially, if the activity in which inmates seek to engage is presumptively dangerous, or if a regulation merely restricts the time, place, or manner in which prisoners may exercise a right, a prison regulation will be invalidated only if there is no reasonable justification for official action. Where exercise of the asserted right is not presumptively dangerous, however, and where the prison has completely deprived an inmate of that right, then prison officials must show that "a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restrictions are no greater than necessary to effectuate the governmental objective involved." The court's analytical framework in Abdul Wali recognizes that in many instances it is inappropriate for courts "to substitute our judgments for those of trained professionals with years of firsthand experience." It would thus apply a standard of review identical to the Court's "reasonableness" standard in a significant percentage of cases. At the same time, the Abdul Wali approach takes seriously the Constitution's function of requiring that official power be called to account when it completely deprives a person of a right that *359 society regards as basic. In this limited number of cases, it would require more than a demonstration of "reasonableness" to justify such infringement. To the extent that prison is meant to inculcate a respect for social and legal norms, a requirement that prison officials persuasively demonstrate the need for the absolute deprivation of inmate rights is consistent with that end. Furthermore, prison officials are in control of the evidence that is essential to establish the superiority of such deprivation over other alternatives. It is thus only fair for these officials to be held to a stringent standard of review in such extreme cases. The prison in this case has completely prevented respondent inmates from attending the central religious service of their Muslim faith. I would therefore hold prison officials to the standard articulated in Abdul Wali, and would find their proffered justifications wanting. The State has neither demonstrated that the restriction is necessary to further an important objective nor proved that less extreme measures may not serve its purpose. Even if I accepted the Court's standard of review, however, I could not conclude on this record that prison officials have proved that it is reasonable to preclude respondents from attending Jumu'ah. Petitioners have provided mere unsubstantiated assertions that the plausible alternatives proposed by respondents are infeasible. II In Turner, the Court set forth a framework for reviewing allegations that a constitutional right has been infringed by prison officials. The Court found relevant to that review "whether there are alternative means of exercising the right that remain open to prison inmates." Ante, at 90. The Court in this case acknowledges that "respondents' sincerely held religious beliefs compe[l] attendance at Jumu'ah," ante, at 345, and concedes that there are "no alternative means of attending Jumu'ah." Ante, at 351. Nonetheless, the Court finds that prison policy does not work a complete *360 deprivation of respondents' asserted religious right, because respondents have the opportunity to participate in other religious activities. Ante, at 352. This analysis ignores the fact that, as the District Court found, Jumu'ah is the central religious ceremony of Muslims, "comparable to the Saturday service of the Jewish faith and the Sunday service of the various Christian sects." As with other faiths, this ceremony provides a special time in which Muslims "assert their identity as a community covenanted to God." Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 32. As a result: "unlike other Muslim prayers which are performed individually and can be made up if missed, the Jumu'ah is obligatory, cannot be made up, and must be performed in congregation. The Jumu'ah is therefore regarded as the central service of the Muslim religion, and the obligation to attend is commanded by the Qur'an, the central book of the Muslim religion." 595 F. Supp., at Jumu'ah therefore cannot be regarded as one of several essentially fungible religious practices. The ability to engage in other religious activities cannot obscure the fact that the denial at issue in this case is absolute: respondents are completely foreclosed from participating in the core ceremony that reflects their membership in a particular religious community. If a Catholic prisoner were prevented from attending Mass on Sunday, few would regard that deprivation as anything but absolute, even if the prisoner were afforded other opportunities to pray, to discuss the Catholic faith with others, and even to avoid eating meat on Friday if that were a preference. Prison officials in this case therefore cannot show that " `other avenues' remain available for the exercise of the asserted right." Turner, ante, at 90 ). Under the Court's approach, as enunciated in Turner, the availability of other means of exercising the right in question *361 counsels considerable deference to prison officials. Ante, at 90. By the same token, the infliction of an absolute deprivation should require more than mere assertion that such a deprivation is necessary. In particular, "the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an `exaggerated response' to prison concerns." In this case, petitioners have not established the reasonableness of their policy, because they have provided only bare assertions that the proposals for accommodation offered by respondents are infeasible. As discussed below, the federal policy of permitting inmates in federal prisons to participate in Jumu'ah, as well as Leesburg's own policy of permitting participation for several years, lends plausibility to respondents' suggestion that their religious practice can be accommodated. In Turner, the Court found that the practices of the Federal Bureau of Prisons were relevant to the availability of reasonable alternatives to the policy under challenge.[3] In upholding a ban on inmate-to-inmate mail, the Court noted that the Bureau had adopted "substantially similar restrictions." Ante, at 93 (citing (1986)). In finding that there were alternatives to a stringent restriction on the ability to marry, the Court observed that marriages by inmates in federal prisons were generally permitted absent a threat to security or public safety. See ante, at 97 (citing (1986)). In the present case, it is therefore worth noting that Federal Bureau of Prisons regulations require the adjustment of work assignments to permit inmate participation in religious ceremonies, absent a threat to "security, safety, and good order." (1986). The Bureau's Directive implementing the regulations on Religious Beliefs and Practices of Committed Offenders, *362 (1986), states that, with respect to scheduling religious observances, "[t]he more central the religious activity is to the tenets of the inmate's religious faith, the greater the presumption is for relieving the inmate from the institution program or assignment." App. to Brief for Respondents 8a. Furthermore, the Chaplain Director of the Bureau has spoken directly to the issue of participation of Muslim inmates in Jumu'ah: "Provision is made, by policy, in all Bureau facilities for the observance of Jumu-ah by all inmates in general population who wish to keep this faith practice. The service is held each Friday afternoon in the general time frame that corresponds to the requirements of Islamic jurisprudence. "Subject only to restraints of security and good order in the institution all routine and normal work assignments are suspended for the Islamic inmates to ensure freedom to attend such services. "In those institutions where the outside work details contain Islamic inmates, they are permitted access to the inside of the institution to attend the Jumu-ah." at 1a. That Muslim inmates are able to participate in Jumu'ah throughout the entire federal prison system suggests that the practice is, under normal circumstances, compatible with the demands of prison administration.[4] Indeed, the Leesburg State Prison permitted participation in this ceremony for five years, and experienced no threats to security or safety as a result. In light of both standard federal prison practice and Leesburg's own past practice, a reasonableness test in this *363 case demands at least minimal substantiation by prison officials that alternatives that would permit participation in Jumu'ah are infeasible.[5] Under the standard articulated by the Court in Turner, this does not mean that petitioners are responsible for identifying and discrediting these alternatives; "prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Ante, at 90-91. When prisoners themselves present alternatives, however, and when they fairly call into question official claims that these alternatives are infeasible, we must demand at least some evidence beyond mere assertion that the religious practice at issue cannot be accommodated. Examination of the alternatives proposed in this case indicates that prison officials have not provided such substantiation. III Respondents' first proposal is that gang minimum prisoners be assigned to an alternative inside work detail on Friday, as they had been before the recent change in policy. Prison officials testified that the alternative work detail is now restricted to maximum security prisoners, and that they did not wish maximum and minimum security prisoners to *364 mingle. Even the District Court had difficulty with this assertion, as it commented that "[t]he defendants did not explain why inmates of different security levels are not mixed on work assignments when otherwise they are mixed." The court found, nonetheless, that this alternative would be inconsistent with Standard 853's mandate to move gang minimum inmates to outside work details. This conclusion, however, neglects the fact that the very issue is whether the prison's policy, of which Standard 853 is a part, should be administered so as to accommodate Muslim inmates. The policy itself cannot serve as a justification for its failure to provide reasonable accommodation. The record as it now stands thus does not establish that the Friday alternative work detail would create a problem for the institution. Respondents' second proposal is that gang minimum inmates be assigned to work details inside the main building on a regular basis. While admitting that the prison used inside details in the kitchen, bakery, and tailor shop, officials stated that these jobs are reserved for the riskiest gang minimum inmates, for whom an outside job might be unwise. Thus, concluded officials, it would be a bad idea to move these inmates outside to make room for Muslim gang minimum inmates. Respondents contend, however, that the prison's own records indicate that there are a significant number of jobs inside the institution that could be performed by inmates posing a lesser security risk. This suggests that it might not be necessary for the riskier gang minimum inmates to be moved outside to make room for the less risky inmates. Officials provided no data on the number of inside jobs available, the number of high-risk gang minimum inmates performing them, the number of Muslim inmates that might seek inside positions, or the number of staff that would be necessary to monitor such an arrangement. Given the plausibility of respondents' claim, prison officials should present at least *365 this information in substantiating their contention that inside assignments are infeasible. Third, respondents suggested that gang minimum inmates be assigned to Saturday or Sunday work details, which would allow them to make up any time lost by attending Jumu'ah on Friday. While prison officials admitted the existence of weekend work details, they stated that "[s]ince prison personnel are needed for other programs on weekends, the creation of additional weekend details would be a drain on scarce human resources." The record provides no indication, however, of the number of Muslims that would seek such a work detail, the current number of weekend details, or why it would be infeasible simply to reassign current Saturday or Sunday workers to Friday, rather than create additional details. The prison is able to arrange work schedules so that Jewish inmates may attend services on Saturday and Christian inmates may attend services on Sunday. Despite the fact that virtually all inmates are housed in the main building over the weekend, so that the demand on the facility is greater than at any other time, the prison is able to provide sufficient staff coverage to permit Jewish and Christian inmates to participate in their central religious ceremonies. Given the prison's duty to provide Muslims a "reasonable opportunity of pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts," prison officials should be required to provide more than mere assertions of the infeasibility of weekend details for Muslim inmates. Finally, respondents proposed that minimum security inmates living at the Farm be assigned to jobs either in the Farm building or in its immediate vicinity. Since Standard 853 permits such assignments for full minimum inmates, and since such inmates need not return to prison facilities through the main entrance, this would interfere neither with Standard 853 nor the concern underlying the no-return policy.[6]*366 Nonetheless, prison officials stated that such an arrangement might create an "affinity group" of Muslims representing a threat to prison authority. Officials pointed to no such problem in the five years in which Muslim inmates were permitted to assemble for Jumu'ah, and in which the alternative Friday work detail was in existence. Nor could they identify any threat resulting from the fact that during the month of Ramadan all Muslim prisoners participate in both breakfast and dinner at special times.[7] Furthermore, there was no testimony that the concentration of Jewish or Christian inmates on work details or in religious services posed any type of "affinity group" threat. As the record now stands, prison officials have declared that a security risk is created by a grouping of Muslim inmates in the least dangerous security classification, but not by a grouping of maximum security inmates who are concentrated in a work detail inside the main building, and who are the only Muslims assured of participating in Jumu'ah. Surely, prison officials should be required to provide at least some substantiation for this facially implausible contention. Petitioners also maintained that the assignment of full minimum Muslim inmates to the Farm or its near vicinity might provoke resentment because of other inmates' perception that Muslims were receiving special treatment. Officials pointed to no such perception during the period in which the alternative Friday detail was in existence, nor to any resentment of the fact that Muslims' dietary preferences are accommodated and that Muslims are permitted to operate on a special schedule during the month of Ramadan. Nor do they identify any such problems created by the accommodation of *367 the religious preferences of inmates of other faiths. Once again, prison officials should be required at a minimum to identify the basis for their assertions. Despite the plausibility of the alternatives proposed by respondents in light of federal practice and the prison's own past practice, officials have essentially provided mere pronouncements that such alternatives are not workable. If this Court is to take seriously its commitment to the principle that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," Turner, ante, at 84, it must demand more than this record provides to justify a Muslim inmate's complete foreclosure from participation in the central religious service of the Muslim faith. IV That the record in this case contains little more than assertions is not surprising in light of the fact that the District Court proceeded on the basis of the approach set forth in St. That case held that mere "sincer[e]" and "arguably correct" testimony by prison officials is sufficient to demonstrate the need to limit prisoners' exercise of constitutional rights. (quoting ). This Court in Turner, ante, p. 78, however, set forth a more systematic framework for analyzing challenges to prison regulations. Turner directed attention to two factors of particular relevance to this case: the degree of constitutional deprivation and the availability of reasonable alternatives. The respondents in this case have been absolutely foreclosed from participating in the central religious ceremony of their Muslim faith. At least a colorable claim that such a drastic policy is not necessary can be made in light of the ability of federal prisons to accommodate Muslim inmates, Leesburg's own past practice of doing so, and the plausibility of the alternatives proposed by respondents. If the Court's standard of review is to represent anything more than reflexive deference to prison officials, any *368 finding of reasonableness must rest on firmer ground than the record now presents. Incarceration by its nature denies a prisoner participation in the larger human community. To deny the opportunity to affirm membership in a spiritual community, however, may extinguish an inmate's last source of hope for dignity and redemption.[8] Such a denial requires more justification than mere assertion that any other course of action is infeasible. While I would prefer that this case be analyzed under the approach set out in I, I would at a minimum remand to the District Court for an analysis of respondents' claims in accordance with the standard enunciated by the Court in Turner and in this case. I therefore dissent.

Justice Stevens

majority

Milwaukee v. Cement Div., National Gypsum Co.

https://www.courtlistener.com/opinion/117946/milwaukee-v-cement-div-national-gypsum-co/

https://www.courtlistener.com/api/rest/v3/clusters/117946/

1994-068

This is an admiralty case in which the plaintiff's loss was primarily attributable to its own negligence. The question presented is whether that fact, together with the existence of a genuine dispute over liability, justified the District Court's departure from the general rule that prejudgment interest should be awarded in maritime collision cases. I Respondents are the owner and the insurers of the E. M. Ford, a ship that sank in Milwaukee's outer harbor on Christmas Eve 1979. At the time of this disaster, the Ford was berthed in a slip owned by the city of Milwaukee (City). In the course of a severe storm, she broke loose from her moorings, battered against the head wall of the slip, took on water, and sank. She was subsequently raised and repaired. In 1980 the Ford `s owner, the Cement Division of National Gypsum Co. (National Gypsum), brought suit against the City, invoking the District Court's admiralty and maritime *191 jurisdiction.[1] The complaint alleged that the City had breached its duty as a wharfinger by assigning the vessel to a berthing slip known to be unsafe in heavy winds and by failing to give adequate warning of hidden dangers in the slip. The plaintiff sought damages of $4.5 million, later increased to $6.5 million. The City denied fault and filed a $250,000 counterclaim for damage to its dock. The City alleged that National Gypsum was negligent in leaving the ship virtually unmanned in winter, with no means aboard for monitoring weather conditions or summoning help. In 1986 the District Court conducted a 3-week trial on the issue of liability. Finding that both National Gypsum and the City had been negligent, the court determined that the owner bore 96% of the responsibility for the disaster, while the City bore 4% of the fault. Given the disparity in the parties' damages, a final judgment giving effect to that allocation (and awarding the damages sought in the pleadings) would have essentially left each party to bear its own losses. Respondents took an interlocutory appeal from the District Court's ruling.[2] The Court of Appeals for the Seventh Circuit agreed with the District Court's conclusion that both parties were at fault, and that the owner's negligence was "more egregious" than the City's, but it rejected the allocation of 96% of the responsibility to the owner as clearly erroneous. Cement Div., National Gypsum Co. v. Milwaukee, 915 F.2d 1154, 1159 (1990), cert. denied, 499 U.S. 960 (1991). After making its own analysis of the record, the Court of *192 Appeals apportioned liability two-thirds to National Gypsum and one-third to the City. 915 F.2d, at 1160. Thereafter the parties entered into a partial settlement fixing respondents' damages, excluding prejudgment interest, at $1,677,541.86.[3] The parties agreed that any claim for interest would be submitted to the District Court for decision. A partial judgment for the stipulated amount was entered and satisfied. Respondents then sought an award of over $5.3 million in prejudgment interest.[4] The District Court denied respondents' request. It noted that "an award of prejudgment interest calculated from the date of the loss is the rule rather than the exception in cases brought under a district court's admiralty jurisdiction," App. to Pet. for Cert. 21a, but held that special circumstances justified a departure from that rule in this case. The court explained: "In the instant case the record shows that from the outset there has been a genuine dispute over [respondents'] good faith claim that the City of Milwaukee was negligent for failing to warn the agents of [National *193 Gypsum] (who were planning to leave the FORD unmanned during the Christmas holidays) that a winter storm could create conditions in the outer harbor at Milwaukee which could damage the ship. The trial court and the court of appeals both found mutual fault for the damage which ensued to the ship and to the [City's] dock. The court of appeals ascribed two-thirds of the negligence to [National Gypsum]. Thus, in this situation the court concludes that [National Gypsum's] contributory negligence was of such magnitude that an award of prejudgment interest would be inequitable." Id., at 22a.[5] The Court of Appeals reversed. 31 F.3d 581 (1994). It noted that prior to this Court's announcement of the comparative fault rule in United States v. Reliable Transfer Co., 421 U.S. 397 (1975), some courts had denied prejudgment interest in order to mitigate the harsh effects of the earlier rule commanding an equal division of damages whenever a collision resulted from the fault of both parties, even though one party was only slightly negligent. In the court's view, however, after the divided damages rule was "thrown overboard" and replaced with comparative fault, mutual fault could no longer provide a basis for denying prejudgment interest. 31 F.3d, at 584-585. The Court of Appeals also read our decision in West Virginia v. United States, 479 U.S. 305, 311, n. 3 (1987), as disapproving of a "balancing of the equities" as a method of deciding whether to allow prejudgment interest. 31 F.3d, at 585. The Court of Appeals' decision deepened an existing Circuit split regarding the criteria for denying prejudgment interest in maritime collision cases. Compare, e. g., Inland *194 Oil & Transport Co. v. Ark-White Towing Co., 696 F.2d 321 (CA5 1983) (genuine dispute over good-faith claim in mutual fault setting justifies denial of prejudgment interest), with Alkmeon Naviera, S. A. v. M/V Marina L, 633 F.2d 789 (CA9 1980) (contrary rule). We granted certiorari, 513 U.S. 1072 (1995), and now affirm. II Although Congress has enacted a statute governing the award of postjudgment interest in federal court litigation, see 28 U.S. C. § 1961, there is no comparable legislation regarding prejudgment interest. Far from indicating a legislative determination that prejudgment interest should not be awarded, however, the absence of a statute merely indicates that the question is governed by traditional judgemade principles. Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 336-337 (1988); Rodgers v. United States, 332 U.S. 371, 373 (1947). Those principles are well developed in admiralty, where "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies." Reliable Transfer, 421 U. S., at 409. Throughout our history, admiralty decrees have included provisions for prejudgment interest. In Del Col v. Arnold, 3 Dall. 333, a prize case decided in 1796, we affirmed a decree awarding the libellant interest from "the day of capture." Id., at 334. In The Amiable Nancy, 3 Wheat. 546 (1818), we considered a similar decree. In augmenting the damages awarded by the lower court, we directed that the additional funds should bear prejudgment interest, as had the damages already awarded by the lower court. Id., at 562-563. The Amiable Nancy arose out of the "gross and wanton" seizure of a Haitian vessel near the island of Antigua by the Scourge, an American privateer. Id., at 546-547, 558. In his opinion for the Court, Justice Story explained that even though the "loss of the supposed profits" of the Amiable Nancy `s voyage was not recoverable, "the prime cost, or value of the property *195 lost, at the time of the loss, and in case of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages." Id., at 560 (emphasis added). We applied the same rule in The Umbria, 166 U.S. 404, 421 (1897), explaining that "in cases of total loss by collision damages are limited to the value of the vessel, with interest thereon, and the net freight pending at the time of the collision." (Emphasis added.)[6] The Courts of Appeals have consistently and correctly construed decisions such as these as establishing a general rule that prejudgment interest should be awarded in maritime collision cases, subject to a limited exception for "peculiar" or "exceptional" circumstances. See, e. g., Inland Oil & Transport Co., 696 F. 2d, at 327; Central Rivers Towing, Inc. v. Beardstown, 750 F.2d 565, 574 (CA7 1984); Ohio River Co. v. Peavey Co., 731 F.2d 547, 549 (CA8 1984); Alkmeon Naviera, 633 F. 2d, at 797; Parker Towing Co. v. Yazoo River Towing, Inc., 794 F.2d 591, 594 (CA11 1986). The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss.[7] Full compensation has long been recognized as a *196 basic principle of admiralty law, where "[r]estitutio in integrum is the leading maxim applied by admiralty courts to ascertain damages resulting from a collision." Standard Oil Co. of N. J. v. Southern Pacific Co., 268 U.S. 146, 158 (1925) (citing The Baltimore, 8 Wall. 377, 385 (1869)). By compensating "for the loss of use of money due as damages from the time the claim accrues until judgment is entered," West Virginia, 479 U. S., at 310-311, n. 2, an award of prejudgment interest helps achieve the goal of restoring a party to the condition it enjoyed before the injury occurred, The President Madison, 91 F.2d 835, 845-846 (CA9 1937). Despite admiralty's traditional hospitality to prejudgment interest, however, such an award has never been automatic. In The Scotland, 118 U.S. 507, 518-519 (1886), we stated that the "allowance of interest on damages is not an absolute right. Whether it ought or ought not to be allowed depends upon the circumstances of each case, and rests very much in the discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury." See also The Maggie J. Smith, 123 U.S. 349, 356 (1887). Although we have never attempted to exhaustively catalog the circumstances that will justify the denial of interest, and do not do so today,[8] the most obvious example is the plaintiff's responsibility for "undue delay in prosecuting the lawsuit." General Motors Corp. v. Devex Corp., 461 U.S. 648, 657 (1983). Other circumstances may appropriately be invoked as warranted by the facts of particular cases. In this case, the City asks us to characterize two features of the instant litigation as sufficiently unusual to justify a departure from the general rule that prejudgment interest should be awarded to make the injured party whole. First, the City stresses the fact that there was a good-faith dispute *197 over its liability for respondents' loss. In our view, however, this fact carries little weight. If interest were awarded as a penalty for bad-faith conduct of the litigation, the City's argument would be well taken. But prejudgment interest is not awarded as a penalty; it is merely an element of just compensation. The City's "good-faith" argument has some resonance with the venerable common-law rule that prejudgment interest is not awarded on unliquidated claims (those where the precise amount of damages at issue cannot be computed). If a party contests liability in good faith, it will usually be the case that the party's ultimate exposure is uncertain. But the liquidated/unliquidated distinction has faced trenchant criticism for a number of years.[9] Moreover, that distinction "has never become so firmly entrenched in admiralty as it has been at law." Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 592 (CA2 1961).[10] Any fixed rule allowing prejudgment interest only on liquidated claims would be difficult, if not impossible, to reconcile with admiralty's traditional presumption. Yet unless we were willing to adopt such a rule—which we are not—uncertainty about the outcome of a case should not preclude an award of interest. *198 In sum, the existence of a legitimate difference of opinion on the issue of liability is merely a characteristic of most ordinary lawsuits. It is not an extraordinary circumstance that can justify denying prejudgment interest. See Alkmeon Naviera, 633 F. 2d, at 798. The second purportedly "peculiar" feature of this case is the magnitude of the plaintiff's fault. Leaving aside the empirical question whether such a division of fault is in fact an aberration, it is true in this case that the owner of the E. M. Ford was primarily responsible for the vessel's loss. As a result, it might appear somewhat inequitable to award a large sum in prejudgment interest against a relatively innocent party. But any unfairness is illusory, because the relative fault of the parties has already been taken into consideration in calculating the amount of the loss for which the City is responsible. In United States v. Reliable Transfer Co., 421 U.S. 397 (1975), we "replaced the divided damages rule, which required an equal division of property damage whatever the relative degree of fault may have been, with a rule requiring that damages be assessed on the basis of proportionate fault when such an allocation can reasonably be made." McDermott, Inc. v. AmClyde, 511 U.S. 202, 207 (1994). Thus, in this case, before prejudgment interest even entered the picture, the total amount of respondents' recovery had already been reduced by two-thirds because of National Gypsum's own negligence. The City's responsibility for the remaining one-third is no different than if it had performed the same negligent acts and the owner, instead of also being negligent, had engaged in heroic maneuvers that avoided two-thirds of the damages. The City is merely required to compensate the owner for the loss for which the City is responsible.[11] *199 In light of Reliable Transfer, we are unmoved by the City's contention that an award of prejudgment interest is inequitable in a mutual fault situation. Indeed, the converse is true: a denial of prejudgment interest would be unfair. As Justice Kennedy noted while he was sitting on the Ninth Circuit, "under any rule allowing apportionment of liability, denying prejudgment interest on the basis of mutual fault would seem to penalize a party twice for the same mistake." Alkmeon Naviera, 633 F. 2d, at 798, n. 12. Such a double penalty is commended neither by logic nor by fairness; the rule giving rise to it is a relic of history that has ceased to serve any purpose in the wake of Reliable Transfer. Accordingly, we hold that neither a good-faith dispute over liability nor the existence of mutual fault justifies the denial of prejudgment interest in an admiralty collision case. Questions related to the calculation of the prejudgment interest award, including the rate to be applied, have not been raised in this Court and remain open for consideration, in the first instance, by the District Court. The judgment of the Court of Appeals is Affirmed. Justice Breyer took no part in the consideration or decision of this case.

This is an admiralty case in which the plaintiff's loss was primarily attributable to its own negligence. The question presented is whether that fact, together with the existence of a genuine dispute over liability, justified the District Court's departure from the general rule that prejudgment interest should be awarded in maritime collision cases. I Respondents are the owner and the insurers of the E. M. Ford, a ship that sank in Milwaukee's outer harbor on Christmas Eve 1979. At the time of this disaster, the Ford was berthed in a slip owned by the city of Milwaukee (City). In the course of a severe storm, she broke loose from her moorings, battered against the head wall of the slip, took on water, and sank. She was subsequently raised and repaired. In the Ford `s owner, the Cement Division of National Gypsum Co. (National Gypsum), brought suit against the City, invoking the District Court's admiralty and maritime *191 jurisdiction.[1] The complaint alleged that the City had breached its duty as a wharfinger by assigning the vessel to a berthing slip known to be unsafe in heavy winds and by failing to give adequate warning of hidden dangers in the slip. The plaintiff sought damages of $4.5 million, later increased to $6.5 million. The City denied fault and filed a $250,000 counterclaim for damage to its dock. The City alleged that National Gypsum was negligent in leaving the ship virtually unmanned in winter, with no means aboard for monitoring weather conditions or summoning help. In the District Court conducted a 3-week trial on the issue of liability. Finding that both National Gypsum and the City had been negligent, the court determined that the owner bore 96% of the responsibility for the disaster, while the City bore 4% of the fault. Given the disparity in the parties' damages, a final judgment giving effect to that allocation (and awarding the damages sought in the pleadings) would have essentially left each party to bear its own losses. Respondents took an interlocutory appeal from the District Court's ruling.[2] The Court of Appeals for the Seventh Circuit agreed with the District Court's conclusion that both parties were at fault, and that the owner's negligence was "more egregious" than the City's, but it rejected the allocation of 96% of the responsibility to the owner as clearly erroneous. Cement Div., National Gypsum cert. denied, After making its own analysis of the record, the Court of *192 Appeals apportioned liability two-thirds to National Gypsum and one-third to the Thereafter the parties entered into a partial settlement fixing respondents' damages, excluding prejudgment interest, at $1,677,541.86.[3] The parties agreed that any claim for interest would be submitted to the District Court for decision. A partial judgment for the stipulated amount was entered and satisfied. Respondents then sought an award of over $5.3 million in prejudgment [4] The District Court denied respondents' request. It noted that "an award of prejudgment interest calculated from the date of the loss is the rule rather than the exception in cases brought under a district court's admiralty jurisdiction," App. to Pet. for Cert. 21a, but held that special circumstances justified a departure from that rule in this case. The court explained: "In the instant case the record shows that from the outset there has been a genuine dispute over [respondents'] good faith claim that the City of Milwaukee was negligent for failing to warn the agents of [National *193 Gypsum] (who were planning to leave the FORD unmanned during the Christmas holidays) that a winter storm could create conditions in the outer harbor at Milwaukee which could damage the ship. The trial court and the court of appeals both found mutual fault for the damage which ensued to the ship and to the [City's] dock. The court of appeals ascribed two-thirds of the negligence to [National Gypsum]. Thus, in this situation the court concludes that [National Gypsum's] contributory negligence was of such magnitude that an award of prejudgment interest would be inequitable." at 22a.[5] The Court of Appeals reversed. It noted that prior to this Court's announcement of the comparative fault rule in United some courts had denied prejudgment interest in order to mitigate the harsh effects of the earlier rule commanding an equal division of damages whenever a collision resulted from the fault of both parties, even though one party was only slightly negligent. In the court's view, however, after the divided damages rule was "thrown overboard" and replaced with comparative fault, mutual fault could no longer provide a basis for denying prejudgment -585. The Court of Appeals also read our decision in West as disapproving of a "balancing of the equities" as a method of deciding whether to allow prejudgment The Court of Appeals' decision deepened an existing Circuit split regarding the criteria for denying prejudgment interest in maritime collision cases. Compare, e. g., Inland *194 Oil & Transport with Alkmeon Naviera, S. We granted certiorari, and now affirm. II Although Congress has enacted a statute governing the award of postjudgment interest in federal court litigation, see 28 U.S. C. there is no comparable legislation regarding prejudgment Far from indicating a legislative determination that prejudgment interest should not be awarded, however, the absence of a statute merely indicates that the question is governed by traditional judgemade principles. Monessen Southwestern R. ; Those principles are well developed in admiralty, where "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies." Reliable Throughout our history, admiralty decrees have included provisions for prejudgment In Del a prize case decided in 1796, we affirmed a decree awarding the libellant interest from "the day of capture." In The Amiable Nancy, we considered a similar decree. In augmenting the damages awarded by the lower court, we directed that the additional funds should bear prejudgment interest, as had the damages already awarded by the lower court. The Amiable Nancy arose out of the "gross and wanton" seizure of a Haitian vessel near the island of Antigua by the Scourge, an American privateer. In his opinion for the Court, Justice Story explained that even though the "loss of the supposed profits" of the Amiable Nancy `s voyage was not recoverable, "the prime cost, or value of the property *195 lost, at the time of the loss, and in case of injury, the diminution in value, by reason of the injury, with interest upon such valuation, afforded the true measure for assessing damages." We applied the same rule in The Umbria, explaining that "in cases of total loss by collision damages are limited to the value of the vessel, with interest thereon, and the net freight pending at the time of the collision." (Emphasis added.)[6] The Courts of Appeals have consistently and correctly construed decisions such as these as establishing a general rule that prejudgment interest should be awarded in maritime collision cases, subject to a limited exception for "peculiar" or "exceptional" circumstances. See, e. g., Inland Oil & Transport Co., 696 F. 2d, at 327; Central Rivers Towing, ; Ohio River ; Alkmeon Naviera, 633 F. 2d, at 797; Parker Towing The essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss.[7] Full compensation has long been recognized as a *196 basic principle of admiralty law, where "[r]estitutio in integrum is the leading maxim applied by admiralty courts to ascertain damages resulting from a collision." Standard Oil Co. of N. By compensating "for the loss of use of money due as damages from the time the claim accrues until judgment is entered," West -311, n. 2, an award of prejudgment interest helps achieve the goal of restoring a party to the condition it enjoyed before the injury occurred, The President Madison, Despite admiralty's traditional hospitality to prejudgment interest, however, such an award has never been automatic. In The Scotland, we stated that the "allowance of interest on damages is not an absolute right. Whether it ought or ought not to be allowed depends upon the circumstances of each case, and rests very much in the discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury." See also The Maggie J. Smith, Although we have never attempted to exhaustively catalog the circumstances that will justify the denial of interest, and do not do so today,[8] the most obvious example is the plaintiff's responsibility for "undue delay in prosecuting the lawsuit." General Motors Other circumstances may appropriately be invoked as warranted by the facts of particular cases. In this case, the City asks us to characterize two features of the instant litigation as sufficiently unusual to justify a departure from the general rule that prejudgment interest should be awarded to make the injured party whole. First, the City stresses the fact that there was a good-faith dispute *197 over its liability for respondents' loss. In our view, however, this fact carries little weight. If interest were awarded as a penalty for bad-faith conduct of the litigation, the City's argument would be well taken. But prejudgment interest is not awarded as a penalty; it is merely an element of just compensation. The City's "good-faith" argument has some resonance with the venerable common-law rule that prejudgment interest is not awarded on unliquidated claims (those where the precise amount of damages at issue cannot be computed). If a party contests liability in good faith, it will usually be the case that the party's ultimate exposure is uncertain. But the liquidated/unliquidated distinction has faced trenchant criticism for a number of years.[9] Moreover, that distinction "has never become so firmly entrenched in admiralty as it has been at law." Moore-McCormack Lines,[10] Any fixed rule allowing prejudgment interest only on liquidated claims would be difficult, if not impossible, to reconcile with admiralty's traditional presumption. Yet unless we were willing to adopt such a rule—which we are not—uncertainty about the outcome of a case should not preclude an award of *198 In sum, the existence of a legitimate difference of opinion on the issue of liability is merely a characteristic of most ordinary lawsuits. It is not an extraordinary circumstance that can justify denying prejudgment See Alkmeon Naviera, 633 F. 2d, at 798. The second purportedly "peculiar" feature of this case is the magnitude of the plaintiff's fault. Leaving aside the empirical question whether such a division of fault is in fact an aberration, it is true in this case that the owner of the E. M. Ford was primarily responsible for the vessel's loss. As a result, it might appear somewhat inequitable to award a large sum in prejudgment interest against a relatively innocent party. But any unfairness is illusory, because the relative fault of the parties has already been taken into consideration in calculating the amount of the loss for which the City is responsible. In United we "replaced the divided damages rule, which required an equal division of property damage whatever the relative degree of fault may have been, with a rule requiring that damages be assessed on the basis of proportionate fault when such an allocation can reasonably be made." McDermott, Thus, in this case, before prejudgment interest even entered the picture, the total amount of respondents' recovery had already been reduced by two-thirds because of National Gypsum's own negligence. The City's responsibility for the remaining one-third is no different than if it had performed the same negligent acts and the owner, instead of also being negligent, had engaged in heroic maneuvers that avoided two-thirds of the damages. The City is merely required to compensate the owner for the loss for which the City is responsible.[11] *199 In light of Reliable we are unmoved by the City's contention that an award of prejudgment interest is inequitable in a mutual fault situation. Indeed, the converse is true: a denial of prejudgment interest would be unfair. As Justice Kennedy noted while he was sitting on the Ninth Circuit, "under any rule allowing apportionment of liability, denying prejudgment interest on the basis of mutual fault would seem to penalize a party twice for the same mistake." Alkmeon Naviera, 633 F. 2d, at 798, n. 12. Such a double penalty is commended neither by logic nor by fairness; the rule giving rise to it is a relic of history that has ceased to serve any purpose in the wake of Reliable Accordingly, we hold that neither a good-faith dispute over liability nor the existence of mutual fault justifies the denial of prejudgment interest in an admiralty collision case. Questions related to the calculation of the prejudgment interest award, including the rate to be applied, have not been raised in this Court and remain open for consideration, in the first instance, by the District Court. The judgment of the Court of Appeals is Affirmed. Justice Breyer took no part in the consideration or decision of this case.

Justice Alito

majority

Monsanto Co. v. Geertson Seed Farms

https://www.courtlistener.com/opinion/149005/monsanto-co-v-geertson-seed-farms/

https://www.courtlistener.com/api/rest/v3/clusters/149005/

2009-080

This case arises out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa. The District Court held that APHIS violated the National Environ­ mental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S. C. §4321 et seq., by issuing its deregulation deci­ sion without first completing a detailed assessment of the environmental consequences of its proposed course of action. To remedy that violation, the District Court vacated the agency’s decision completely deregulating the alfalfa variety in question; ordered APHIS not to act on the deregulation petition in whole or in part until it had completed a detailed environmental review; and enjoined almost all future planting of the genetically engineered alfalfa pending the completion of that review. The Court of Appeals affirmed the District Court’s entry of permanent injunctive relief. The main issue now in dispute concerns the breadth of that relief. For the reasons set forth below, we reverse and remand for further proceedings. 2 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court I A The Plant Protection Act (PPA), 114 Stat. 438, 7 U.S. C. §7701 et seq., provides that the Secretary of the Depart­ ment of Agriculture (USDA) may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.” §7711(a). The Secretary has delegated that authority to APHIS, a division of the USDA. 7 CFR §§2.22(a), 2.80(a)(36) (2010). Acting pursuant to that delegation, APHIS has promulgated regulations governing “the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests.” See §340.0(a)(2) and n. 1. Under those regulations, certain genetically engi­ neered plants are presumed to be “plant pests”—and thus “regulated articles” under the PPA—until APHIS deter­ mines otherwise. See ibid.; §§340.1, 340.2, 340.6; see also App. 183. However, any person may petition APHIS for a determination that a regulated article does not present a plant pest risk and therefore should not be subject to the applicable regulations. 7 U.S. C. §7711(c)(2); 7 CFR §340.6. APHIS may grant such a petition in whole or in part. §340.6(d)(3). In deciding whether to grant nonregulated status to a genetically engineered plant variety, APHIS must comply with NEPA, which requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (EIS) for “every recommendation or report on proposals for legislation and other major Federal actio[n] significantly affecting the quality of the human environ­ ment.” 42 U.S. C. §4332(2)(C). The statutory text “speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.” Kleppe v. Sierra Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court Club, 427 U.S. 390, 410, n. 20 (1976). An agency need not complete an EIS for a particular proposal if it finds, on the basis of a shorter “environ­ mental assessment” (EA), that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2009). Even if a particular agency proposal requires an EIS, applicable regulations allow the agency to take at least some action in furtherance of that proposal while the EIS is being prepared. See §1506.1(a) (“no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives”); §1506.1(c) (“While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not under­ take in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action” satisfies certain requirements). B This case involves Roundup Ready Alfalfa (RRA), a kind of alfalfa crop that has been genetically engineered to be tolerant of glyphosate, the active ingredient of the herbi­ cide Roundup. Petitioner Monsanto Company (Monsanto) owns the intellectual property rights to RRA. Monsanto licenses those rights to co-petitioner Forage Genetics International (FGI), which is the exclusive developer of RRA seed. APHIS initially classified RRA as a regulated article, but in 2004 petitioners sought nonregulated status for two strains of RRA. In response, APHIS prepared a draft EA assessing the likely environmental impact of the requested deregulation. It then published a notice in the Federal Register advising the public of the deregulation petition and soliciting public comments on its draft EA. After 4 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court considering the hundreds of public comments that it re­ ceived, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally and with­ out preparing an EIS. Prior to this decision, APHIS had authorized almost 300 field trials of RRA conducted over a period of eight years. App. 348. Approximately eight months after APHIS granted RRA nonregulated status, respondents (two conventional alfalfa seed farms and environmental groups concerned with food safety) filed this action against the Secretary of Agricul­ ture and certain other officials in Federal District Court, challenging APHIS’s decision to completely deregulate RRA. Their complaint alleged violations of NEPA, the Endangered Species Act of 1973 (ESA), 87 Stat. 884, 16 U.S. C. §1531 et seq., and the PPA. Respondents did not seek preliminary injunctive relief pending resolution of those claims. Hence, RRA enjoyed nonregulated status for approximately two years. During that period, more than 3,000 farmers in 48 States planted an estimated 220,000 acres of RRA. App. 350. In resolving respondents’ NEPA claim, the District Court accepted APHIS’s determination that RRA does not have any harmful health effects on humans or livestock. App. to Pet. for Cert. 43a; accord, id., at 45a. Neverthe­ less, the District Court held that APHIS violated NEPA by deregulating RRA without first preparing an EIS. In particular, the court found that APHIS’s EA failed to answer substantial questions concerning two broad conse­ quences of its proposed action: first, the extent to which complete deregulation would lead to the transmission of the gene conferring glyphosate tolerance from RRA to organic and conventional alfalfa; and, second, the extent to which the introduction of RRA would contribute to the development of Roundup-resistant weeds. Id., at 52a. In light of its determination that the deregulation decision ran afoul of NEPA, the District Court dismissed without Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court prejudice respondents’ claims under the ESA and PPA. After these rulings, the District Court granted petition­ ers permission to intervene in the remedial phase of the lawsuit. The court then asked the parties to submit pro­ posed judgments embodying their preferred means of remedying the NEPA violation. APHIS’s proposed judg­ ment would have ordered the agency to prepare an EIS, vacated the agency’s deregulation decision, and replaced that decision with the terms of the judgment itself. Id., at 184a (proposed judgment providing that “[the federal] defendants’ [June 14,] 2005 Determination of Nonregu­ lated Status for Alfalfa Genetically Engineered for Toler­ ance to the Herbicide Glyphosate is hereby vacated and replaced by the terms of this judgment” (emphasis added)). The terms of the proposed judgment, in turn, would have permitted the continued planting of RRA pending comple­ tion of the EIS, subject to six restrictions. Those restric­ tions included, among other things, mandatory isolation distances between RRA and non-genetically-engineered alfalfa fields in order to mitigate the risk of gene flow; mandatory harvesting conditions; a requirement that planting and harvesting equipment that had been in contact with RRA be cleaned prior to any use with conven­ tional or organic alfalfa; identification and handling re­ quirements for RRA seed; and a requirement that all RRA seed producers and hay growers be under contract with either Monsanto or FGI and that their contracts require compliance with the other limitations set out in the pro­ posed judgment. The District Court rejected APHIS’s proposed judgment. In its preliminary injunction, the District Court prohibited almost all future planting of RRA pending APHIS’s com­ pletion of the required EIS. But in order to minimize the harm to farmers who had relied on APHIS’s deregulation decision, the court expressly allowed those who had al­ ready purchased RRA to plant their seeds until March 30, 6 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court 2007. Id., at 58a. In its subsequently entered permanent injunction and judgment, the court (1) vacated APHIS’s deregulation decision; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto’s deregula­ tion petition; (3) enjoined the planting of any RRA in the United States after March 30, 2007, pending APHIS’s completion of the required EIS; and (4) imposed certain conditions (suggested by APHIS) on the handling and identification of already-planted RRA. Id., at 79a, 109a. The District Court denied petitioners’ request for an evi­ dentiary hearing. The Government, Monsanto, and FGI appealed, chal­ lenging the scope of the relief granted but not disputing the existence of a NEPA violation. See Geertson Seed Farms v. Johanns, 570 F.3d 1130, 1136 (2009). A divided panel of the Court of Appeals for the Ninth Circuit af­ firmed. Based on its review of the record, the panel first concluded that the District Court had “recognized that an injunction does not ‘automatically issue’ when a NEPA violation is found” and had instead based its issuance of injunctive relief on the four-factor test traditionally used for that purpose. Id., at 1137. The panel held that the District Court had not committed clear error in making any of the subsidiary factual findings on which its assess­ ment of the four relevant factors was based. And the panel rejected the claim that the District Court had not given sufficient deference to APHIS’s expertise concerning the likely effects of allowing continued planting of RRA on a limited basis. In the panel’s view, APHIS’s proposed interim measures would have perpetuated a system that had been found by the District Court to have caused envi­ ronmental harm in the past. Id., at 1139. Hence, the panel concluded that the District Court had not abused its discretion “in choosing to reject APHIS’s proposed mitiga­ tion measures in favor of a broader injunction to prevent more irreparable harm from occurring.” Ibid. Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court The panel majority also rejected petitioners’ alternative argument that the District Court had erred in declining to hold an evidentiary hearing before entering its permanent injunction. Writing in dissent, Judge N. Randy Smith disagreed with that conclusion. In his view, the District Court was required to conduct an evidentiary hearing before issuing a permanent injunction unless the facts were undisputed or the adverse party expressly waived its right to such a hearing. Neither of those two exceptions, he found, applied here. We granted certiorari. 558 U. S. __ (2010). II A At the threshold, respondents contend that petitioners lack standing to seek our review of the lower court rulings at issue here. We disagree. Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 557 U. S. ___, ___ (2009) (slip op., at 8). Petitioners here sat­ isfy all three criteria. Petitioners are injured by their inability to sell or license RRA to prospective customers until such time as APHIS completes the required EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court. Respondents do not dispute that petitioners would have standing to contest the District Court’s permanent injunc­ tion order if they had pursued a different litigation strat­ egy. Instead, respondents argue that the injury of which petitioners complain is independently caused by a part of the District Court’s order that petitioners failed to chal­ lenge, namely, the vacatur of APHIS’s deregulation deci­ sion. The practical consequence of the vacatur, respon­ 8 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court dents contend, was to restore RRA to the status of a regu­ lated article; and, subject to certain exceptions not appli­ cable here, federal regulations ban the growth and sale of regulated articles. Because petitioners did not specifically challenge the District Court’s vacatur, respondents reason, they lack standing to challenge a part of the District Court’s order (i.e., the injunction) that does not cause petitioners any injury not also caused by the vacatur. See Brief for Respondents 19–20. Respondents’ argument fails for two independent rea­ sons. First, although petitioners did not challenge the vacatur directly, they adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction. Throughout the remedial phase of this litigation, one of the main disputes between the parties has been whether the District Court was required to adopt APHIS’s proposed judgment. See, e.g., Intervenor-Appellants’ Opening Brief in No. 07–16458 etc. (CA9), p. 59 (urging the Court of Appeals to “vacate the district court’s judgment and remand this case to the district court with instructions to enter APHIS’s proposed relief”); Opening Brief of Federal Defendants-Appellants in No. 16458 etc. (CA9), pp. 21, 46 (“The blanket injunc­ tion should be narrowed in accordance with APHIS’s proposal”); see also Tr. of Oral Arg. 6, 25–27, 53–54. That judgment would have replaced the vacated deregulation decision with an order expressly allowing continued plant­ ing of RRA subject to certain limited conditions. App. to Pet. for Cert. 184a (proposed judgment providing that “[the federal] defendants’ 14 June 2005 Determination of Nonregulated Status for Alfalfa Genetically Engineered for Tolerance to the Herbicide Glyphosate is hereby va­ cated and replaced by the terms of this judgment” (empha­ sis added)). Accordingly, if the District Court had adopted the agency’s suggested remedy, there would still be au­ thority for the continued planting of RRA, because there Cite as: 561 U. S. ____ (2010) 9 Opinion of the Court would, in effect, be a new deregulation decision.1 Second, petitioners in any case have standing to chal­ lenge the part of the District Court’s order enjoining par­ tial deregulation. Respondents focus their standing ar­ gument on the part of the judgment enjoining the planting of RRA, but the judgment also states that “[b]efore grant­ ing Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” Id., at 108a (emphasis added); see also id., at 79a (“The Court will enter a final judgment . . . ordering the government to prepare an EIS before it makes a deci­ sion on Monsanto’s deregulation petition”). As respon­ dents concede, that part of the judgment goes beyond the vacatur of APHIS’s deregulation decision. See Tr. of Oral Arg. 37, 46. At oral argument, respondents contended that the re­ triction on APHIS’s ability to effect a partial deregulation of RRA does not cause petitioners “an actual or an immi­ nent harm.” Id., at 39–40. In order for a partial deregula­ tion to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.” Id., at 39. Because petitioners cannot prove that those two events would happen, respon­ dents contended, the asserted harm caused by the District Court’s partial deregulation ban is too speculative to satisfy the actual or imminent injury requirement. We reject this argument. If the injunction were lifted, we do not see why the District Court would have to re­ mand the matter to the agency in order for APHIS to effect a partial deregulation. And even if a remand were —————— 1 We need not decide whether the District Court had the authority to replace the vacated agency order with an injunction of its own making. The question whether petitioners are entitled to the relief that they seek goes to the merits, not to standing. 10 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court required, we perceive no basis on which the District Court could decline to remand the matter to the agency so that it could determine whether to pursue a partial deregulation during the pendency of the EIS process. Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing. It is undisputed that peti­ tioners have submitted a deregulation petition and that a partial deregulation of the kind embodied in the agency’s proposed judgment would afford petitioners much of the relief that they seek; it is also undisputed that, absent the District Court’s order, APHIS could attempt to effect such a partial deregulation pending its completion of the EIS. See id., at 7–8, 25–27, 38. For purposes of resolving the particular standing question before us, we need not decide whether or to what extent a party challenging an injunc­ tion that bars an agency from granting certain relief must show that the agency would be likely to afford such relief if it were free to do so. In this case, as is clear from APHIS’s proposed judgment and from its briefing throughout the remedial phase of this litigation, the agency takes the view that a partial deregulation reflect­ ing its proposed limitations is in the public interest. Thus, there is more than a strong likelihood that APHIS would partially deregulate RRA were it not for the District Court’s injunction. The District Court’s elimination of that likelihood is plainly sufficient to establish a constitu­ tionally cognizable injury. Moreover, as respondents essentially conceded at oral argument, that injury would be redressed by a favorable decision here, since “vacating the current injunction . . . will allow [petitioners] to go back to the agency, [to] seek a partial deregulation,” even if the District Court’s vacatur of APHIS’s deregulation decision is left intact. Id., at 38. We therefore hold that Cite as: 561 U. S. ____ (2010) 11 Opinion of the Court petitioners have standing to seek this Court’s review.2 B We next consider petitioners’ contention that respon­ dents lack standing to seek injunctive relief. See Daim lerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff must demonstrate standing separately for each form of relief sought” (internal quotation marks omitted)). Petitioners argue that respondents have failed to show that any of the named respondents is likely to suffer a constitutionally cognizable injury absent injunctive relief. See Brief for Petitioners 40. We disagree. Respondents include conventional alfalfa farmers. Emphasizing “the undisputed concentration of alfalfa seed farms,” the District Court found that those farmers had “established a ‘reasonable probability’ that their organic and conventional alfalfa crops will be infected with the engineered gene” if RRA is completely deregulated. App. to Pet. for Cert. 50a.3 A substantial risk of gene flow —————— 2 We do not rest “the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense.” See post, at 7 (STEVENS, J., dissenting). Even if the District Court’s order prohibiting a partial deregulation applies only to “the particular partial deregulation order proposed to the court by APHIS,” see post, at 8, petitioners would still have standing to chal­ lenge that aspect of the order. 3At least one of the respondents in this case specifically alleges that he owns an alfalfa farm in a prominent seed-growing region and faces a significant risk of contamination from RRA. See Record, Doc. 62, pp. 1– 2; id., ¶10, at 3–4 (Declaration of Phillip Geertson in Support of Plan­ tiffs’ Motion for Summary Judgment) (“Since alfalfa is pollinated by honey, bumble and leafcutter bees, the genetic contamination of the Roundup Ready seed will rapidly spread through the seed growing regions. Bees have a range of at least two to ten miles, and the alfalfa seed farms are much more concentrated”). Other declarations in the record provide further support for the District Court’s conclusion that the deregulation of RRA poses a significant risk of contamination to respondents’ crops. See, e.g., id., Doc. 53, ¶9, at 2 (Declaration of Jim Munsch) (alleging risk of “significant contamination . . . due to the 12 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court injures respondents in several ways. For example, re­ spondents represent that, in order to continue marketing their product to consumers who wish to buy non­ genetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extent their crops have been contaminated. See, e.g., Record, Doc. 62, p. 5 (Declaration of Phillip Geertson in Support of Plantiffs’ Motion for Summary Judgment) (hereinafter Geertson Declaration) (“Due to the high potential for contamination, I will need to test my crops for the pres­ ence of genetically engineered alfalfa seed. This testing will be a new cost to my seed business and we will have to raise our seed prices to cover these costs, making our prices less competitive”); id., Doc. 57, p. 4 (Declaration of Patrick Trask in Support of Plantiff’s Motion for Summary Judgment) (“To ensure that my seeds are pure, I will need to test my crops and obtain certification that my seeds are free of genetically engineered alfalfa”); see also Record, Doc. 55, p. 2 (“There is zero tolerance for contaminated seed in the organic market”). Respondents also allege that the risk of gene flow will cause them to take certain meas­ ures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically­ engineered alfalfa. See, e.g., Geertson Declaration 3 (not­ ing the “increased cost of alfalfa breeding due to potential for genetic contamination”); id., at 6 (“Due to the threat of contamination, I have begun contracting with growers outside of the United States to ensure that I can supply genetically pure, conventional alfalfa seed. Finding new growers has already resulted in increased administrative —————— compact geographic area of the prime alfalfa seed producing areas and the fact that pollen is distributed by bees that have large natural range of activity”); App. ¶8, p. 401 (Declaration of Marc Asumendi) (“Roundup alfalfa seed fields are currently being planted in all the major alfalfa seed production areas with little regard to contamination to non-GMO seed production fields”). Cite as: 561 U. S. ____ (2010) 13 Opinion of the Court costs at my seed business”). Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. Those harms are readily attributable to APHIS’s deregulation decision, which, as the District Court found, gives rise to a significant risk of gene flow to non-genetically-engineered varieties of alfalfa. Finally, a judicial order prohibiting the growth and sale of all or some genetically engineered alfalfa would remedy respondents’ injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa crops. We therefore conclude that respon­ dents have constitutional standing to seek injunctive relief from the complete deregulation order at issue here. Petitioners appear to suggest that respondents fail to satisfy the “zone of interests” test we have previously articulated as a prudential standing requirement in cases challenging agency compliance with particular statutes. See Reply Brief for Petitioners 12 (arguing that protection against the risk of commercial harm “is not an interest that NEPA was enacted to address”); Bennett v. Spear, 520 U.S. 154, 162–163 (1997). That argument is unpersua­ sive because, as the District Court found, respondents’ injury has an environmental as well as an economic com­ ponent. See App. to Pet. for Cert. 49a. In its ruling on the merits of respondents’ NEPA claim, the District Court held that the risk that the RRA gene conferring gly­ phosate resistance will infect conventional and organic alfalfa is a significant environmental effect within the meaning of NEPA. Petitioners did not appeal that part of the court’s ruling, and we have no occasion to revisit it here. Respondents now seek injunctive relief in order to avert the risk of gene flow to their crops—the very same effect that the District Court determined to be a signifi­ cant environmental concern for purposes of NEPA. The 14 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court mere fact that respondents also seek to avoid certain economic harms that are tied to the risk of gene flow does not strip them of prudential standing. In short, respondents have standing to seek injunctive relief, and petitioners have standing to seek this Court’s review of the Ninth Circuit’s judgment affirming the entry of such relief. We therefore proceed to the merits of the case. III A The District Court sought to remedy APHIS’s NEPA violation in three ways: First, it vacated the agency’s decision completely deregulating RRA; second, it enjoined APHIS from deregulating RRA, in whole or in part, pend­ ing completion of the mandated EIS; and third, it entered a nationwide injunction prohibiting almost all future planting of RRA. Id., at 108a–110a. Because petitioners and the Government do not argue otherwise, we assume without deciding that the District Court acted lawfully in vacating the deregulation decision. See Tr. of Oral Arg. 7 (“[T]he district court could have vacated the order in its entirety and sent it back to the agency”); accord, id., at 15– 16. We therefore address only the latter two aspects of the District Court’s judgment. Before doing so, however, we provide a brief overview of the standard governing the entry of injunctive relief. B “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suf­ fered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to com­ pensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy Cite as: 561 U. S. ____ (2010) 15 Opinion of the Court in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L. L. C., 547 U.S. 388, 391 (2006). The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 21–23). Petitioners argue that the lower courts in this case proceeded on the erroneous assumption that an injunction is generally the appropriate remedy for a NEPA violation. In particular, petitioners note that the District Court cited pre-Winter Ninth Circuit precedent for the proposition that, in “ ‘the run of the mill NEPA case,’ ” an injunction delaying the contemplated government project is proper “ ‘until the NEPA violation is cured.’ ” App. to Pet. for Cert. 65a (quoting Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (CA9 2002)); see also App. to Pet. for Cert. 55a (quoting same language in preliminary injunction order). In addition, petitioners observe, the District Court and the Court of Appeals in this case both stated that, “in unusual circumstances, an injunction may be withheld, or, more likely, limited in scope” in NEPA cases. Id., at 66a (quoting National Parks & Conservation Assn. v. Babbitt, 241 F.3d 722, 737, n. 18 (CA9 2001) (internal quotation marks omitted)); 570 F.3d, at 1137. Insofar as the statements quoted above are intended to guide the determination whether to grant injunctive relief, they invert the proper mode of analysis. An injunction should issue only if the traditional four-factor test is satis­ fied. See Winter, supra, at ___ (slip op., at 21–24). In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA viola­ tion except in unusual circumstances. No such thumb on the scales is warranted. Nor, contrary to the reasoning of the Court of Appeals, could any such error be cured by a court’s perfunctory recognition that “an injunction does 16 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court not automatically issue” in NEPA cases. See 570 F.3d, at 1137 (internal quotation marks omitted). It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunc­ tion should issue under the traditional four-factor test set out above. Notwithstanding the lower courts’ apparent reliance on the incorrect standard set out in the pre-Winter Circuit precedents quoted above, respondents argue that the lower courts in fact applied the traditional four-factor test. In their view, the statements that injunctive relief is proper in the “run-of-the-mill” NEPA case, and that such injunctions are granted except in “unusual circumstances,” are descriptive rather than prescriptive. See Brief for Respondents 28, n. 14. We need not decide whether re­ spondents’ characterization of the lower court opinions in this case is sound. Even if it is, the injunctive relief granted here cannot stand. C We first consider whether the District Court erred in enjoining APHIS from partially deregulating RRA during the pendency of the EIS process.4 The relevant part of the District Court’s judgment states that, “[b]efore granting Monsanto’s deregulation petition, —————— 4 Petitionersfocus their challenge on the part of the District Court’s order prohibiting the planting of RRA. As we explain below, however, the broad injunction against planting cannot be valid if the injunction against partial deregulation is improper. See infra, at 23; see also App. to Pet. for Cert. 64a (District Court order recognizing that APHIS’s proposed remedy “seek[s], in effect, a partial deregulation that permits the continued expansion of the Roundup Ready alfalfa market subject to certain conditions” (emphasis added)). The validity of the injunction prohibiting partial deregulation is therefore properly before us. Like the District Court, we use the term “partial deregulation” to refer to any limited or conditional deregulation. See id., at 64a, 69a. Cite as: 561 U. S. ____ (2010) 17 Opinion of the Court even in part, the federal defendants shall prepare an environmental impact statement.” App. to Pet. for Cert. 108a (emphasis added); see also id., at 79a (“The Court will enter a final judgment . . . ordering the government to prepare an EIS before it makes a decision on Monsanto’s deregulation petition”). The plain text of the order prohib­ its any partial deregulation, not just the particular partial deregulation embodied in APHIS’s proposed judgment. We think it is quite clear that the District Court meant just what it said. The related injunction against planting states that “no [RRA] . . . may be planted” “[u]ntil the federal defendants prepare the EIS and decide the deregu­ lation petition.” Id., at 108a (emphasis added). That injunction, which appears in the very same judgment and directly follows the injunction against granting Mon­ santo’s petition “even in part,” does not carve out an ex­ ception for planting subsequently authorized by a valid partial deregulation decision. In our view, none of the traditional four factors govern­ ing the entry of permanent injunctive relief supports the District Court’s injunction prohibiting partial deregula­ tion. To see why that is so, it is helpful to understand how the injunction prohibiting a partial deregulation fits into the broader dispute between the parties. Respondents in this case brought suit under the APA to challenge a particular agency order: APHIS’s decision to completely deregulate RRA. The District Court held that the order in question was procedurally defective, and APHIS decided not to appeal that determination. At that point, it was for the agency to decide whether and to what extent it would pursue a partial deregulation. If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation. If and when the 18 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court agency were to issue a partial deregulation order, any party aggrieved by that order could bring a separate suit under the Administrative Procedure Act to challenge the particular deregulation attempted. See 5 U.S. C. §702. In this case, APHIS apparently sought to “streamline” the proceedings by asking the District Court to craft a remedy that, in effect, would have partially deregulated RRA until such time as the agency had finalized the EIS needed for a complete deregulation. See Tr. of Oral Arg. 16, 23–24; App. to Pet. for Cert. 69a. To justify that dispo­ sition, APHIS and petitioners submitted voluminous documentary submissions in which they purported to show that the risk of gene flow would be insignificant if the District Court allowed limited planting and harvesting subject to APHIS’s proposed conditions. Respondents, in turn, submitted considerable evidence of their own that seemed to cut the other way. This put the District Court in an unenviable position. “The parties’ experts disagreed over virtually every factual issue relating to possible environmental harm, including the likelihood of genetic contamination and why some contamination had already occurred.” 570 F.3d, at 1135. The District Court may well have acted within its dis­ cretion in refusing to craft a judicial remedy that would have authorized the continued planting and harvesting of RRA while the EIS is being prepared. It does not follow, however, that the District Court was within its rights in enjoining APHIS from allowing such planting and harvest­ ing pursuant to the authority vested in the agency by law. When the District Court entered its permanent injunction, APHIS had not yet exercised its authority to partially deregulate RRA. Until APHIS actually seeks to effect a partial deregulation, any judicial review of such a decision is premature.5 —————— 5 NEPA provides that an EIS must be “include[d] in every recommen­ Cite as: 561 U. S. ____ (2010) 19 Opinion of the Court Nor can the District Court’s injunction be justified as a prophylactic measure needed to guard against the possi­ bility that the agency would seek to effect on its own the particular partial deregulation scheme embodied in the terms of APHIS’s proposed judgment. Even if the District Court was not required to adopt that judgment, there was no need to stop the agency from effecting a partial deregu­ lation in accordance with the procedures established by law. Moreover, the terms of the District Court’s injunction do not just enjoin the particular partial deregulation embodied in APHIS’s proposed judgment. Instead, the District Court barred the agency from pursuing any de­ regulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isolation distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distri­ bution, how robust the enforcement mechanisms available —————— dation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S. C. §4332(2)(C) (emphasis added); see also Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) (“A court has no authority to depart from the statutory language and . . . determine a point during the germination process of a potential proposal at which an impact state­ ment should be prepared” (first emphasis added)). When a particular agency proposal exists and requires the preparation of an EIS, NEPA regulations allow the agency to take at least some action pertaining to that proposal during the pendency of the EIS process. See 40 CFR §§1506.1(a), (c) (2009). We do not express any view on the Govern­ ment’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS. See Brief for Federal Respondents 21–22 (citing §1506.1(a)); Tr. of Oral Arg. 20 (“what we were proposing for the interim, that is allowing continued planting subject to various protective measures, was funda­ mentally different from the action on which the EIS was being pre­ pared”). Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time. 20 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court at the time of the decision, and—consequently—no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular. The order enjoining any partial deregulation was also inconsistent with other aspects of the very same judgment. In fashioning its remedy for the NEPA violation, the District Court steered a “middle course” between more extreme options on either end. See id., at 1136. On the one hand, the District Court rejected APHIS’s proposal (supported by petitioners) to allow continued planting and harvesting of RRA subject to the agency’s proposed limita­ tions. On the other hand, the District Court did not bar continued planting of RRA as a regulated article under permit from APHIS, see App. to Pet. for Cert. 75a, and it expressly allowed farmers to harvest and sell RRA planted before March 30, 2007, id., at 76a–79a. If the District Court was right to conclude that any partial deregulation, no matter how limited, required the preparation of an EIS, it is hard to see why the limited planting and harvesting that the District Court allowed did not also require the preparation of an EIS. Conversely, if the District Court was right to conclude that the limited planting and har­ vesting it allowed did not require the preparation of an EIS, then an appropriately limited partial deregulation should likewise have been possible. Based on the analysis set forth above, it is clear that the order enjoining any deregulation whatsoever does not satisfy the traditional four-factor test for granting perma­ nent injunctive relief. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregula­ tion, for at least two independent reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate Cite as: 561 U. S. ____ (2010) 21 Opinion of the Court preliminary relief. See 5 U.S. C. §§702, 705. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respon­ dents any injury at all, much less irreparable injury; if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexis­ tent. For example, suppose that APHIS deregulates RRA only in a remote part of the country in which respondents neither grow nor intend to grow non-genetically­ engineered alfalfa, and in which no conventional alfalfa farms are currently located. Suppose further that APHIS issues an accompanying administrative order mandating isolation distances so great as to eliminate any apprecia­ ble risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area. See, e.g., Brief in Opposition 9, n. 6 (quoting study concluding “ ‘that in order for there to be zero tolerance of any gene flow between a [RRA] seed field and a conven­ tional seed field, those fields would have to have a five­ mile isolation distance between them’ ”); see also Tr. of Oral Arg. 15–16 (representation from the Solicitor General that APHIS may impose conditions on the deregulation of RRA via issuance of an administrative order). Finally, suppose that APHIS concludes in a new EA that its lim­ ited deregulation would not pose a significant risk of gene flow or harmful weed development, and that the agency adopts a plan to police vigorously compliance with its administrative order in the limited geographic area in question. It is hard to see how respondents could show that such a limited deregulation would cause them likely irreparable injury. (Respondents in this case do not repre­ sent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties.) In any case, the District Court’s order prohibiting any 22 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court partial deregulation improperly relieves respondents of their burden to make the requisite evidentiary showing.6 Of course, APHIS might ultimately choose not to par­ tially deregulate RRA during the pendency of the EIS, or else to pursue the kind of partial deregulation embodied in its proposed judgment rather than the very limited de­ regulation envisioned in the above hypothetical. Until such time as the agency decides whether and how to exer­ cise its regulatory authority, however, the courts have no cause to intervene. Indeed, the broad injunction entered here essentially pre-empts the very procedure by which the agency could determine, independently of the pending EIS process for assessing the effects of a complete deregu­ lation, that a limited deregulation would not pose any appreciable risk of environmental harm. See 40 CFR §§1501.4, 1508.9(a) (2009). In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity —————— 6 The District Court itself appears to have recognized that its broad injunction may not have been necessary to avert any injury to respon­ dents. See App. to Pet. for Cert. 191a (“It does complicate it to try to fine-tune a particular remedy. So the simpler the remedy, the more attractive it is from the Court’s point of view, because it appears to me enforcement is easier. Understanding it is easier, and it may be, while a blunt instrument, it may actually, for the short term, achieve its result, achieve its purpose, even maybe it overachieves it. . . . Maybe a lot of it is not necessary. I don’t know” (emphasis added)); see also ibid. (“I don’t say you have to be greater than 1.6 miles, you have to be away from the bees, you have be dah dah dah. That’s the farm business. I’m not even in it”); id., at 192a (“I am not going to get into the isolation distances”). Cite as: 561 U. S. ____ (2010) 23 Opinion of the Court to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s prepa­ ration of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment. D We now turn to petitioners’ claim that the District Court erred in entering a nationwide injunction against planting RRA. Petitioners argue that the District Court did not apply the right test for determining whether to enter permanent injunctive relief; that, even if the District Court identified the operative legal standard, it erred as a matter of law in applying that standard to the facts of this case; and that the District Court was required to grant petitioners an evidentiary hearing to resolve contested issues of fact germane to the remedial dispute between the parties. We agree that the District Court’s injunction against planting went too far, but we come to that conclu­ sion for two independent reasons. First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here— farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappro­ priate for the District Court to foreclose even the possibil­ ity of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms of such a deregulation decision. Second, respondents have represented to this Court that 24 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court the District Court’s injunction against planting does not have any meaningful practical effect independent of its vacatur. See Brief for Respondents 24; see also Tr. of Oral Arg. 37 (“[T]he mistake that was made [by the District Court] was in not appreciating . . . that the vacatur did have [the] effect” of independently prohibiting the growth and sale of almost all RRA). An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–312 (1982). If a less drastic remedy (such as partial or complete vacatur of APHIS’s deregula­ tion decision) was sufficient to redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was warranted. See ibid.; see also Winter, 555 U. S., at ___ (slip op., at 21–23). E In sum, the District Court abused its discretion in en­ joining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case. Cite as: 561 U. S. ____ (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–475 _________________ MONSANTO COMPANY, ET AL., PETITIONERS v. GEERTSON SEED FARMS ET AL.

This case arises out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa. The District Court held that APHIS violated the National Environ­ mental Policy Act of 1969 (NEPA), 42 U.S. C. et seq., by issuing its deregulation deci­ sion without first completing a detailed assessment of the environmental consequences of its proposed course of action. To remedy that violation, the District Court vacated the agency’s decision completely deregulating the alfalfa variety in question; ordered APHIS not to act on the deregulation petition in whole or in part until it had completed a detailed environmental review; and enjoined almost all future planting of the genetically engineered alfalfa pending the completion of that review. The Court of Appeals affirmed the District Court’s entry of permanent injunctive relief. The main issue now in dispute concerns the breadth of that relief. For the reasons set forth below, we reverse and remand for further proceedings. 2 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court I A The Plant Protection Act (PPA), 7 U.S. C. et seq., provides that the Secretary of the Depart­ ment of Agriculture (USDA) may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.” The Secretary has delegated that authority to APHIS, a division of the USDA. 7 CFR 2.80(a)(36) (2010). Acting pursuant to that delegation, APHIS has promulgated regulations governing “the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests.” See and n. 1. Under those regulations, certain genetically engi­ neered plants are presumed to be “plant pests”—and thus “regulated articles” under the PPA—until APHIS deter­ mines otherwise. See ; 340.2, 340.6; see also App. 183. However, any person may petition APHIS for a determination that a regulated article does not present a plant pest risk and therefore should not be subject to the applicable regulations. 7 U.S. C. 7 CFR APHIS may grant such a petition in whole or in part. In deciding whether to grant nonregulated status to a genetically engineered plant variety, APHIS must comply with NEPA, which requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (EIS) for “every recommendation or report on proposals for legislation and other major Federal actio[n] significantly affecting the quality of the human environ­ ment.” 42 U.S. C. The statutory text “speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.” Kleppe v. Sierra Cite as: 561 U. S. (2010) 3 Opinion of the Court Club, An agency need not complete an EIS for a particular proposal if it finds, on the basis of a shorter “environ­ mental assessment” (EA), that the proposed action will not have a significant impact on the environment. 40 CFR 1508.13 Even if a particular agency proposal requires an EIS, applicable regulations allow the agency to take at least some action in furtherance of that proposal while the EIS is being prepared. See (“no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives”); (“While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not under­ take in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action” satisfies certain requirements). B This case involves Roundup Ready Alfalfa (RRA), a kind of alfalfa crop that has been genetically engineered to be tolerant of glyphosate, the active ingredient of the herbi­ cide Roundup. Petitioner Monsanto Company (Monsanto) owns the intellectual property rights to RRA. Monsanto licenses those rights to co-petitioner Forage Genetics International (FGI), which is the exclusive developer of RRA seed. APHIS initially classified RRA as a regulated article, but in 2004 petitioners sought nonregulated status for two strains of RRA. In response, APHIS prepared a draft EA assessing the likely environmental impact of the requested deregulation. It then published a notice in the Federal Register advising the public of the deregulation petition and soliciting public comments on its draft EA. After 4 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court considering the hundreds of public comments that it re­ ceived, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally and with­ out preparing an EIS. Prior to this decision, APHIS had authorized almost 300 field trials of RRA conducted over a period of eight years. App. 348. Approximately eight months after APHIS granted RRA nonregulated status, respondents (two conventional alfalfa seed farms and environmental groups concerned with food safety) filed this action against the Secretary of Agricul­ ture and certain other officials in Federal District Court, challenging APHIS’s decision to completely deregulate RRA. Their complaint alleged violations of NEPA, the Endangered Species Act of 1973 (ESA), 16 U.S. C. et seq., and the PPA. Respondents did not seek preliminary injunctive relief pending resolution of those claims. Hence, RRA enjoyed nonregulated status for approximately two years. During that period, more than 3,000 farmers in 48 States planted an estimated 220,000 acres of RRA. App. 350. In resolving respondents’ NEPA claim, the District Court accepted APHIS’s determination that RRA does not have any harmful health effects on humans or livestock. App. to Pet. for Cert. 43a; accord, at 45a. Neverthe­ less, the District Court held that APHIS violated NEPA by deregulating RRA without first preparing an EIS. In particular, the court found that APHIS’s EA failed to answer substantial questions concerning two broad conse­ quences of its proposed action: first, the extent to which complete deregulation would lead to the transmission of the gene conferring glyphosate tolerance from RRA to organic and conventional alfalfa; and, second, the extent to which the introduction of RRA would contribute to the development of Roundup-resistant weeds. at 52a. In light of its determination that the deregulation decision ran afoul of NEPA, the District Court dismissed without Cite as: 561 U. S. (2010) 5 Opinion of the Court prejudice respondents’ claims under the ESA and PPA. After these rulings, the District Court granted petition­ ers permission to intervene in the remedial phase of the lawsuit. The court then asked the parties to submit pro­ posed judgments embodying their preferred means of remedying the NEPA violation. APHIS’s proposed judg­ ment would have ordered the agency to prepare an EIS, vacated the agency’s deregulation decision, and replaced that decision with the terms of the judgment itself. at 184a (proposed judgment providing that “[the federal] defendants’ [June 14,] 2005 Determination of Nonregu­ lated Status for Alfalfa Genetically Engineered for Toler­ ance to the Herbicide Glyphosate is hereby vacated and replaced by the terms of this judgment” (emphasis added)). The terms of the proposed judgment, in turn, would have permitted the continued planting of RRA pending comple­ tion of the EIS, subject to six restrictions. Those restric­ tions included, among other things, mandatory isolation distances between RRA and non-genetically-engineered alfalfa fields in order to mitigate the risk of gene flow; mandatory harvesting conditions; a requirement that planting and harvesting equipment that had been in contact with RRA be cleaned prior to any use with conven­ tional or organic alfalfa; identification and handling re­ quirements for RRA seed; and a requirement that all RRA seed producers and hay growers be under contract with either Monsanto or FGI and that their contracts require compliance with the other limitations set out in the pro­ posed judgment. The District Court rejected APHIS’s proposed judgment. In its preliminary injunction, the District Court prohibited almost all future planting of RRA pending APHIS’s com­ pletion of the required EIS. But in order to minimize the harm to farmers who had relied on APHIS’s deregulation decision, the court expressly allowed those who had al­ ready purchased RRA to plant their seeds until March 30, 6 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court 2007. at 58a. In its subsequently entered permanent injunction and judgment, the court (1) vacated APHIS’s deregulation decision; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto’s deregula­ tion petition; (3) enjoined the planting of any RRA in the United States after March 30, 2007, pending APHIS’s completion of the required EIS; and (4) imposed certain conditions (suggested by APHIS) on the handling and identification of already-planted RRA. at 79a, 109a. The District Court denied petitioners’ request for an evi­ dentiary hearing. The Government, Monsanto, and FGI appealed, chal­ lenging the scope of the relief granted but not disputing the existence of a NEPA violation. See Geertson Seed A divided panel of the Court of Appeals for the Ninth Circuit af­ firmed. Based on its review of the record, the panel first concluded that the District Court had “recognized that an injunction does not ‘automatically issue’ when a NEPA violation is found” and had instead based its issuance of injunctive relief on the four-factor test traditionally used for that purpose. The panel held that the District Court had not committed clear error in making any of the subsidiary factual findings on which its assess­ ment of the four relevant factors was based. And the panel rejected the claim that the District Court had not given sufficient deference to APHIS’s expertise concerning the likely effects of allowing continued planting of RRA on a limited basis. In the panel’s view, APHIS’s proposed interim measures would have perpetuated a system that had been found by the District Court to have caused envi­ ronmental harm in the past. Hence, the panel concluded that the District Court had not abused its discretion “in choosing to reject APHIS’s proposed mitiga­ tion measures in favor of a broader injunction to prevent more irreparable harm from occurring.” Cite as: 561 U. S. (2010) 7 Opinion of the Court The panel majority also rejected petitioners’ alternative argument that the District Court had erred in declining to hold an evidentiary hearing before entering its permanent injunction. Writing in dissent, Judge N. Randy Smith disagreed with that conclusion. In his view, the District Court was required to conduct an evidentiary hearing before issuing a permanent injunction unless the facts were undisputed or the adverse party expressly waived its right to such a hearing. Neither of those two exceptions, he found, applied here. We granted certiorari. 558 U. S. (2010). II A At the threshold, respondents contend that petitioners lack standing to seek our review of the lower court rulings at issue here. We disagree. Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 557 U. S. (slip op., at 8). Petitioners here sat­ isfy all three criteria. Petitioners are injured by their inability to sell or license RRA to prospective customers until such time as APHIS completes the required EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court. Respondents do not dispute that petitioners would have standing to contest the District Court’s permanent injunc­ tion order if they had pursued a different litigation strat­ egy. Instead, respondents argue that the injury of which petitioners complain is independently caused by a part of the District Court’s order that petitioners failed to chal­ lenge, namely, the vacatur of APHIS’s deregulation deci­ sion. The practical consequence of the vacatur, respon­ 8 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court dents contend, was to restore RRA to the status of a regu­ lated article; and, subject to certain exceptions not appli­ cable here, federal regulations ban the growth and sale of regulated articles. Because petitioners did not specifically challenge the District Court’s vacatur, respondents reason, they lack standing to challenge a part of the District Court’s order (i.e., the injunction) that does not cause petitioners any injury not also caused by the vacatur. See Brief for Respondents 19–20. Respondents’ argument fails for two independent rea­ sons. First, although petitioners did not challenge the vacatur directly, they adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction. Throughout the remedial phase of this litigation, one of the main disputes between the parties has been whether the District Court was required to adopt APHIS’s proposed judgment. See, e.g., Intervenor-Appellants’ Opening Brief in No. 07–16458 etc. (CA9), p. 59 (urging the Court of Appeals to “vacate the district court’s judgment and remand this case to the district court with instructions to enter APHIS’s proposed relief”); Opening Brief of Federal Defendants-Appellants in No. 16458 etc. (CA9), pp. 21, 46 (“The blanket injunc­ tion should be narrowed in accordance with APHIS’s proposal”); see also Tr. of Oral Arg. 6, 25–27, 53–54. That judgment would have replaced the vacated deregulation decision with an order expressly allowing continued plant­ ing of RRA subject to certain limited conditions. App. to Pet. for Cert. 184a (proposed judgment providing that “[the federal] defendants’ 14 June 2005 Determination of Nonregulated Status for Alfalfa Genetically Engineered for Tolerance to the Herbicide Glyphosate is hereby va­ cated and replaced by the terms of this judgment” (empha­ sis added)). Accordingly, if the District Court had adopted the agency’s suggested remedy, there would still be au­ thority for the continued planting of RRA, because there Cite as: 561 U. S. (2010) 9 Opinion of the Court would, in effect, be a new deregulation decision.1 Second, petitioners in any case have standing to chal­ lenge the part of the District Court’s order enjoining par­ tial deregulation. Respondents focus their standing ar­ gument on the part of the judgment enjoining the planting of RRA, but the judgment also states that “[b]efore grant­ ing Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” at 108a (emphasis added); see also at 79a (“The Court will enter a final judgment ordering the government to prepare an EIS before it makes a deci­ sion on Monsanto’s deregulation petition”). As respon­ dents concede, that part of the judgment goes beyond the vacatur of APHIS’s deregulation decision. See Tr. of Oral Arg. 37, 46. At oral argument, respondents contended that the re­ triction on APHIS’s ability to effect a partial deregulation of RRA does not cause petitioners “an actual or an immi­ nent harm.” –40. In order for a partial deregula­ tion to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.” Because petitioners cannot prove that those two events would happen, respon­ dents contended, the asserted harm caused by the District Court’s partial deregulation ban is too speculative to satisfy the actual or imminent injury requirement. We reject this argument. If the injunction were lifted, we do not see why the District Court would have to re­ mand the matter to the agency in order for APHIS to effect a partial deregulation. And even if a remand were —————— 1 We need not decide whether the District Court had the authority to replace the vacated agency order with an injunction of its own making. The question whether petitioners are entitled to the relief that they seek goes to the merits, not to standing. 10 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court required, we perceive no basis on which the District Court could decline to remand the matter to the agency so that it could determine whether to pursue a partial deregulation during the pendency of the EIS process. Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing. It is undisputed that peti­ tioners have submitted a deregulation petition and that a partial deregulation of the kind embodied in the agency’s proposed judgment would afford petitioners much of the relief that they seek; it is also undisputed that, absent the District Court’s order, APHIS could attempt to effect such a partial deregulation pending its completion of the EIS. See at 7–8, 25–27, 38. For purposes of resolving the particular standing question before us, we need not decide whether or to what extent a party challenging an injunc­ tion that bars an agency from granting certain relief must show that the agency would be likely to afford such relief if it were free to do so. In this case, as is clear from APHIS’s proposed judgment and from its briefing throughout the remedial phase of this litigation, the agency takes the view that a partial deregulation reflect­ ing its proposed limitations is in the public interest. Thus, there is more than a strong likelihood that APHIS would partially deregulate RRA were it not for the District Court’s injunction. The District Court’s elimination of that likelihood is plainly sufficient to establish a constitu­ tionally cognizable injury. Moreover, as respondents essentially conceded at oral argument, that injury would be redressed by a favorable decision here, since “vacating the current injunction will allow [petitioners] to go back to the agency, [to] seek a partial deregulation,” even if the District Court’s vacatur of APHIS’s deregulation decision is left intact. We therefore hold that Cite as: 561 U. S. (2010) 11 Opinion of the Court petitioners have standing to seek this Court’s review.2 B We next consider petitioners’ contention that respon­ dents lack standing to seek injunctive relief. See Daim lerChrysler (“[A] plaintiff must demonstrate standing separately for each form of relief sought” (internal quotation marks omitted)). Petitioners argue that respondents have failed to show that any of the named respondents is likely to suffer a constitutionally cognizable injury absent injunctive relief. See Brief for Petitioners 40. We disagree. Respondents include conventional alfalfa farmers. Emphasizing “the undisputed concentration of alfalfa seed farms,” the District Court found that those farmers had “established a ‘reasonable probability’ that their organic and conventional alfalfa crops will be infected with the engineered gene” if RRA is completely deregulated. App. to Pet. for Cert. 50a.3 A substantial risk of gene flow —————— 2 We do not rest “the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense.” See post, at 7 (STEVENS, J., dissenting). Even if the District Court’s order prohibiting a partial deregulation applies only to “the particular partial deregulation order proposed to the court by APHIS,” see post, at 8, petitioners would still have standing to chal­ lenge that aspect of the order. 3At least one of the respondents in this case specifically alleges that he owns an alfalfa farm in a prominent seed-growing region and faces a significant risk of contamination from RRA. See Record, Doc. 62, pp. 1– 2; at 3–4 (Declaration of Phillip Geertson in Support of Plan­ tiffs’ Motion for Summary Judgment) (“Since alfalfa is pollinated by honey, bumble and leafcutter bees, the genetic contamination of the Roundup Ready seed will rapidly spread through the seed growing regions. Bees have a range of at least two to ten miles, and the alfalfa seed farms are much more concentrated”). Other declarations in the record provide further support for the District Court’s conclusion that the deregulation of RRA poses a significant risk of contamination to respondents’ crops. See, e.g., Doc. 53, ¶9, at 2 (Declaration of Jim Munsch) (alleging risk of “significant contamination due to the 12 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court injures respondents in several ways. For example, re­ spondents represent that, in order to continue marketing their product to consumers who wish to buy non­ genetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extent their crops have been contaminated. See, e.g., Record, Doc. 62, p. 5 (Declaration of Phillip Geertson in Support of Plantiffs’ Motion for Summary Judgment) (hereinafter Geertson Declaration) (“Due to the high potential for contamination, I will need to test my crops for the pres­ ence of genetically engineered alfalfa seed. This testing will be a new cost to my seed business and we will have to raise our seed prices to cover these costs, making our prices less competitive”); Doc. 57, p. 4 (Declaration of Patrick Trask in Support of Plantiff’s Motion for Summary Judgment) (“To ensure that my seeds are pure, I will need to test my crops and obtain certification that my seeds are free of genetically engineered alfalfa”); see also Record, Doc. 55, p. 2 (“There is zero tolerance for contaminated seed in the organic market”). Respondents also allege that the risk of gene flow will cause them to take certain meas­ ures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically­ engineered alfalfa. See, e.g., Geertson Declaration 3 (not­ ing the “increased cost of alfalfa breeding due to potential for genetic contamination”); (“Due to the threat of contamination, I have begun contracting with growers outside of the United States to ensure that I can supply genetically pure, conventional alfalfa seed. Finding new growers has already resulted in increased administrative —————— compact geographic area of the prime alfalfa seed producing areas and the fact that pollen is distributed by bees that have large natural range of activity”); App. ¶8, p. 401 (Declaration of Marc Asumendi) (“Roundup alfalfa seed fields are currently being planted in all the major alfalfa seed production areas with little regard to contamination to non-GMO seed production fields”). Cite as: 561 U. S. (2010) 13 Opinion of the Court costs at my seed business”). Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. Those harms are readily attributable to APHIS’s deregulation decision, which, as the District Court found, gives rise to a significant risk of gene flow to non-genetically-engineered varieties of alfalfa. Finally, a judicial order prohibiting the growth and sale of all or some genetically engineered alfalfa would remedy respondents’ injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa crops. We therefore conclude that respon­ dents have constitutional standing to seek injunctive relief from the complete deregulation order at issue here. Petitioners appear to suggest that respondents fail to satisfy the “zone of interests” test we have previously articulated as a prudential standing requirement in cases challenging agency compliance with particular statutes. See Reply Brief for Petitioners 12 (arguing that protection against the risk of commercial harm “is not an interest that NEPA was enacted to address”); Bennett v. Spear, 520 U.S. 154, 162–163 (1997). That argument is unpersua­ sive because, as the District Court found, respondents’ injury has an environmental as well as an economic com­ ponent. See App. to Pet. for Cert. 49a. In its ruling on the merits of respondents’ NEPA claim, the District Court held that the risk that the RRA gene conferring gly­ phosate resistance will infect conventional and organic alfalfa is a significant environmental effect within the meaning of NEPA. Petitioners did not appeal that part of the court’s ruling, and we have no occasion to revisit it here. Respondents now seek injunctive relief in order to avert the risk of gene flow to their crops—the very same effect that the District Court determined to be a signifi­ cant environmental concern for purposes of NEPA. The 14 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court mere fact that respondents also seek to avoid certain economic harms that are tied to the risk of gene flow does not strip them of prudential standing. In short, respondents have standing to seek injunctive relief, and petitioners have standing to seek this Court’s review of the Ninth Circuit’s judgment affirming the entry of such relief. We therefore proceed to the merits of the case. III A The District Court sought to remedy APHIS’s NEPA violation in three ways: First, it vacated the agency’s decision completely deregulating RRA; second, it enjoined APHIS from deregulating RRA, in whole or in part, pend­ ing completion of the mandated EIS; and third, it entered a nationwide injunction prohibiting almost all future planting of RRA. at 108a–110a. Because petitioners and the Government do not argue otherwise, we assume without deciding that the District Court acted lawfully in vacating the deregulation decision. See Tr. of Oral Arg. 7 (“[T]he district court could have vacated the order in its entirety and sent it back to the agency”); accord, at 15– 16. We therefore address only the latter two aspects of the District Court’s judgment. Before doing so, however, we provide a brief overview of the standard governing the entry of injunctive relief. B “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suf­ fered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to com­ pensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy Cite as: 561 U. S. (2010) 15 Opinion of the Court in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. See v. Natural Resources Defense Council, Inc., 555 U. S. (2008) (slip op., at 21–23). Petitioners argue that the lower courts in this case proceeded on the erroneous assumption that an injunction is generally the appropriate remedy for a NEPA violation. In particular, petitioners note that the District Court cited pre- Ninth Circuit precedent for the proposition that, in “ ‘the run of the mill NEPA case,’ ” an injunction delaying the contemplated government project is proper “ ‘until the NEPA violation is cured.’ ” App. to Pet. for Cert. 65a (quoting Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (CA9 2002)); see also App. to Pet. for Cert. 55a (quoting same language in preliminary injunction order). In addition, petitioners observe, the District Court and the Court of Appeals in this case both stated that, “in unusual circumstances, an injunction may be withheld, or, more likely, limited in scope” in NEPA cases. 6a (internal quotation marks omitted)); 570 F.3d, Insofar as the statements quoted above are intended to guide the determination whether to grant injunctive relief, they invert the proper mode of analysis. An injunction should issue only if the traditional four-factor test is satis­ fied. See at (slip op., at 21–24). In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA viola­ tion except in unusual circumstances. No such thumb on the scales is warranted. Nor, contrary to the reasoning of the Court of Appeals, could any such error be cured by a court’s perfunctory recognition that “an injunction does 16 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court not automatically issue” in NEPA cases. See 570 F.3d, at 1137 (internal quotation marks omitted). It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunc­ tion should issue under the traditional four-factor test set out above. Notwithstanding the lower courts’ apparent reliance on the incorrect standard set out in the pre- Circuit precedents quoted above, respondents argue that the lower courts in fact applied the traditional four-factor test. In their view, the statements that injunctive relief is proper in the “run-of-the-mill” NEPA case, and that such injunctions are granted except in “unusual circumstances,” are descriptive rather than prescriptive. See Brief for Respondents 28, n. 14. We need not decide whether re­ spondents’ characterization of the lower court opinions in this case is sound. Even if it is, the injunctive relief granted here cannot stand. C We first consider whether the District Court erred in enjoining APHIS from partially deregulating RRA during the pendency of the EIS process.4 The relevant part of the District Court’s judgment states that, “[b]efore granting Monsanto’s deregulation petition, —————— 4 Petitionersfocus their challenge on the part of the District Court’s order prohibiting the planting of RRA. As we explain below, however, the broad injunction against planting cannot be valid if the injunction against partial deregulation is improper. See infra, at 23; see also App. to Pet. for Cert. 64a (District Court order recognizing that APHIS’s proposed remedy “seek[s], in effect, a partial deregulation that permits the continued expansion of the Roundup Ready alfalfa market subject to certain conditions” (emphasis added)). The validity of the injunction prohibiting partial deregulation is therefore properly before us. Like the District Court, we use the term “partial deregulation” to refer to any limited or conditional deregulation. See 4a, 69a. Cite as: 561 U. S. (2010) 17 Opinion of the Court even in part, the federal defendants shall prepare an environmental impact statement.” App. to Pet. for Cert. 108a (emphasis added); see also at 79a (“The Court will enter a final judgment ordering the government to prepare an EIS before it makes a decision on Monsanto’s deregulation petition”). The plain text of the order prohib­ its any partial deregulation, not just the particular partial deregulation embodied in APHIS’s proposed judgment. We think it is quite clear that the District Court meant just what it said. The related injunction against planting states that “no [RRA] may be planted” “[u]ntil the federal defendants prepare the EIS and decide the deregu­ lation petition.” at 108a (emphasis added). That injunction, which appears in the very same judgment and directly follows the injunction against granting Mon­ santo’s petition “even in part,” does not carve out an ex­ ception for planting subsequently authorized by a valid partial deregulation decision. In our view, none of the traditional four factors govern­ ing the entry of permanent injunctive relief supports the District Court’s injunction prohibiting partial deregula­ tion. To see why that is so, it is helpful to understand how the injunction prohibiting a partial deregulation fits into the broader dispute between the parties. Respondents in this case brought suit under the APA to challenge a particular agency order: APHIS’s decision to completely deregulate RRA. The District Court held that the order in question was procedurally defective, and APHIS decided not to appeal that determination. At that point, it was for the agency to decide whether and to what extent it would pursue a partial deregulation. If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation. If and when the 18 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court agency were to issue a partial deregulation order, any party aggrieved by that order could bring a separate suit under the Administrative Procedure Act to challenge the particular deregulation attempted. See 5 U.S. C. In this case, APHIS apparently sought to “streamline” the proceedings by asking the District Court to craft a remedy that, in effect, would have partially deregulated RRA until such time as the agency had finalized the EIS needed for a complete deregulation. See Tr. of Oral Arg. 16, 23–24; App. to Pet. for Cert. 69a. To justify that dispo­ sition, APHIS and petitioners submitted voluminous documentary submissions in which they purported to show that the risk of gene flow would be insignificant if the District Court allowed limited planting and harvesting subject to APHIS’s proposed conditions. Respondents, in turn, submitted considerable evidence of their own that seemed to cut the other way. This put the District Court in an unenviable position. “The parties’ experts disagreed over virtually every factual issue relating to possible environmental harm, including the likelihood of genetic contamination and why some contamination had already occurred.” The District Court may well have acted within its dis­ cretion in refusing to craft a judicial remedy that would have authorized the continued planting and harvesting of RRA while the EIS is being prepared. It does not follow, however, that the District Court was within its rights in enjoining APHIS from allowing such planting and harvest­ ing pursuant to the authority vested in the agency by law. When the District Court entered its permanent injunction, APHIS had not yet exercised its authority to partially deregulate RRA. Until APHIS actually seeks to effect a partial deregulation, any judicial review of such a decision is premature.5 —————— 5 NEPA provides that an EIS must be “include[d] in every recommen­ Cite as: 561 U. S. (2010) 19 Opinion of the Court Nor can the District Court’s injunction be justified as a prophylactic measure needed to guard against the possi­ bility that the agency would seek to effect on its own the particular partial deregulation scheme embodied in the terms of APHIS’s proposed judgment. Even if the District Court was not required to adopt that judgment, there was no need to stop the agency from effecting a partial deregu­ lation in accordance with the procedures established by law. Moreover, the terms of the District Court’s injunction do not just enjoin the particular partial deregulation embodied in APHIS’s proposed judgment. Instead, the District Court barred the agency from pursuing any de­ regulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isolation distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distri­ bution, how robust the enforcement mechanisms available —————— dation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S. C. (emphasis added); see also (“A court has no authority to depart from the statutory language and determine a point during the germination process of a potential proposal at which an impact state­ ment should be prepared” (first emphasis added)). When a particular agency proposal exists and requires the preparation of an EIS, NEPA regulations allow the agency to take at least some action pertaining to that proposal during the pendency of the EIS process. See 40 CFR §, (c) We do not express any view on the Govern­ ment’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS. See Brief for Federal Respondents 21–22 (citing ); Tr. of Oral Arg. 20 (“what we were proposing for the interim, that is allowing continued planting subject to various protective measures, was funda­ mentally different from the action on which the EIS was being pre­ pared”). Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time. 20 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court at the time of the decision, and—consequently—no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular. The order enjoining any partial deregulation was also inconsistent with other aspects of the very same judgment. In fashioning its remedy for the NEPA violation, the District Court steered a “middle course” between more extreme options on either end. See at On the one hand, the District Court rejected APHIS’s proposal (supported by petitioners) to allow continued planting and harvesting of RRA subject to the agency’s proposed limita­ tions. On the other hand, the District Court did not bar continued planting of RRA as a regulated article under permit from APHIS, see App. to Pet. for Cert. 75a, and it expressly allowed farmers to harvest and sell RRA planted before March 30, 2007, at 76a–79a. If the District Court was right to conclude that any partial deregulation, no matter how limited, required the preparation of an EIS, it is hard to see why the limited planting and harvesting that the District Court allowed did not also require the preparation of an EIS. Conversely, if the District Court was right to conclude that the limited planting and har­ vesting it allowed did not require the preparation of an EIS, then an appropriately limited partial deregulation should likewise have been possible. Based on the analysis set forth above, it is clear that the order enjoining any deregulation whatsoever does not satisfy the traditional four-factor test for granting perma­ nent injunctive relief. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregula­ tion, for at least two independent reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate Cite as: 561 U. S. (2010) 21 Opinion of the Court preliminary relief. See 5 U.S. C. 705. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respon­ dents any injury at all, much less irreparable injury; if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexis­ tent. For example, suppose that APHIS deregulates RRA only in a remote part of the country in which respondents neither grow nor intend to grow non-genetically­ engineered alfalfa, and in which no conventional alfalfa farms are currently located. Suppose further that APHIS issues an accompanying administrative order mandating isolation distances so great as to eliminate any apprecia­ ble risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area. See, e.g., Brief in Opposition 9, n. 6 (quoting study concluding “ ‘that in order for there to be zero tolerance of any gene flow between a [RRA] seed field and a conven­ tional seed field, those fields would have to have a five­ mile isolation distance between them’ ”); see also Tr. of Oral Arg. 15–16 (representation from the Solicitor General that APHIS may impose conditions on the deregulation of RRA via issuance of an administrative order). Finally, suppose that APHIS concludes in a new EA that its lim­ ited deregulation would not pose a significant risk of gene flow or harmful weed development, and that the agency adopts a plan to police vigorously compliance with its administrative order in the limited geographic area in question. It is hard to see how respondents could show that such a limited deregulation would cause them likely irreparable injury. (Respondents in this case do not repre­ sent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties.) In any case, the District Court’s order prohibiting any 22 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court partial deregulation improperly relieves respondents of their burden to make the requisite evidentiary showing.6 Of course, APHIS might ultimately choose not to par­ tially deregulate RRA during the pendency of the EIS, or else to pursue the kind of partial deregulation embodied in its proposed judgment rather than the very limited de­ regulation envisioned in the above hypothetical. Until such time as the agency decides whether and how to exer­ cise its regulatory authority, however, the courts have no cause to intervene. Indeed, the broad injunction entered here essentially pre-empts the very procedure by which the agency could determine, independently of the pending EIS process for assessing the effects of a complete deregu­ lation, that a limited deregulation would not pose any appreciable risk of environmental harm. See 40 CFR 1508.9(a) In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity —————— 6 The District Court itself appears to have recognized that its broad injunction may not have been necessary to avert any injury to respon­ dents. See App. to Pet. for Cert. 191a (“It does complicate it to try to fine-tune a particular remedy. So the simpler the remedy, the more attractive it is from the Court’s point of view, because it appears to me enforcement is easier. Understanding it is easier, and it may be, while a blunt instrument, it may actually, for the short term, achieve its result, achieve its purpose, even maybe it overachieves it. Maybe a lot of it is not necessary. I don’t know” (emphasis added)); see also (“I don’t say you have to be greater than 1.6 miles, you have to be away from the bees, you have be dah dah dah. That’s the farm business. I’m not even in it”); at 192a (“I am not going to get into the isolation distances”). Cite as: 561 U. S. (2010) 23 Opinion of the Court to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s prepa­ ration of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment. D We now turn to petitioners’ claim that the District Court erred in entering a nationwide injunction against planting RRA. Petitioners argue that the District Court did not apply the right test for determining whether to enter permanent injunctive relief; that, even if the District Court identified the operative legal standard, it erred as a matter of law in applying that standard to the facts of this case; and that the District Court was required to grant petitioners an evidentiary hearing to resolve contested issues of fact germane to the remedial dispute between the parties. We agree that the District Court’s injunction against planting went too far, but we come to that conclu­ sion for two independent reasons. First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here— farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappro­ priate for the District Court to foreclose even the possibil­ ity of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms of such a deregulation decision. Second, respondents have represented to this Court that 24 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court the District Court’s injunction against planting does not have any meaningful practical effect independent of its vacatur. See Brief for Respondents 24; see also Tr. of Oral Arg. 37 (“[T]he mistake that was made [by the District Court] was in not appreciating that the vacatur did have [the] effect” of independently prohibiting the growth and sale of almost all RRA). An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. See, e.g., If a less drastic remedy (such as partial or complete vacatur of APHIS’s deregula­ tion decision) was sufficient to redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was warranted. See ; see also 555 U. S., at (slip op., at 21–23). E In sum, the District Court abused its discretion in en­ joining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case. Cite as: 561 U. S. (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–475 MONSANTO COMPANY, ET AL., PETITIONERS v. GEERTSON SEED FARMS ET AL.

per_curiam

per_curiam

Medellin v. Dretke

https://www.courtlistener.com/opinion/142898/medellin-v-dretke/

https://www.courtlistener.com/api/rest/v3/clusters/142898/

2004-050

We granted certiorari in this case to consider two questions: first, whether a federal court is bound by the International Court of Justice's (ICJ) ruling that United States *662 courts must reconsider petitioner José Medellín's claim for relief under the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, 100-101, T. I. A. S. No. 6820, without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ's judgment. 543 U.S. 1032 (2004). After we granted certiorari, Medellín filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, relying in part upon a memorandum from President George W. Bush that was issued after we granted certiorari. This state-court proceeding may provide Medellín with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding. The merits briefing in this case also has revealed a number of hurdles Medellín must surmount before qualifying for federal habeas relief in this proceeding, based on the resolution of the questions he has presented here. For these reasons we dismiss the writ as improvidently granted. See Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121-122 (1994) (per curiam); The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183-184 (1959); Goins v. United States, 306 U.S. 622 (1939). Medellín, a Mexican national, confessed to participating in the gang rape and murder of two girls in 1993. He was convicted and sentenced to death, and the Texas Court of Criminal Appeals affirmed on direct appeal. Medellín then filed a state habeas corpus action, claiming for the first time that Texas failed to notify him of his right to consular access as required by the Vienna Convention. The state trial court rejected this claim, and the Texas Court of Criminal Appeals summarily affirmed. Medellín then filed this federal habeas corpus petition, again raising the Vienna Convention claim. The District Court denied the petition. Subsequently, while Medellín's application to the Court of Appeals for the Fifth Circuit for a certificate of appealability was pending, see 28 U.S. C. *663 § 2253(c), the ICJ issued its decision in Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), in which the Republic of Mexico had alleged violations of the Vienna Convention with respect to Medellín and other Mexican nationals facing the death penalty in the United States. The ICJ determined that the Vienna Convention guaranteed individually enforceable rights, that the United States had violated those rights, and that the United States must "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals" to determine whether the violations "caused actual prejudice," without allowing procedural default rules to bar such review. Id., ¶¶ 121-122, 153(a). The Court of Appeals denied Medellín's application for a certificate of appealability. It did so based on Medellín's procedural default, see Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam), and its prior holdings that the Vienna Convention did not create an individually enforceable right, see, e. g., United States v. Jimenez-Nava, 243 F.3d 192, 195 (CA5 2001). 371 F.3d 270 (CA5 2004). While acknowledging the existence of the ICJ's Avena judgment, the court gave no dispositive effect to that judgment. More than two months after we granted certiorari, and a month before oral argument in this case, President Bush issued a memorandum that stated the United States would discharge its international obligations under the Avena judgment by "having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a. Relying on this memorandum and the Avena judgment as separate bases for relief that were not available at the time of his first state habeas corpus action, Medellín filed a successive state application for a writ of habeas corpus *664 just four days before oral argument here. That state proceeding may provide Medellín with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellín now seeks in this proceeding. This new development, as well as the factors discussed below, leads us to dismiss the writ of certiorari as improvidently granted.[1] There are several threshold issues that could independently preclude federal habeas relief for Medellín, and thus render advisory or academic our consideration of the questions presented. These issues are not free from doubt. First, even accepting, arguendo, the ICJ's construction of the Vienna Convention's consular access provisions, a violation of those provisions may not be cognizable in a federal habeas proceeding. In Reed v. Farley, 512 U.S. 339 (1994), this Court recognized that a violation of federal statutory rights ranked among the "nonconstitutional lapses we have held not cognizable in a postconviction proceeding" unless they meet the "fundamental defect" test announced in our decision in Hill v. United States, 368 U.S. 424, 428 (1962). 512 U.S., at 349 (plurality opinion); see also id., at 355-356 (SCALIA, J., concurring in part and concurring in judgment). In order for Medellín to obtain federal habeas relief, Medellín must therefore establish that Reed does not bar his treaty claim. Second, with respect to any claim the state court "adjudicated on the merits," habeas relief in federal court is available only if such adjudication "was contrary to, or an unreasonable application of, clearly established Federal law, as *665 determined by the Supreme Court." 28 U.S. C. § 2254(d)(1); see Woodford v. Visciotti, 537 U.S. 19, 22-27 (2002) (per curiam). The state habeas court, which disposed of the case before the ICJ rendered its judgment in Avena, arguably "adjudicated on the merits" three claims. It found that the Vienna Convention did not create individual, judicially enforceable rights and that state procedural default rules barred Medellín's consular access claim. Finally, and perhaps most importantly, the state trial court found that Medellín "fail[ed] to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest for capital murder; [Medellín] was provided with effective legal representation upon [his] request; and [his] constitutional rights were safeguarded." App. to Pet. for Cert. 56a.[2] Medellín would have to overcome the deferential standard with regard to all of these findings before obtaining federal habeas relief on his Vienna Convention claim.[3] Third, a habeas corpus petitioner generally cannot enforce a "new rule" of law. Teague v. Lane, 489 U.S. 288 (1989). *666 Before relief could be granted, then, we would be obliged to decide whether or how the Avena judgment bears on our ordinary "new rule" jurisprudence. Fourth, Medellín requires a certificate of appealability in order to pursue the merits of his claim on appeal. 28 U.S. C. § 2253(c)(1). A certificate of appealability may be granted only where there is "a substantial showing of the denial of a constitutional right." § 2253(c)(2) (emphasis added). To obtain the necessary certificate of appealability to proceed in the Court of Appeals, Medellín must demonstrate that his allegation of a treaty violation could satisfy this standard. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). Fifth, Medellín can seek federal habeas relief only on claims that have been exhausted in state court. See 28 U.S. C. §§ 2254(b)(1)(A), (b)(3). To gain relief based on the President's memorandum or ICJ judgments, Medellín would have to show that he exhausted all available state-court remedies.[4] In light of the possibility that the Texas courts will provide Medellín with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellín's pending action, we think it would be unwise to reach and resolve the multiple hindrances *667 to dispositive answers to the questions here presented. Accordingly, we dismiss the writ as improvidently granted. It is so ordered.

We granted certiorari in this case to consider two questions: first, whether a federal court is bound by the International Court of Justice's (ICJ) ruling that United States *662 courts must reconsider petitioner José Medellín's claim for relief under the Vienna Convention on Consular Relations, Apr 24, 1963, [1970] 21 U S T 77, 100-101, T I A S No 6820, without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ's judgment After we granted certiorari, Medellín filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, relying in part upon a memorandum from President George W Bush that was issued after we granted certiorari This state-court proceeding may provide Medellín with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding The merits briefing in this case also has revealed a number of hurdles Medellín must surmount before qualifying for federal habeas relief in this proceeding, based on the resolution of the questions he has presented here For these reasons we dismiss the writ as improvidently granted See Ticor Title Ins ; The ; Medellín, a Mexican national, confessed to participating in the gang rape and murder of two girls in 1993 He was convicted and sentenced to death, and the Texas Court of Criminal Appeals affirmed on direct appeal Medellín then filed a state habeas corpus action, claiming for the first time that Texas failed to notify him of his right to consular access as required by the Vienna Convention The state trial court rejected this claim, and the Texas Court of Criminal Appeals summarily affirmed Medellín then filed this federal habeas corpus petition, again raising the Vienna Convention claim The District Court denied the petition Subsequently, while Medellín's application to the Court of Appeals for the Fifth Circuit for a certificate of appealability was pending, see 28 US C *663 2253(c), the ICJ issued its decision in Case Concerning Avena and other Mexican Nationals (Mex v U S), I C J No 128 (Judgment of Mar 31), in which the Republic of Mexico had alleged violations of the Vienna Convention with respect to Medellín and other Mexican nationals facing the death penalty in the United States The ICJ determined that the Vienna Convention guaranteed individually enforceable rights, that the United States had violated those rights, and that the United States must "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals" to determine whether the violations "caused actual prejudice," without allowing procedural default rules to bar such review ¶¶ 153 The Court of Appeals denied Medellín's application for a certificate of appealability It did so based on Medellín's procedural default, see and its prior holdings that the Vienna Convention did not create an individually enforceable right, see, e g, United While acknowledging the existence of the ICJ's Avena judgment, the court gave no dispositive effect to that judgment More than two months after we granted certiorari, and a month before oral argument in this case, President Bush issued a memorandum that stated the United States would discharge its international obligations under the Avena judgment by "having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision" George W Bush, Memorandum for the Attorney General (Feb 28, 2005), App 2 to Brief for United States as Amicus Curiae 9a Relying on this memorandum and the Avena judgment as separate bases for relief that were not available at the time of his first state habeas corpus action, Medellín filed a successive state application for a writ of habeas corpus *664 just four days before oral argument here That state proceeding may provide Medellín with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellín now seeks in this proceeding This new development, as well as the factors discussed below, leads us to dismiss the writ of certiorari as improvidently granted[1] There are several threshold issues that could independently preclude federal habeas relief for Medellín, and thus render advisory or academic our consideration of the questions presented These issues are not free from doubt First, even accepting, arguendo, the ICJ's construction of the Vienna Convention's consular access provisions, a violation of those provisions may not be cognizable in a federal habeas proceeding In this Court recognized that a violation of federal statutory rights ranked among the "nonconstitutional lapses we have held not cognizable in a postconviction proceeding" unless they meet the "fundamental defect" test announced in our decision in ; see also id, (SCALIA, J, concurring in part and concurring in judgment) In order for Medellín to obtain federal habeas relief, Medellín must therefore establish that Reed does not bar his treaty claim Second, with respect to any claim the state court "adjudicated on the merits," habeas relief in federal court is available only if such adjudication "was contrary to, or an unreasonable application of, clearly established Federal law, as *665 determined by the Supreme Court" 28 US C 2254(d)(1); see Woodford v Visciotti, 537 US 19, The state habeas court, which disposed of the case before the ICJ rendered its judgment in Avena, arguably "adjudicated on the merits" three claims It found that the Vienna Convention did not create individual, judicially enforceable rights and that state procedural default rules barred Medellín's consular access claim Finally, and perhaps most importantly, the state trial court found that Medellín "fail[ed] to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest for capital murder; [Medellín] was provided with effective legal representation upon [his] request; and [his] constitutional rights were safeguarded" App to Pet for Cert 56a[2] Medellín would have to overcome the deferential standard with regard to all of these findings before obtaining federal habeas relief on his Vienna Convention claim[3] Third, a habeas corpus petitioner generally cannot enforce a "new rule" of law Teague v Lane, 489 US 288 *666 Before relief could be granted, then, we would be obliged to decide whether or how the Avena judgment bears on our ordinary "new rule" jurisprudence Fourth, Medellín requires a certificate of appealability in order to pursue the merits of his claim on appeal 28 US C 2253(c)(1) A certificate of appealability may be granted only where there is "a substantial showing of the denial of a constitutional right" 2253(c)(2) (emphasis added) To obtain the necessary certificate of appealability to proceed in the Court of Appeals, Medellín must demonstrate that his allegation of a treaty violation could satisfy this standard See Slack v McDaniel, 529 US 473, Fifth, Medellín can seek federal habeas relief only on claims that have been exhausted in state court See 28 US C 2254(b)(1)(A), (b)(3) To gain relief based on the President's memorandum or ICJ judgments, Medellín would have to show that he exhausted all available state-court remedies[4] In light of the possibility that the Texas courts will provide Medellín with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellín's pending action, we think it would be unwise to reach and resolve the multiple hindrances *667 to dispositive answers to the questions here presented Accordingly, we dismiss the writ as improvidently granted It is so ordered

Justice Scalia

majority

Edwards v. Carpenter

https://www.courtlistener.com/opinion/118357/edwards-v-carpenter/

https://www.courtlistener.com/api/rest/v3/clusters/118357/

1999-051

This case presents the question whether a federal habeas court is barred from considering an ineffective-assistanceof-counsel claim as "cause" for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted. I Respondent was indicted by an Ohio grand jury for aggravated murder and aggravated robbery. He entered a guilty plea while maintaining his innocence—a procedure we held to be constitutional in North Carolina v. Alford, 400 U.S. 25 (1970)—in exchange for the prosecution's agreement that the guilty plea could be withdrawn if the three-judge panel that accepted it elected, after a mitigation hearing, to impose the death penalty. The panel accepted respondent's plea based on the prosecution's recitation of the evidence supporting the charges and, following a mitigation hearing, sentenced him to life imprisonment with parole eligibility after 30 years on the aggravated-murder count and to a concurrent term of 10 to 25 years on the aggravated-robbery count. On direct appeal respondent, represented by new counsel, assigned only the single error that the evidence offered in mitigation established that he should have been *449 eligible for parole after 20 rather than 30 years. The Ohio Court of Appeals affirmed, and respondent did not appeal to the Ohio Supreme Court. After unsuccessfully pursuing state postconviction relief pro se, respondent, again represented by new counsel, filed an application in the Ohio Court of Appeals to reopen his direct appeal, pursuant to Ohio Rule of Appellate Procedure 26(B),[1] on the ground that his original appellate counsel was constitutionally ineffective in failing to raise on direct appeal a challenge to the sufficiency of the evidence. The appellate court dismissed the application because respondent had failed to show, as the rule required, good cause for filing after the 90-day period allowed.[2] The Ohio Supreme Court, in a one-sentence per curiam opinion, affirmed. State v. Carpenter, 74 Ohio St. 3d 408, 659 N.E.2d 786 (1996). On May 3, 1996, respondent filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging, inter alia, that the evidence supporting his plea and sentence was insufficient, in violation of the Fifth and Fourteenth Amendments, and that his appellate counsel was constitutionally ineffective in failing to raise that claim on direct appeal. Concluding that respondent's sufficiency-of-the-evidence claim was procedurally defaulted, the District Court considered next whether the ineffective-assistance-of-counsel claim could *450 serve as cause excusing that default. The District Court acknowledged that the ineffective-assistance claim had been dismissed on procedural grounds, but concluded that Rule 26(B)'s inconsistent application by the Ohio courts rendered it inadequate to bar federal habeas review. See Ford v. Georgia, 498 U.S. 411, 423-424 (1991) (state procedural default is not an "independent and adequate state ground" barring subsequent federal review unless the state rule was "`firmly established and regularly followed' " at the time it was applied). Proceeding to the merits of the ineffectiveassistance claim, the District Court concluded that respondent's appellate counsel was constitutionally ineffective under the test established in Strickland v. Washington, 466 U.S. 668 (1984), and granted the writ of habeas corpus conditioned on the state appellate court's reopening of respondent's direct appeal of the sufficiency-of-the-evidence claim. On cross-appeals, the United States Court of Appeals for the Sixth Circuit held that respondent's ineffectiveassistance-of-counsel claim served as "cause" to excuse the procedural default of his sufficiency-of-the-evidence claim, whether or not the ineffective-assistance claim itself had been procedurally defaulted. Carpenter v. Mohr, 163 F.3d 938 (CA6 1998). In the panel's view, it sufficed that respondent had exhausted the ineffective-assistance claim by presenting it to the state courts in his application to reopen the direct appeal, even though that application might, under Ohio law, have been time barred. Finding in addition prejudice from counsel's failure to raise the sufficiencyof-the-evidence claim on direct appeal, the Sixth Circuit directed the District Court to issue the writ of habeas corpus conditioned upon the state court's according respondent a new culpability hearing. We granted certiorari. 528 U.S. 985 (1999). II Petitioner contends that the Sixth Circuit erred in failing to recognize that a procedurally defaulted ineffectiveassistance-of-counsel *451 claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. We agree. The procedural default doctrine and its attendant "cause and prejudice" standard are "grounded in concerns of comity and federalism," Coleman v. Thompson, 501 U.S. 722, 730 (1991), and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U.S. 478, 490-492 (1986). "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U. S., at 732. We therefore require a prisoner to demonstrate cause for his statecourt default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim. Id., at 750. The one exception to that rule, not at issue here, is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice. Ibid. Although we have not identified with precision exactly what constitutes "cause" to excuse a procedural default, we have acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice. Carrier, 477 U. S., at 488-489. Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. Ibid. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine—then as *452 now codified in the federal habeas statute, see 28 U.S. C. §§ 2254(b), (c)—require that constitutional claim, like others, to be first raised in state court. "[A] claim of ineffective assistance," we said, generally must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Carrier, supra, at 489. The question raised by the present case is whether Carrier `s exhaustion requirement for claims of ineffective assistance asserted as cause is uniquely immune from the procedural-default rule that accompanies the exhaustion requirement in all other contexts—whether, in other words, it suffices that the ineffective-assistance claim was "presented" to the state courts, even though it was not presented in the manner that state law requires. That is not a hard question. An affirmative answer would render Carrier `s exhaustion requirement illusory.[3] We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: "In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state *453 ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." 501 U.S., at 732. We again considered the interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838 (1999), concluding that the latter doctrine was necessary to "`protect the integrity' of the federal exhaustion rule." Id., at 848 (quoting id., at 853 (Stevens, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by "`letting the time run' " so that state remedies were no longer available. Id., at 848. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have "concededly exhausted his state remedies," it could hardly be said that, as comity and federalism require, the State had been given a "fair `opportunity to pass upon [his claims].' " Id., at 854 (Stevens, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim. Indeed, the Sixth Circuit may well conclude on remand that respondent can meet that standard in this case (although we should note that respondent has not argued that he can, preferring instead to argue that he does not have to). Or it may conclude, as did the District Court, that Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate procedural ground to bar federal habeas review of the ineffective-assistance claim. We express no view as to these issues, or on the question *454 whether respondent's appellate counsel was constitutionally ineffective in not raising the sufficiency-of-the-evidence claim in the first place. * * * For the foregoing reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Breyer, with whom Justice Stevens joins, concurring in the judgment.

This case presents the question whether a federal habeas court is barred from considering an ineffective-assistanceof-counsel claim as "cause" for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted. I Respondent was indicted by an Ohio grand jury for aggravated murder and aggravated robbery. He entered a guilty plea while maintaining his innocence—a procedure we held to be constitutional in North —in exchange for the prosecution's agreement that the guilty plea could be withdrawn if the three-judge panel that accepted it elected, after a mitigation hearing, to impose the death penalty. The panel accepted respondent's plea based on the prosecution's recitation of the evidence supporting the charges and, following a mitigation hearing, sentenced him to life imprisonment with parole eligibility after 30 years on the aggravated-murder count and to a concurrent term of 10 to 25 years on the aggravated-robbery count. On direct appeal respondent, represented by new counsel, assigned only the single error that the evidence offered in mitigation established that he should have been *449 eligible for parole after 20 rather than 30 years. The Ohio Court of Appeals affirmed, and respondent did not appeal to the Ohio Supreme Court. After unsuccessfully pursuing state postconviction relief pro se, respondent, again represented by new counsel, filed an application in the Ohio Court of Appeals to reopen his direct appeal, pursuant to Ohio Rule of Appellate Procedure 26(B),[1] on the ground that his original appellate counsel was constitutionally ineffective in failing to raise on direct appeal a challenge to the sufficiency of the evidence. The appellate court dismissed the application because respondent had failed to show, as the rule required, good cause for filing after the 90-day period allowed.[2] The Ohio Supreme Court, in a one-sentence per curiam opinion, affirmed. On May 3, respondent filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging, inter alia, that the evidence supporting his plea and sentence was insufficient, in violation of the Fifth and Fourteenth Amendments, and that his appellate counsel was constitutionally ineffective in failing to raise that claim on direct appeal. Concluding that respondent's sufficiency-of-the-evidence claim was procedurally defaulted, the District Court considered next whether the ineffective-assistance-of-counsel claim could *450 serve as cause excusing that default. The District Court acknowledged that the ineffective-assistance claim had been dismissed on procedural grounds, but concluded that Rule 26(B)'s inconsistent application by the Ohio courts rendered it inadequate to bar federal habeas review. See Proceeding to the merits of the ineffectiveassistance claim, the District Court concluded that respondent's appellate counsel was constitutionally ineffective under the test established in and granted the writ of habeas corpus conditioned on the state appellate court's reopening of respondent's direct appeal of the sufficiency-of-the-evidence claim. On cross-appeals, the United States Court of Appeals for the Sixth Circuit held that respondent's ineffectiveassistance-of-counsel claim served as "cause" to excuse the procedural default of his sufficiency-of-the-evidence claim, whether or not the ineffective-assistance claim itself had been procedurally defaulted. In the panel's view, it sufficed that respondent had exhausted the ineffective-assistance claim by presenting it to the state courts in his application to reopen the direct appeal, even though that application might, under Ohio law, have been time barred. Finding in addition prejudice from counsel's failure to raise the sufficiencyof-the-evidence claim on direct appeal, the Sixth Circuit directed the District Court to issue the writ of habeas corpus conditioned upon the state court's according respondent a new culpability hearing. We granted certiorari. II Petitioner contends that the Sixth Circuit erred in failing to recognize that a procedurally defaulted ineffectiveassistance-of-counsel *451 claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. We agree. The procedural default doctrine and its attendant "cause and prejudice" standard are "grounded in concerns of comity and federalism," and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack, "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." We therefore require a prisoner to demonstrate cause for his statecourt default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim. The one exception to that rule, not at issue here, is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice. Although we have not identified with precision exactly what constitutes "cause" to excuse a procedural default, we have acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice. -489. Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in that the principles of comity and federalism that underlie our longstanding exhaustion doctrine—then as *452 now codified in the federal habeas statute, see 28 U.S. C. 2254(b), (c)—require that constitutional claim, like others, to be first raised in state court. "[A] claim of ineffective assistance," we said, generally must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." The question raised by the present case is whether `s exhaustion requirement for claims of ineffective assistance asserted as cause is uniquely immune from the procedural-default rule that accompanies the exhaustion requirement in all other contexts—whether, in other words, it suffices that the ineffective-assistance claim was "presented" to the state courts, even though it was not presented in the manner that state law requires. That is not a hard question. An affirmative answer would render `s exhaustion requirement illusory.[3] We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in : "In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state *453 ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." We again considered the interplay between exhaustion and procedural default last Term in concluding that the latter doctrine was necessary to "`protect the integrity' of the federal exhaustion rule." (quoting ). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by "`letting the time run' " so that state remedies were no longer available. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have "concededly exhausted his state remedies," it could hardly be said that, as comity and federalism require, the State had been given a "fair `opportunity to pass upon [his claims].' " (emphasis added) ). To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim. Indeed, the Sixth Circuit may well conclude on remand that respondent can meet that standard in this case (although we should note that respondent has not argued that he can, preferring instead to argue that he does not have to). Or it may conclude, as did the District Court, that Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate procedural ground to bar federal habeas review of the ineffective-assistance claim. We express no view as to these issues, or on the question *454 whether respondent's appellate counsel was constitutionally ineffective in not raising the sufficiency-of-the-evidence claim in the first place. * * * For the foregoing reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Breyer, with whom Justice Stevens joins, concurring in the judgment.

Justice Powell

majority

Brown v. Glines

https://www.courtlistener.com/opinion/110173/brown-v-glines/

https://www.courtlistener.com/api/rest/v3/clusters/110173/

1979-022

This case involves challenges to United States Air Force regulations that require members of the service to obtain approval from their commanders before circulating petitions on Air Force bases. The first question is whether the regulations violate the First Amendment. The second question is whether prohibiting the unauthorized circulation of petitions to Members of Congress violates 10 U.S. C. § 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. I The Air Force regulations recognize that Air Force personnel have the right to petition Members of Congress and other public officials. Air Force Reg. 30-1 (9) (1971). The regulations, however, prohibit "any person within an Air Force facility" and "any [Air Force] member . . . in uniform or . . . in a foreign country" from soliciting signatures on a petition without first obtaining authorization from the appropriate commander. Ibid.[1] They also provide that "[n]o member *350 of the Air Force will distribute or post any printed or written material . . . within any Air Force installation without permission of the commander. . . ." Air Force Reg. 35-15 (3) (a) (1) (1970). The commander can deny permission only if he determines that distribution of the material would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission. . . ." Id., 35-15 (3) (a) (2).[2] *351 Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards.[3] Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines' commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. Glines then brought suit in the United States District Court for the Northern District of California claiming that the Air Force regulations requiring prior approval for the circulation of petitions violated the First Amendment and 10 U.S. C. § 1034.[4] The court granted Glines' motion for *352 summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F. Supp. 127 (1975).[5] The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F.2d 675 (1978).[6] Following its decision in an earlier case involving collective petitions to Members of Congress, the court first determined that the regulations violated 10 U.S. C. § 1034.[7] The statute prohibits any person from restricting a serviceman's communication with Congress "unless the communication is unlawful or violates a regulation necessary to the security of the United States." The Air Force regulations against unauthorized petitioning on any base did not satisfy the statutory standard, the court concluded, because the Government had not shown that such restraints on servicemen in Guam were necessary to the national security. 586 F.2d, at 679. Since § 1034 did not cover Glines' petition to the Secretary of Defense, the court next considered whether the regulations violated the First Amendment. The court acknowledged that requirements of military discipline could justify otherwise impermissible restrictions on speech. It held, however, that *353 the Air Force regulations are unconstitutionally overbroad because they might allow commanders to suppress "virtually all controversial written material." 586 F.2d, at 681. Such restrictions the court concluded, "exceed anything essential to the government's interests." Ibid. We granted certiorari, 440 U.S. 957 (1979), and we now reverse. II In Greer v. Spock, 424 U.S. 828, 840 (1976), MR. JUSTICE STEWART wrote for the Court that "nothing in the Constitution. . . disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command." In that case, civilians who wished to distribute political literature on a military base challenged an Army regulation substantially identical to the Air Force regulations now at issue. See id., at 831, and n. 2. The civilians claimed that the Army regulation was an unconstitutional prior restraint on speech, invalid on its face. We disagreed. We recognized that a base commander may prevent the circulation of material that he determines to be a clear threat to the readiness of his troops. See id., at 837-839. We therefore sustained the Army regulation. Id., at 840.[8] For the same reasons, we now uphold the Air Force regulations.[9] *354 These regulations, like the Army regulation in Spock, protect a substantial Government interest unrelated to the suppression of free expression. See Procunier v. Martinez, 416 U.S. 396, 413 (1974). The military is, "by necessity, a specialized society separate from civilian society." Parker v. Levy, 417 U.S. 733, 743 (1974). Military personnel must be ready to perform their duty whenever the occasion arises. Ibid. To ensure that they always are capable of performing their mission promptly and reliably, the military services "must insist upon a respect for duty and a discipline without counterpart in civilian life." Schlesinger v. Councilman, 420 U.S. 738, 757 (1975); see Department of Air Force v. Rose, 425 U.S. 352, 367-368 (1976). "`Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.'" Parker v. Levy, supra, at 759, quoting United States v. Priest, 21 U.S. C. M. A. 564, 570, 45 Cow. M. R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, "the different character of the military community and of the military mission requires a different application of those protections." Parker v. Levy, 417 U. S., at 758. The rights of military men must yield somewhat "`to meet certain overriding demands of discipline and duty. . . .'" Id., at 744, quoting Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion).[10] Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, *355 424 U. S., at 840; id., at 841 (BURGER, C. J., concurring); id., at 848 (POWELL, J., concurring). Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest. See Procunier v. Martinez, supra. Both the Army and the Air Force regulations implement the policy set forth in Department of Defense (DOD) Directive 1325.6 (1969).[11] That directive advises commanders to preserve servicemen's "right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security." Id., ¶ II. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. 35-15 (3) (a) (2) (1970); Army Reg. 210-10, ¶ 5-5 (c) (1970); see DOD Dir. 1325.6, ¶ III (A) (1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. 35-15 (3) (a) (4) (1970); see DOD Dir. 1325.6, ¶ III (A) (3) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. 35-15 (3) (a) (1) (1970); see DOD Dir. 1325.6, ¶ III (A) (1) (1969).[12] Nor may they interfere with the "[d]istribution of publications and other materials through *356 the United States mail. . . ." Air Force Reg. 35-15 (3) (a) (1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. 35-15 (3) (a) (2) (1970); see Army Reg. 210-10, ¶ 5-5 (d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First Amendment. 424 U.S., at 840; id., at 848 (POWELL, J., concurring). Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. Id., at 840.[13] Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force.[14] "[T]he accuracy and effect of a superior's command *357 depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior." Department of Air Force v. Rose, 425 U. S., at 368. Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., Schlesinger v. Councilman, 420 U.S. 738 (1975); Parker v. Levy, 417 U.S. 733 (1974); Burns v. Wilson, 346 U.S. 137 (1953); Orloff v. Willoughby, 345 U.S. 83 (1953); In re Grimley, 137 U.S. 147 (1890). In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.[15]*358 The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First Amendment. III The only novel question in this case is whether 10 U.S. C. § 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive. Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy "had been told by his commanding officer . . . that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial." 97 Cong. Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required "any letter from a member of the naval service . . . to a Congressman which affects the Naval Establishment . . . [to] be sent through official channels." Ibid.[16] The Congressman *359 then proposed an amendment to the pending military legislation that would outlaw this requirement. Congressman Byrnes' purpose was "to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator." Ibid.[17] The entire legislative history of the measure focuses on providing an avenue for the communication of individual grievances. The Chairman of the Armed Services Committee succinctly summarized the legislative understanding. The amendment, he said, was intended "to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter." Id., at 3877. It therefore is clear that Congress enacted § 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.[18] *360 Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. See, e. g., Middendorf v. Henry, 425 U.S. 25, 37-40, 43 (1976); id., at 49-51 (POWELL, J., concurring); Parker v. Levy, 417 U. S., at 756; Orloff v. Willoughby, 345 U. S., at 93-94.[19] In construing a statute that touches on such matters, therefore, courts must be careful not to "circumscribe the authority of military commanders to an extent never intended by Congress." Huff v. Secretary of Navy, 188 U. S. App. D. C. 26, 35, 575 F.2d 907, 916 (1978) (Tamm, J., concurring in part and dissenting in part), rev'd, post, p. 453. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of § 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.[20] We therefore decide *361 that § 1034 does not protect the circulation of collective petitions within a military base. IV We conclude that neither the First Amendment nor 10 U.S. C. § 1034 prevents the Air Force from requiring members of the service to secure approval from the base commander before distributing petitions within a military base. We therefore hold that the regulations at issue in this case are not invalid on their face. Accordingly, the judgment of the Court of Appeals is Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. MR.

This case involves challenges to United States Air Force regulations that require members of the service to obtain approval from their commanders before circulating petitions on Air Force bases. The first question is whether the regulations violate the First The second question is whether prohibiting the unauthorized circulation of petitions to Members of Congress violates 10 U.S. C. 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. I The Air Force regulations recognize that Air Force personnel have the right to petition Members of Congress and other public officials. Air Force Reg. 30-1 (9) (1971). The regulations, however, prohibit "any person within an Air Force facility" and "any [Air Force] member in uniform or in a foreign country" from soliciting signatures on a petition without first obtaining authorization from the appropriate commander. [1] They also provide that "[n]o member *350 of the Air Force will distribute or post any printed or written material within any Air Force installation without permission of the commander." Air Force Reg. (a) (1) (1970). The commander can deny permission only if he determines that distribution of the material would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission." (a) (2).[2] *351 Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards.[3] Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines' commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. Glines then brought suit in the United States District Court for the Northern District of California claiming that the Air Force regulations requiring prior approval for the circulation of petitions violated the First Amendment and 10 U.S. C. 1034.[4] The court granted Glines' motion for *352 summary judgment and declared the regulations facially invalid.[5] The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity.[6] Following its decision in an earlier case involving collective petitions to Members of Congress, the court first determined that the regulations violated 10 U.S. C. 1034.[7] The statute prohibits any person from restricting a serviceman's communication with Congress "unless the communication is unlawful or violates a regulation necessary to the security of the United States." The Air Force regulations against unauthorized petitioning on any base did not satisfy the statutory standard, the court concluded, because the Government had not shown that such restraints on servicemen in Guam were necessary to the national security. Since 1034 did not cover Glines' petition to the Secretary of Defense, the court next considered whether the regulations violated the First The court acknowledged that requirements of military discipline could justify otherwise impermissible restrictions on speech. It held, however, that *353 the Air Force regulations are unconstitutionally overbroad because they might allow commanders to suppress "virtually all controversial written material." Such restrictions the court concluded, "exceed anything essential to the government's interests." We granted certiorari, and we now reverse. II In MR. JUSTICE STEWART wrote for the Court that "nothing in the Constitution. disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command." In that case, civilians who wished to distribute political literature on a military base challenged an Army regulation substantially identical to the Air Force regulations now at issue. See and n. 2. The civilians claimed that the Army regulation was an unconstitutional prior restraint on speech, invalid on its face. We disagreed. We recognized that a base commander may prevent the circulation of material that he determines to be a clear threat to the readiness of his troops. See We therefore sustained the Army regulation. at[8] For the same reasons, we now uphold the Air Force regulations.[9] *354 These regulations, like the Army regulation in Spock, protect a substantial Government interest unrelated to the suppression of free expression. See The military is, "by necessity, a specialized society separate from civilian society." Military personnel must be ready to perform their duty whenever the occasion arises. To ensure that they always are capable of performing their mission promptly and reliably, the military services "must insist upon a respect for duty and a discipline without counterpart in civilian life." ; see Department of Air "`Speech that is protected in the civil population may undermine the effectiveness of response to command.'" quoting United States v. Priest, 21 U.S. C. M. A. 564, 570, 45 Cow. M. R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, "the different character of the military community and of the military mission requires a different application of those protections." The rights of military men must yield somewhat "`to meet certain overriding demands of discipline and duty.'" quoting[10] Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, * 424 U. S., at ; ; Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest. See Both the Army and the Air Force regulations implement the policy set forth in Department of Defense (DOD) Directive 1325.6 (1969).[11] That directive advises commanders to preserve servicemen's "right of expression to the maximum extent possible, consistent with good order and discipline and the national security." ¶ II. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. (a) (2) (1970); Army Reg. 210-10, ¶ 5-5 (c) (1970); see DOD Dir. 1325.6, ¶ III (A) (1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. (a) (4) (1970); see DOD Dir. 1325.6, ¶ III (A) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. (a) (1) (1970); see DOD Dir. 1325.6, ¶ III (A) (1) (1969).[12] Nor may they interfere with the "[d]istribution of publications and other materials through *356 the United States mail." Air Force Reg. (a) (1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. (a) (2) (1970); see Army Reg. 210-10, ¶ 5-5 (d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First 424 U.S., at ; Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. at[13] Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force.[14] "[T]he accuracy and effect of a superior's command *357 depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior." Department of Air Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., ; ; ; ; In re Grimley, In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.[15]*358 The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First III The only novel question in this case is whether 10 U.S. C. 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive. Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy "had been told by his commanding officer that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial." 97 Cong. Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required "any letter from a member of the naval service to a Congressman which affects the Naval Establishment [to] be sent through official channels." [16] The Congressman *359 then proposed an amendment to the pending military legislation that would outlaw this requirement. Congressman Byrnes' purpose was "to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator." [17] The entire legislative history of the measure focuses on providing an avenue for the communication of individual grievances. The Chairman of the Armed Services Committee succinctly summarized the legislative understanding. The amendment, he said, was intended "to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter." It therefore is clear that Congress enacted 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.[18] *360 Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. See, e. g., ; ; ; -94.[19] In construing a statute that touches on such matters, therefore, courts must be careful not to "circumscribe the authority of military commanders to an extent never intended by Congress." rev'd, post, p. 453. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.[20] We therefore decide *361 that 1034 does not protect the circulation of collective petitions within a military base. IV We conclude that neither the First Amendment nor 10 U.S. C. 1034 prevents the Air Force from requiring members of the service to secure approval from the base commander before distributing petitions within a military base. We therefore hold that the regulations at issue in this case are not invalid on their face. Accordingly, the judgment of the Court of Appeals is Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. MR.

Justice White

majority

Hicks v. Miranda

https://www.courtlistener.com/opinion/109296/hicks-v-miranda/

https://www.courtlistener.com/api/rest/v3/clusters/109296/

1974-134

This case poses issues under Younger v. Harris, 401 U.S. 37 (1971), Samuels v. Mackell, 401 U.S. 66 (1971), and related cases, as well as the preliminary question as to our jurisdiction of this direct appeal from a judgment of a three-judge District Court. I On November 23 and 24, 1973, pursuant to four separate warrants issued seriatim, the police seized four copies of the film "Deep Throat," each of which had been shown at the Pussycat Theatre in Buena Park, Orange *335 County, Cal.[1] On November 26 an eight-court criminal misdemeanor charge was filed in the Orange County Municipal Court against two employees of the theater, each film seized being the subject matter of two counts in the complaint. Also on November 26, the Superior Court of Orange County ordered appellees[2] to show cause why "Deep Throat" should not be declared obscene, an immediate hearing being available to appellees, who appeared that day, objected on state-law grounds to the court's jurisdiction to conduct such a proceeding, purported to "reserve" all federal questions, and refused further to participate. Thereupon, on November 27 the Superior Court held a hearing, viewed the film, took evidence, and then declared the movie to be obscene *336 and ordered seized all copies of it that might be found at the theater. This judgment and order were not appealed by appellees.[3] *337 Instead, on November 29, they filed this suit in the District Court against appellants—four police officers of Buena Park and the District Attorney and Assistant District Attorney of Orange Country. The complaint recited the seizures and the proceedings in the Superior Court, stated that the action was for an injunction against the enforcement of the California obscenity statute, *338 and prayed for judgment declaring the obscenity statute unconstitutional, and for an injunction ordering the return of all copies of the film, but permitting one of the films to be duplicated before its return. A temporary restraining order was requested and denied, the District Judge finding the proof of irreparable injury to be lacking and an insufficient likelihood of prevailing on the merits to warrant an injunction.[4] He requested the convening of a three-judge court, however, to consider the constitutionality of the statute. Such a court was then designated on January 8, 1974.[5] Service of the complaint was completed on January 14, 1974, and answers and motions to dismiss, as well as a motion for summary judgment, were filed by appellants. Appellees moved for a preliminary injunction.[6] None *339 of the motions was granted and no hearings held, all of the issues being ordered submitted on briefs and affidavits. The Attorney General of California also appeared and urged the District Court to follow People v. Enskat, 33 Cal. App. 3d 900, 109 Cal. Rptr. 433 (1973) (hearing denied Oct. 24, 1973), which, after Miller v. California, 413 U.S. 15 (1973) (Miller I), had upheld the California obscenity statute. Meanwhile, on January 15, the criminal complaint pending in the Municipal Court had been amended by naming appellees[7] as additional parties defendant and by adding four conspiracy counts, one relating to each of the seized films. Also, on motions of the defendants in that case, two of the films were ordered suppressed on the ground that the two search warrants for seizing "Deep Throat" last issued, one on November 23 and the other on November 24, did not sufficiently allege that the films to be seized under those warrants differed from each other and from the films previously seized, the final two seizures being said to be invalid multiple seizures.[8] Immediately after this order, which was later appealed and reversed, the defense and the prosecution stipulated that for purposes of the trial, which was expected to be forth-coming, *340 the four prints of the film would be considered identical and only one copy would have to be proved at trial.[9] On June 4, 1974, the three-judge court issued its judgment and opinion declaring the California obscenity statute to be unconstitutional for failure to satisfy the requirements of Miller I and ordering appellants to return to appellees all copies of "Deep Throat" which had been seized as well as to refrain from making any additional seizures. Appellants' claim that Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971), required dismissal of the case was rejected, the court holding that no criminal charges were pending in the state court against appellees and that in any event the pattern of search warrants and seizures demonstrated bad faith and harassment on the part of the authorities, all of which relieved the court from the strictures of Younger v. Harris, supra, and its related cases. Appellants filed various motions for rehearing, to amend the judgment, and for relief from judgment, also later calling the court's attention to two developments they considered important: First, the dismissal on July 25, 1974, "for want of a substantial federal question" of the appeal in Miller v. California, 418 U.S. 915 (Miller II), from a judgment of the Superior Court, Appellate Department, Orange County, California, sustaining the constitutionality of the very California obscenity statute which the District Court had declared unconstitutional; second, the reversal by the Superior Court, Appellate Department, of the suppression order which had been issued in the criminal case pending in the Municipal Court, the per curiam reversal citing Aday v. Superior *341 Court, 55 Cal. 2d 789, 362 P.2d 47 (1961), and saying the "requisite prompt adversary determination of obscenity under Heller v. New York . . . has been held."[10] On September 30, the three-judge court denied appellants' motions, reaffirmed its June 4 Younger v. Harris ruling and, after concluding it was not bound by the dismissal of MIller II, adhered to its judgment that the California statute was invalid under the Federal Constitution. *342 In response to appellants' claim that they were without power to comply with the June 4 injunction, the films being in the possession of the Municipal Court, the court amended the injunctive portion of its order so as to read as follows: "The defendants shall in good faith petition the Municipal Court of the North Orange County Judicial District to return to the plaintiffs three of the four film prints seized from the plaintiffs on November 23 and 24, 1973, in the City of Buena Park." Appeals were taken to this Court from both the judgment of June 4 and the amended judgment of September 30. We postponed further consideration of our jurisdiction to the consideration of the merits of the case. 419 U.S. 1018 (1974).[11] II We deal first with question about our jurisdiction over this direct appeal under 28 U.S. C. § 1253.[12] At the *343 outset, this case was concededly a matter for a three-judge court. Appellees' complaint asserted as much, and they do not now contend otherwise.[13] Furthermore, on June 4 the District Court declared the California obscenity statute unconstitutional and ordered the return of all copies of the film that had been seized. Appellees do not claim that this order, which would have aborted the pending criminal prosecution, was not an injunction within the meaning of § 1253 and was not appealable here. The jurisdictional issues arise from events that occurred subsequent to June 4. A The first question emerges from our summary dismissal in Miller II. Appellants claimed in the District Court, and claim here, that Miller II was binding on the District Court and required that court to sustain the California obscenity statute and to dismiss the case. If appellants are correct in this position, the question arises whether Miller II removed the necessity for a three-judge court under the rule of Bailey v. Patterson, 369 U.S. 31 (1962), in which event our appellate jurisdiction under 28 U.S. C. § 1253 would also evaporate. We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a *344 state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S. C. § 1257 (2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As MR. JUSTICE BRENNAN once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case . . . ," Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959); cf. R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed. 1969) ("The Court is, however, deciding a case on the merits, when it dismisses for want of a substantial question . . ."); C. Wright, Law of Federal Courts 495 (2d ed. 1970) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits"). The District Court should have followed the Second Circuit's advice, first, in Port Authority Bond-holders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (1967), that "unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise"; and, later, in Doe v. Hodgson, 478 F.2d 537, 539, cert. denied sub nom. Doe v. Brennan, 414 U.S. 1096 (1973), that the lower courts are bound by summary *345 decisions by this Court " `until such time as the Court informs [them] that [they] are not.' " Although the constitutional issues which were presented in Miller II and which were declared to be insubstantial by this Court, could not be considered substantial and decided otherwise by the District Court, we cannot conclude that Miller II required that the three-judge court be dissolved in the circumstances of this case.[14] Appellees, as plaintiffs in the District Court, not only challenged the enforcement of the obscenity statute but also sought to enjoin the enforcement of the California search warrant statutes, Penal Code §§ 1523-1542 (1970 ed. and Supp. 1975), insofar as they might be applied, contrary to Heller v. New York, 413 U.S. 483 (1973), to permit the multiple seizures that occurred in this case. The application for a preliminary injunction made this aim of the suit quite express. The three-judge court in its June 4 decision declared the obscenity statute unconstitutional and ordered four copies of the film returned. Its constitutional conclusion was reaffirmed on September 30, despite Miller II, and its injunction was to some extent modified. Miller II, however, had nothing to do with the validity of multiple seizures as an issue wholly independent of the validity of the obscenity statutes. *346 That issue—the validity, in light of Heller, of the challenged application of the search warrant statutes—remained in the case after the Miller II dismissal. Indeed, although the District Court based its injunctive order on the unconstitutionality of the obscenity statutes, the injunction also interfered with the enforcement of the California search warrant statutes, necessarily on constitutional grounds.[15] With this question in the case, the three-judge court should have remained in session, as it did, and, as it also did, should have dealt with the Younger issue before reaching the merits of the constitutional issues presented. That issue, however, as we show in Part III, was not correctly decided. *347 B Appellees contend (1) that under Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90 (1974), and MTM, Inc. v. Baxley, 420 U.S. 799 (1975), the only injunctions issued by properly convened three-judge courts that are directly appealable here are those that three-judge courts alone may issue and (2) that the injunction finally issued on September 30 was not one that is reserved to a three-judge court under 28 U.S. C. § 2281. Even if appellees' premise is correct, but see Philbrook v. Glodgett, 421 U.S. 707, 712-713, n. 8 (1975), we cannot agree with the conclusion that the injunction entered here was not appealable. Not only was a state statute declared unconstitutional but also the injunctive order, as amended September 30, 1974, required appellants to seek the return of the three prints of "Deep Throat" which were the subject of nine of the 12 counts of the amended criminal complaint still pending in the Municipal Court. Return of the copies would prohibit their use as evidence and would, furthermore, prevent their retention and probable destruction as contraband should the State prevail in the criminal case. Plainly, the order interfered with the pending criminal prosecution and with the enforcement of a state obscenity statute. In the circumstances here, the injunctive order, issued as it was by a federal court against state authorities, necessarily rested on federal constitutional grounds. Aside from its opinion that the California statute was unconstitutional, the District Court articulated no basis for assuming authority to order the return of the films and in effect to negate not only three of the four seizures under state search warrants, which the Appellate Department of the Superior Court had upheld, but also the proceedings in the Superior Court that had declared the film to be obscene *348 and seizable.[16] The District Court's June 4 opinion, we think, made its constitutional thesis express: "The gravamen of the defendants' justification is, of course, that the property is contraband, both the evidence and the fruit of an illegal activity. Such a justification, however, dissipates in the face of a declaration by this court that the statute is invalid." We accordingly conclude that the September 30 injunction, as well as the declaratory judgment underlying it, is properly before the Court. III The District Court committed error in reaching the merits of this case despite the appellants' insistence that it be dismissed under Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). When they filed their federal complaint, no state criminal proceedings were pending against appellees by name; but two employees of the theater had been charged and four copies of "Deep Throat" belonging to appellees had been seized, were being held, and had been declared to be obscene and seizable by the Superior Court. Appellees had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obviously, their interests and those of their employees were intertwined; *349 and, as we have pointed out, the federal action sought to interfere with the pending state prosecution. Absent a clear showing that appellees, whose lawyers also represented their employees, could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there, the requirements of Younger v. Harris could not be avoided on the ground that no criminal prosecution was pending against appellees on the date the federal complaint was filed. The rule in Younger v. Harris is designed to "permit state courts to try state cases free from interference by federal courts," 401 U.S., at 43, particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, "[t]he same comity considerations apply," Allee v. Medrano, 416 U.S. 802, 831 (1974) (BURGER, C. J., concurring), where the interference is sought by some, such as appellees, not parties to the state case. What is more, on the day following the completion of service of the complaint, appellees were charged along with their employees in Municipal Court. Neither Steffel v. Thompson, 415 U.S. 452 (1974), nor any other case in this Court has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal case is filed. Indeed, the issue has been left open;[17] and we now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force. Here, appellees were charged *350 on January 15, prior to answering the federal case and prior to any proceedings whatsoever before the three-judge court. Unless we are to trivialize the principles of Younger v. Harris, the federal complaint should have been dismissed on the appellants' motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions to the rule of Younger v. Harris and related cases.[18] The District Court concluded that extraordinary circumstances had been shown in the form of official harassment and bad faith, but this was also error. The relevant findings of the District Court were vague and conclusory.[19] There were references to the "pattern of *351 seizure" and to "the evidence brought to light by the petition for rehearing"; and the unexplicated conclusion was then drawn that "regardless of the nature of any judicial proceeding," the police were bent on banishing "Deep Throat" from Buena Park. Yet each step in the pattern of seizures condemned by the District Court was authorized by judicial warrant or order; and the District Court did not purport to invalidate any of the four warrants, in any way to question the propriety of the proceedings in the Superior Court,[20] or even to mention the reversal of the suppression order in the Appellate Department of that court. Absent at least some effort by the District Court to impeach the entitlement of the prosecuting officials to rely on repeated judicial authorization for their conduct, we cannot agree that bad faith and harassment were made out. Indeed, such conclusion would not necessarily follow even if it were shown that the state courts were in error on some one or more issues of state or federal law.[21] *352 In the last analysis, it seems to us that the District Court's judgment rests almost entirely on its conclusion that the California obscenity statute was unconstitutional and unenforceable. But even assuming that the District Court was correct in its conclusion, the statute had not been so condemned in November 1973, and the District Court was not entitled to infer official bad faith merely because it—the District Court—disagreed with People v. Enskat. Otherwise, bad faith and harassment would be present in every case in which a state statute is ruled unconstitutional, and the rule of Younger v. Harris would be swallowed up by its exception. The District Court should have dismissed the complaint before it and we accordingly reverse its judgment. So ordered. MR.

This case poses issues under and related cases, as well as the preliminary question as to our jurisdiction of this direct appeal from a judgment of a three-judge District Court. I On November 23 and 24, pursuant to four separate warrants issued seriatim, the police seized four copies of the film "Deep Throat," each of which had been shown at the Pussycat Theatre in Buena Park, Orange *335 County, Cal.[1] On November 26 an eight-court criminal misdemeanor charge was filed in the Orange County Municipal Court against two employees of the theater, each film seized being the subject matter of two counts in the complaint. Also on November 26, the Superior Court of Orange County ordered appellees[2] to show cause why "Deep Throat" should not be declared obscene, an immediate hearing being available to appellees, who appeared that day, objected on state-law grounds to the court's jurisdiction to conduct such a proceeding, purported to "reserve" all federal questions, and refused further to participate. Thereupon, on November 27 the Superior Court held a hearing, viewed the film, took evidence, and then declared the movie to be obscene *336 and ordered seized all copies of it that might be found at the theater. This judgment and order were not appealed by appellees.[3] *337 Instead, on November 29, they filed this suit in the District Court against appellants—four police officers of Buena Park and the District Attorney and Assistant District Attorney of Orange Country. The complaint recited the seizures and the proceedings in the Superior Court, stated that the action was for an injunction against the enforcement of the California obscenity statute, *338 and prayed for judgment declaring the obscenity statute unconstitutional, and for an injunction ordering the return of all copies of the film, but permitting one of the films to be duplicated before its return. A temporary restraining order was requested and denied, the District Judge finding the proof of irreparable injury to be lacking and an insufficient likelihood of prevailing on the merits to warrant an injunction.[4] He requested the convening of a three-judge court, however, to consider the constitutionality of the statute. Such a court was then designated on January 8,[5] Service of the complaint was completed on January 14, and answers and motions to dismiss, as well as a motion for summary judgment, were filed by appellants. Appellees moved for a preliminary injunction.[6] None *339 of the motions was granted and no hearings held, all of the issues being ordered submitted on briefs and affidavits. The Attorney General of California also appeared and urged the District Court to follow which, after had upheld the California obscenity statute. Meanwhile, on January 15, the criminal complaint pending in the Municipal Court had been amended by naming appellees[7] as additional parties defendant and by adding four conspiracy counts, one relating to each of the seized films. Also, on motions of the defendants in that case, two of the films were ordered suppressed on the ground that the two search warrants for seizing "Deep Throat" last issued, one on November 23 and the other on November 24, did not sufficiently allege that the films to be seized under those warrants differed from each other and from the films previously seized, the final two seizures being said to be invalid multiple seizures.[8] Immediately after this order, which was later appealed and reversed, the defense and the prosecution stipulated that for purposes of the trial, which was expected to be forth-coming, *340 the four prints of the film would be considered identical and only one copy would have to be proved at trial.[9] On June 4, the three-judge court issued its judgment and opinion declaring the California obscenity statute to be unconstitutional for failure to satisfy the requirements of Miller I and ordering appellants to return to appellees all copies of "Deep Throat" which had been seized as well as to refrain from making any additional seizures. Appellants' claim that and required dismissal of the case was rejected, the court holding that no criminal charges were pending in the state court against appellees and that in any event the pattern of search warrants and seizures demonstrated bad faith and harassment on the part of the authorities, all of which relieved the court from the strictures of and its related cases. Appellants filed various motions for rehearing, to amend the judgment, and for relief from judgment, also later calling the court's attention to two developments they considered important: First, the dismissal on July 25, "for want of a substantial federal question" of the appeal in (Miller II), from a judgment of the Superior Court, Appellate Department, Orange County, California, sustaining the constitutionality of the very California obscenity statute which the District Court had declared unconstitutional; second, the reversal by the Superior Court, Appellate Department, of the suppression order which had been issued in the criminal case pending in the Municipal Court, the per curiam reversal citing and saying the "requisite prompt adversary determination of obscenity under has been held."[10] On September 30, the three-judge court denied appellants' motions, reaffirmed its June 4 ruling and, after concluding it was not bound by the dismissal of MIller II, adhered to its judgment that the California statute was invalid under the Federal Constitution. *342 In response to appellants' claim that they were without power to comply with the June 4 injunction, the films being in the possession of the Municipal Court, the court amended the injunctive portion of its order so as to read as follows: "The defendants shall in good faith petition the Municipal Court of the North Orange County Judicial District to return to the plaintiffs three of the four film prints seized from the plaintiffs on November 23 and 24, in the City of Buena Park." Appeals were taken to this Court from both the judgment of June 4 and the amended judgment of September 30. We postponed further consideration of our jurisdiction to the consideration of the merits of the case.[11] II We deal first with question about our jurisdiction over this direct appeal under 28 U.S. C. 1253.[12] At the *343 outset, this case was concededly a matter for a three-judge court. Appellees' complaint asserted as much, and they do not now contend otherwise.[13] Furthermore, on June 4 the District Court declared the California obscenity statute unconstitutional and ordered the return of all copies of the film that had been seized. Appellees do not claim that this order, which would have aborted the pending criminal prosecution, was not an injunction within the meaning of 1253 and was not appealable here. The jurisdictional issues arise from events that occurred subsequent to June 4. A The first question emerges from our summary dismissal in Miller II. Appellants claimed in the District Court, and claim here, that Miller II was binding on the District Court and required that court to sustain the California obscenity statute and to dismiss the case. If appellants are correct in this position, the question arises whether Miller II removed the necessity for a three-judge court under the rule of in which event our appellate jurisdiction under 28 U.S. C. 1253 would also evaporate. We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a *344 state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S. C. 1257 (2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As MR. JUSTICE BRENNAN once observed, "[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case" Ohio ex rel. ; cf. R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed. 1969) ("The Court is, however, deciding a case on the merits, when it dismisses for want of a substantial question"); C. Wright, Law of Federal Courts 495 (2d ed. 1970) ("Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits"). The District Court should have followed the Second Circuit's advice, first, in Port Authority Bond-holders Protective that "unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise"; and, later, in that the lower courts are bound by summary *345 decisions by this Court " `until such time as the Court informs [them] that [they] are not.' " Although the constitutional issues which were presented in Miller II and which were declared to be insubstantial by this Court, could not be considered substantial and decided otherwise by the District Court, we cannot conclude that Miller II required that the three-judge court be dissolved in the circumstances of this case.[14] Appellees, as plaintiffs in the District Court, not only challenged the enforcement of the obscenity statute but also sought to enjoin the enforcement of the California search warrant statutes, Penal Code 1523-1542 insofar as they might be applied, contrary to to permit the multiple seizures that occurred in this case. The application for a preliminary injunction made this aim of the suit quite express. The three-judge court in its June 4 decision declared the obscenity statute unconstitutional and ordered four copies of the film returned. Its constitutional conclusion was reaffirmed on September 30, despite Miller II, and its injunction was to some extent modified. Miller II, however, had nothing to do with the validity of multiple seizures as an issue wholly independent of the validity of the obscenity statutes. *346 That issue—the validity, in light of Heller, of the challenged application of the search warrant statutes—remained in the case after the Miller II dismissal. Indeed, although the District Court based its injunctive order on the unconstitutionality of the obscenity statutes, the injunction also interfered with the enforcement of the California search warrant statutes, necessarily on constitutional grounds.[15] With this question in the case, the three-judge court should have remained in session, as it did, and, as it also did, should have dealt with the Younger issue before reaching the merits of the constitutional issues presented. That issue, however, as we show in Part III, was not correctly decided. *347 B Appellees contend (1) that under and MTM, the only injunctions issued by properly convened three-judge courts that are directly appealable here are those that three-judge courts alone may issue and (2) that the injunction finally issued on September 30 was not one that is reserved to a three-judge court under 28 U.S. C. 2281. Even if appellees' premise is correct, but see we cannot agree with the conclusion that the injunction entered here was not appealable. Not only was a state statute declared unconstitutional but also the injunctive order, as amended September 30, required appellants to seek the return of the three prints of "Deep Throat" which were the subject of nine of the 12 counts of the amended criminal complaint still pending in the Municipal Court. Return of the copies would prohibit their use as evidence and would, furthermore, prevent their retention and probable destruction as contraband should the State prevail in the criminal case. Plainly, the order interfered with the pending criminal prosecution and with the enforcement of a state obscenity statute. In the circumstances here, the injunctive order, issued as it was by a federal court against state authorities, necessarily rested on federal constitutional grounds. Aside from its opinion that the California statute was unconstitutional, the District Court articulated no basis for assuming authority to order the return of the films and in effect to negate not only three of the four seizures under state search warrants, which the Appellate Department of the Superior Court had upheld, but also the proceedings in the Superior Court that had declared the film to be obscene *348 and seizable.[16] The District Court's June 4 opinion, we think, made its constitutional thesis express: "The gravamen of the defendants' justification is, of course, that the property is contraband, both the evidence and the fruit of an illegal activity. Such a justification, however, dissipates in the face of a declaration by this court that the statute is invalid." We accordingly conclude that the September 30 injunction, as well as the declaratory judgment underlying it, is properly before the Court. III The District Court committed error in reaching the merits of this case despite the appellants' insistence that it be dismissed under and When they filed their federal complaint, no state criminal proceedings were pending against appellees by name; but two employees of the theater had been charged and four copies of "Deep Throat" belonging to appellees had been seized, were being held, and had been declared to be obscene and seizable by the Superior Court. Appellees had a substantial stake in the state proceedings, so much so that they sought federal relief, demanding that the state statute be declared void and their films be returned to them. Obviously, their interests and those of their employees were intertwined; *349 and, as we have pointed out, the federal action sought to interfere with the pending state prosecution. Absent a clear showing that appellees, whose lawyers also represented their employees, could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there, the requirements of could not be avoided on the ground that no criminal prosecution was pending against appellees on the date the federal complaint was filed. The rule in is designed to "permit state courts to try state cases free from interference by federal courts," particularly where the party to the federal case may fully litigate his claim before the state court. Plainly, "[t]he same comity considerations apply," where the interference is sought by some, such as appellees, not parties to the state case. What is more, on the day following the completion of service of the complaint, appellees were charged along with their employees in Municipal Court. Neither nor any other case in this Court has held that for to apply, the state criminal proceedings must be pending on the day the federal case is filed. Indeed, the issue has been left open;[17] and we now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of should apply in full force. Here, appellees were charged *350 on January 15, prior to answering the federal case and prior to any proceedings whatsoever before the three-judge court. Unless we are to trivialize the principles of the federal complaint should have been dismissed on the appellants' motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions to the rule of and related cases.[18] The District Court concluded that extraordinary circumstances had been shown in the form of official harassment and bad faith, but this was also error. The relevant findings of the District Court were vague and conclusory.[19] There were references to the "pattern of *351 seizure" and to "the evidence brought to light by the petition for rehearing"; and the unexplicated conclusion was then drawn that "regardless of the nature of any judicial proceeding," the police were bent on banishing "Deep Throat" from Buena Park. Yet each step in the pattern of seizures condemned by the District Court was authorized by judicial warrant or order; and the District Court did not purport to invalidate any of the four warrants, in any way to question the propriety of the proceedings in the Superior Court,[20] or even to mention the reversal of the suppression order in the Appellate Department of that court. Absent at least some effort by the District Court to impeach the entitlement of the prosecuting officials to rely on repeated judicial authorization for their conduct, we cannot agree that bad faith and harassment were made out. Indeed, such conclusion would not necessarily follow even if it were shown that the state courts were in error on some one or more issues of state or federal law.[21] *352 In the last analysis, it seems to us that the District Court's judgment rests almost entirely on its conclusion that the California obscenity statute was unconstitutional and unenforceable. But even assuming that the District Court was correct in its conclusion, the statute had not been so condemned in November and the District Court was not entitled to infer official bad faith merely because it—the District Court—disagreed with Otherwise, bad faith and harassment would be present in every case in which a state statute is ruled unconstitutional, and the rule of would be swallowed up by its exception. The District Court should have dismissed the complaint before it and we accordingly reverse its judgment. So ordered. MR.

Justice Sotomayor

dissenting

Cullen v. Pinholster

https://www.courtlistener.com/opinion/213842/cullen-v-pinholster/

https://www.courtlistener.com/api/rest/v3/clusters/213842/

2010-035

Some habeas petitioners are unable to develop the fac tual basis of their claims in state court through no fault of their own. Congress recognized as much when it en acted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and permitted therein the introduction of new evidence in federal habeas proceed ings in certain limited circumstances. See 28 U.S. C. §2254(e)(2). Under the Court’s novel interpretation of §2254(d)(1), however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner has satisfied §2254(d)(1)’s threshold obstacle to federal habeas relief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In reading the statute to “compe[l]” this harsh result, ante, at 9, the Court ignores a key textual difference between §§2254(d)(1) and 2254(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the §2254(d)(1) inquiry. I therefore dissent from the Court’s first holding. I also disagree with the Court that, even if the §2254(d)(1) analysis is limited to the state-court record, respondent Scott Pinholster failed to demonstrate that the California Supreme Court’s decision denying his ineffec 2 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting tive-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). There is no reason for the majority to decide whether the §2254(d)(1) analysis is limited to the state court record because Pinholster satisfied §2254(d)(1) on either the state- or federal-court record. I The Court first holds that, in determining whether a state-court decision is an unreasonable application of Supreme Court precedent under §2254(d)(1), “review . . . is limited to the record that was before the state court that adjudicated the claim on the merits.” Ante, at 9. New evidence adduced at a federal evidentiary hearing is now irrelevant to determining whether a petitioner has satisfied §2254(d)(1). This holding is unnecessary to pro mote AEDPA’s purposes, and it is inconsistent with the provision’s text, the structure of the statute, and our precedents. A To understand the significance of the majority’s holding, it is important to view the issue in context. AEDPA’s entire structure—which gives state courts the opportunity to decide factual and legal questions in the first instance— ensures that evidentiary hearings in federal habeas pro ceedings are very rare. See N. King, F. Cheesman, & B. Ostrom, Final Technical Report: Habeas Litigation in U. S. District Courts 35–36 (2007) (evidentiary hearings under AEDPA occur in 0.4 percent of noncapital cases and 9.5 percent of capital cases). Even absent the new restric tion created by today’s holding, AEDPA erects multiple hurdles to a state prisoner’s ability to introduce new evi dence in a federal habeas proceeding. First, “[u]nder the exhaustion requirement, a habeas petitioner challenging a state conviction must first at Cite as: 563 U. S. ____ (2011) 3 SOTOMAYOR, J., dissenting tempt to present his claim in state court.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13); see also §2254(b)(1)(A). With certain narrow exceptions, federal courts cannot consider a claim at all, let alone accept new evidence relevant to the claim, if it has not been exhausted in state court.1 The exhaustion requirement thus reserves to state courts the first opportunity to resolve factual disputes relevant to a state prisoner’s claim. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Second, the exhaustion requirement is “complement[ed]” by the standards set forth in §2254(d). Harrington, 562 U. S., at ___ (slip op., at 14). Under this provision, a fed eral court may not grant habeas relief on any “claim that was adjudicated on the merits in State court proceedings” unless the adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un reasonable determination of the facts in light of the evidence presented in the State court proceeding.” These standards “control whether to grant habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Accord ingly, we have said, if the factual allegations a petitioner seeks to prove at an evidentiary hearing would not satisfy these standards, there is no reason for a hearing. See id., at 481. In such a case, the district court may exercise its “discretion to deny an evidentiary hearing.” Ibid.; see also infra, at 13–14. This approach makes eminent sense: If district courts held evidentiary hearings without first —————— 1 Relatedly,a state prisoner must, as a general matter, properly ex haust his federal claims in state court to avoid having his claim de faulted on procedural grounds. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). 4 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting asking whether the evidence the petitioner seeks to pre sent would satisfy AEDPA’s demanding standards, they would needlessly prolong federal habeas proceedings. Third, even when a petitioner seeks to introduce new evidence that would entitle him to relief, AEDPA prohibits him from doing so, except in a narrow range of cases, unless he “made a reasonable attempt, in light of the information available at the time, to investigate and pur sue claims in state court.” Williams v. Taylor, 529 U.S. 420, 435 (2000) (Michael Williams). Thus, §2254(e)(2) provides: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— “(A) the claim relies on— “(i) a new rule of constitutional law, made retroac tive to cases on collateral review by the Supreme Court, that was previously unavailable; or “(ii) a factual predicate that could not have been previously discovered through the exercise of due dili gence; and “(B) the facts underlying the claim would be suffi cient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” In Michael Williams, we construed the opening clause of this provision—which triggers the bar on evidentiary hearings—to apply when “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”2 Id., at 432. AEDPA thus bars an —————— 2 Section 2254(e)(2) also governs an attempt to obtain relief “based on new evidence without an evidentiary hearing.” Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam) (emphasis deleted). Cite as: 563 U. S. ____ (2011) 5 SOTOMAYOR, J., dissenting evidentiary hearing for a nondiligent petitioner unless the petitioner can satisfy both §§2254(e)(2)(A) and (B), which few petitioners can. Section 2254(e)(2) in this way incen tivizes state petitioners to develop the factual basis of their claims in state court. To the limited extent that federal evidentiary hearings are available under AEDPA, they ensure that petitioners who diligently developed the factual basis of their claims in state court, discovered new evidence after the state court proceeding, and cannot return to state court retain the ability to access the Great Writ. See ante, at 2 (ALITO, J., concurring in part and concurring in judgment). “When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the ‘writ of habeas corpus plays a vital role in protecting constitutional rights.’ ” Holland v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 16) (quoting Slack v. McDaniel, 529 U.S. 473, 483 (2000)). Allowing a petitioner to introduce new evidence at a hearing in the limited circumstance permitted by §2254(e)(2) does not upset the balance that Congress struck in AEDPA be tween the state and federal courts. By construing §2254(d)(1) to do the work of other provisions in AEDPA, the majority has subverted Congress’ careful balance of responsibilities. It has also created unnecessarily a brand new set of procedural complexities that lower courts will have to confront.3 B The majority’s interpretation of §2254(d)(1) finds no support in the provision’s text or the statute’s structure as a whole. 1 Section 2254(d)(1) requires district courts to ask —————— 3 See, e.g., nn. 5, 7, and 13, infra. 6 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting whether a state-court adjudication on the merits “resulted in a decision that was contrary to, or involved an unrea sonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Because this provision uses “backward-looking lan guage”—i.e., past-tense verbs—the majority believes that it limits review to the state-court record. Ante, at 9. But both §§2254(d)(1) and 2254(d)(2) use “backward-looking language,” and §2254(d)(2)—unlike §2254(d)(1)—expressly directs district courts to base their review on “the evidence presented in the State court proceeding.” If use of the past tense were sufficient to indicate Congress’ intent to re strict analysis to the state-court record, the phrase “in light of the evidence presented in the State court proceed ing” in §2254(d)(2) would be superfluous. The majority’s construction of §2254(d)(1) fails to give meaning to Con gress’ decision to include language referring to the evi dence presented to the state court in §2254(d)(2). Cf. Bates v. United States, 522 U.S. 23, 29–30 (1997) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks and brackets omitted)). Ignoring our usual “reluctan[ce] to treat statutory terms as surplusage in any setting,” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted), the majority characterizes the phrase appearing in §2254(d)(2) as mere “clarifying language,” ante, at 12, n. 7. It specu lates that “[t]he omission of clarifying language from §2254(d)(1) just as likely reflects Congress’ belief that such language was unnecessary as it does anything else.” Ante, at 12–13, n. 7. The argument that this phrase is merely “clarifying” might have more force, however, had Congress included this phrase in §2254(d)(1) but not in §2254(d)(2). As between the two provisions, §2254(d)(2)—which re Cite as: 563 U. S. ____ (2011) 7 SOTOMAYOR, J., dissenting quires review of the state court’s “determination of the facts”—more logically depends on the facts presented to the state court. Because this provision needs less clarifi cation on this point than §2254(d)(1), it is all the more telling that Congress included this phrase in §2254(d)(2) but elected to exclude it from §2254(d)(1). Unlike my colleagues in the majority, I refuse to assume that Congress simply engaged in sloppy drafting. The inclusion of this phrase in §2254(d)(2)—coupled with its omission from §2254(d)(2)’s partner provision, §2254(d)(1)—provides strong reason to think that Con gress did not intend for the §2254(d)(1) analysis to be limited categorically to “the evidence presented in the State court proceeding.” 2 The “ ‘broader context of the statute as a whole,’ ” ante, at 9 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)), reinforces this conclusion. In particular, Con gress’ decision to include in AEDPA a provision, §2254(e)(2), that permits federal evidentiary hearings in certain circumstances provides further evidence that Congress did not intend to limit the §2254(d)(1) inquiry to the state-court record in every case. We have long recognized that some diligent habeas petitioners are unable to develop all of the facts support ing their claims in state court.4 As discussed above, in —————— 4 See, e.g., Michael Williams, 529 U.S. 420, 432 (2000) (noting that diligent efforts to develop the facts might be “thwarted, for example, by the conduct of another or by happenstance”); id., at 434 (noting that the prosecution might have “concealed the facts” supporting “a claim which was pursued with diligence”); Townsend v. Sain, 372 U.S. 293, 313 (1963) (requiring federal courts to grant evidentiary hearings when, inter alia, “the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing” or “there is a substantial allegation of newly discovered evidence”), overruled in part on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992). 8 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting enacting AEDPA, Congress generally barred evidentiary hearings for petitioners who did not “exercise diligence in pursuing their claims” in state court. Michael Williams, 529 U.S., at 436; see also §2254(e)(2). Importantly, it did not impose any express limit on evidentiary hearings for petitioners who had been diligent in state court. See id., at 436 (“[T]he statute does not equate prisoners who exer cise diligence in pursuing their claims with those who do not”). For those petitioners, Congress left the decision to hold a hearing “to the sound discretion of district courts.” Landrigan, 550 U.S., at 473. Faced with situations in which a diligent petitioner offers additional evidence in federal court, the courts of appeals have taken two approaches to applying §2254(d)(1). Some courts have held that when a federal court admits new evidence supporting a claim adjudicated on the merits in state court, §2254(d)(1) does not apply at all and the federal court may review the claim de novo. See ante, at 12; Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam); see, e.g., Winston v. Kelly, 592 F.3d 535, 555–556 (CA4 2010). I agree with the majority’s rejection of this approach. See ante, at 12. It would un dermine the comity principles motivating AEDPA to de cline to defer to a state-court adjudication of a claim because the state court, through no fault of its own, lacked all the relevant evidence.5 —————— 5 Of course, §2254(d)(1) only applies when a state court has adjudi cated a claim on the merits. There may be situations in which new evidence supporting a claim adjudicated on the merits gives rise to an altogether different claim. See, e.g., Reply Brief for Petitioner 10–11 (evidence withheld by the prosecutor relating to one claim may give rise to a separate claim under Brady v. Maryland, 373 U.S. 83 (1963)). The majority opinion does not foreclose this possibility. I assume that the majority does not intend to suggest that review is limited to the state-court record when a petitioner’s inability to develop the facts supporting his claim was the fault of the state court itself. See generally Tr. of Oral Arg. in Bell v. Kelly, O. T. 2008, No. 07–1223. Cite as: 563 U. S. ____ (2011) 9 SOTOMAYOR, J., dissenting Other courts of appeals, including the court below, have struck a more considered balance. These courts have held that §2254(d)(1) continues to apply but that new evidence properly presented in a federal hearing is relevant to the reasonableness of the state-court decision. See Pinholster v. Ayers, 590 F.3d 651, 668 (CA9 2009) (en banc) (“If the evidence is admissible under Michael Williams or §2254(e)(2), and if it does not render the petitioner’s claims unexhausted . . . , then it is properly considered in evaluating whether the legal conclusion reached by the state habeas court was a reasonable application of Su preme Court law”); accord, Wilson v. Mazzuca, 570 F.3d 490, 500 (CA2 2009); Pecoraro v. Walls, 286 F.3d 439, 443 (CA7 2002); Valdez v. Cockrell, 274 F.3d 941, 952 (CA5 2001). This approach accommodates the competing goals, reflected in §§2254(d) and 2254(e)(2), of according defer ence to reasonable state-court decisions and preserving the opportunity for diligent petitioners to present evidence to the federal court when they were unable to do so in state court. The majority charts a third, novel course that, so far as I am aware, no court of appeals has adopted: §2254(d)(1) continues to apply when a petitioner has additional evi dence that he was unable to present to the state court, but the district court cannot consider that evidence in deciding whether the petitioner has satisfied §2254(d)(1). The problem with this approach is its potential to bar federal habeas relief for diligent habeas petitioners who cannot present new evidence to a state court. Consider, for example, a petitioner who diligently at tempted in state court to develop the factual basis of a claim that prosecutors withheld exculpatory witness statements in violation of Brady v. Maryland, 373 U.S. 83 (1963). The state court denied relief on the ground that the withheld evidence then known did not rise to the level of materiality required under Brady. Before the time for 10 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting filing a federal habeas petition has expired, however, a state court orders the State to disclose additional docu ments the petitioner had timely requested under the State’s public records Act. The disclosed documents reveal that the State withheld other exculpatory witness state ments, but state law would not permit the petitioner to present the new evidence in a successive petition.6 Under our precedent, if the petitioner had not presented his Brady claim to the state court at all, his claim would be deemed defaulted and the petitioner could attempt to show cause and prejudice to overcome the default. See Michael Williams, 529 U.S., at 444; see also n. 1, supra. If, however, the new evidence merely bolsters a Brady claim that was adjudicated on the merits in state court, it is unclear how the petitioner can obtain federal habeas relief after today’s holding. What may have been a rea sonable decision on the state-court record may no longer be reasonable in light of the new evidence. See Kyles v. Whitley, 514 U.S. 419, 436 (1995) (materiality of Brady evidence is viewed “collectively, not item by item”). Be cause the state court adjudicated the petitioner’s Brady claim on the merits, §2254(d)(1) would still apply. Yet, under the majority’s interpretation of §2254(d)(1), a fed eral court is now prohibited from considering the new evidence in determining the reasonableness of the state court decision. The majority’s interpretation of §2254(d)(1) thus sug gests the anomalous result that petitioners with new claims based on newly obtained evidence can obtain fed eral habeas relief if they can show cause and prejudice for their default but petitioners with newly obtained evidence supporting a claim adjudicated on the merits in state court —————— 6 See, e.g., id., at 37–38 (statement by counsel for the respondent warden that Virginia law bars all successive habeas applications, even in cases where the petitioner has new evidence). Cite as: 563 U. S. ____ (2011) 11 SOTOMAYOR, J., dissenting cannot obtain federal habeas relief if they cannot first satisfy §2254(d)(1) without the new evidence. That the majority’s interpretation leads to this anomaly is good reason to conclude that its interpretation is wrong. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 7–8 (1992) (“[I]t is . . . irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim”). The majority responds to this anomaly by suggesting that my hypothetical petitioner “may well [have] a new claim.”7 Ante, at 14, n. 10. This suggestion is puzzling. New evidence does not usually give rise to a new claim; it merely provides additional proof of a claim already adjudi cated on the merits.8 The majority presumably means to suggest that the petitioner might be able to obtain federal-court review of his new evidence if he can show cause and prejudice for his failure to present the “new” claim to a state court. In that scenario, however, the federal court would review the purportedly “new” claim de novo. The majority’s approach thus threatens to replace deferential review of new evidence under §2254(d)(1) with de novo review of new evidence in the form of “new” claims.9 Because it is unlikely that Congress intended de novo review—the result suggested by the majority’s opinion—it must have intended for district courts to consider newly discovered evidence in conducting the §2254(d)(1) analysis. —————— 7 The majority declines, however, to provide any guidance to the lower courts on how to distinguish claims adjudicated on the merits from new claims. 8 Even if it can fairly be argued that my hypothetical petitioner has a new claim, the majority fails to explain how a diligent petitioner with new evidence supporting an existing claim can present his new evi dence to a federal court. 9 In this vein, it is the majority’s approach that “would not take seri ously AEDPA’s requirement that federal courts defer to state-court decisions.” Ante, at 10, n. 3. 12 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting The majority’s reading of §2254(d)(1) appears ultimately to rest on its understanding that state courts must have the first opportunity to adjudicate habeas petitioners’ claims. See ante, at 9–10 (“It would be contrary to [AEDPA’s exhaustion requirement] to allow a petitioner to overcome an adverse state-court decision with new evi dence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo”).10 JUSTICE BREYER takes the same position. See ante, at 2 (opinion concurring in part and dissenting in part) (AEDPA is designed “to give the State a first opportunity to consider most matters”). I fully agree that habeas petitioners must attempt to present evidence to state courts in the first instance, as does JUSTICE ALITO, see ante, at 2. Where I disagree with the majority is in my understanding that §2254(e)(2) already accomplishes this result. By reading §2254(d)(1) to do the work of §2254(e)(2), the majority gives §2254(e)(2) an unnaturally cramped reading. As a result, the majority either has foreclosed habeas relief for diligent petitioners who, through no fault of their own, were unable to present exculpatory evidence to the state court that adjudicated their claims or has created a new set of procedural com plexities for the lower courts to navigate to ensure the availability of the Great Writ for diligent petitioners. 3 These considerations lead me to agree with the courts of appeals that have concluded that a federal court should assess the reasonableness of a state court’s application of clearly established federal law under §2254(d)(1) in light of evidence properly admitted in a federal evidentiary hearing. There is nothing “strange” about this approach. —————— 10 Under my reading of §2254(d)(1), of course, the district court would review properly admitted new evidence through the deferential lens of §2254(d)(1), not de novo. Cite as: 563 U. S. ____ (2011) 13 SOTOMAYOR, J., dissenting Ante, at 10. Under §2254(d)(1), federal courts routinely engage in analysis that the state court itself might never have conducted or did not conduct. For example, when a state court summarily denies a claim without explanation, as the California Supreme Court did here, district courts must deny habeas relief pursuant to §2254(d)(1) so long as “there is any reasonable argument” supporting the denial of the petitioner’s claim. Harrington, 562 U. S., at ___ (slip op., at 16). We likewise ask whether a state-court decision unreasonably applied clearly established federal law when the state court issued a reasoned decision but failed to cite federal law altogether. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Determining whether a state court could reasonably have denied a petitioner relief in light of newly discovered evidence is not so different than determining whether there is any reasonable basis for a state court’s unreasoned decision. Admittedly, the text of §2254(d)(1), standing alone, does not compel either reading of that provision. But constru ing §2254(d)(1) to permit consideration of evidence prop erly introduced in federal court best accords with the text of §2254(d)(2) and AEDPA’s structure as a whole. By interpreting §2254(d)(1) to prevent nondiligent petitioners from gaming the system—the very purpose of §2254(e)(2)—the majority potentially has put habeas relief out of reach for diligent petitioners with meritorious claims based on new evidence. C The majority claims that its holding is “consistent” with our case law. Ante, at 10. Quite the opposite is true: Our cases reflect our previous understanding that evidence properly admitted pursuant to §2254(e)(2) is relevant to the §2254(d)(1) analysis. In Landrigan, JUSTICE THOMAS, the author of today’s opinion, confirmed this understanding of the interplay 14 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting between §§2254(d)(1) and 2254(e)(2). As noted above, we admonished district courts to consider whether a peti tioner’s allegations, if proved true, would satisfy §2254(d) in determining whether to grant a hearing. After high lighting the deference owed to state courts under §§2254(d) and 2254(e)(1), we stated: “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s fac tual allegations, which, if true, would entitle the applicant to federal habeas relief. Because the defer ential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evi dentiary hearing is appropriate.” 550 U.S., at 474 (ci tation omitted). By instructing district courts to consider the §2254(d) standards in deciding whether to grant a hearing, we must have understood that the evidence admitted at a hearing could be considered in the §2254(d)(1) analysis. See Brief for American Civil Liberties Union as Amicus Curiae 9 (“The whole point of Landrigan’s admonition that the court must decide whether to hold a hearing with an eye on §2254(d)(1) is that some proffers of evidence will not justify federal fact-finding in view of §2254(d)(1), but that other proffers of proof will”).11 In Michael Williams, the warden argued that §2254(e)(2) bars an evidentiary hearing whenever a peti tioner was unable to develop the factual record in state court, “whether or not through his own fault or neglect.” —————— 11 The majority overlooks this aspect of Landrigan. It quotes Landri gan’s observation that “if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing,” 550 U.S., at 474, but that statement has no bearing on the question decided by the Court today. Cite as: 563 U. S. ____ (2011) 15 SOTOMAYOR, J., dissenting 529 U.S., at 430. Under the warden’s argument, a peti tioner who did not develop the record in state court, what ever the reason, would be barred from presenting evidence to the federal court. In rejecting that argument, we observed: “A prisoner who developed his claim in state court and can prove the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly es tablished Federal law, as determined by the Supreme Court of the United States,’ is not barred from obtain ing relief by §2254(d)(1). If the opening clause of §2254(e)(2) covers a request for an evidentiary hear ing on a claim which was pursued with diligence but remained undeveloped in state court because, for in stance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy §2254(d).” Id., at 434 (citation omitted; emphasis added). A petitioner in the latter situation would almost certainly be unable to “satisfy §2254(d)” without introducing the concealed facts in federal court. This passage thus reflects our understanding that, in some circumstances, a peti tioner might need an evidentiary hearing in federal court to prove the facts necessary to satisfy §2254(d). To avoid foreclosing habeas relief for such petitioners, we concluded that §2254(e)(2) could not bear the warden’s “harsh read ing,” which essentially would have held petitioners strictly at fault for their inability to develop the facts in state court. Ibid. The majority today gives an equally “harsh reading” to §2254(d)(1) to achieve the result we rejected in Michael Williams.12 —————— 12 The majority claims that Michael Williams supports its reading of §2254(d)(1). With respect to one claim asserted by the petitioner, we observed that “[t]he Court of Appeals rejected this claim on the merits 16 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting None of the other cases cited by the majority supports its result. In Williams v. Taylor, 529 U.S. 362 (2000) (Terry Williams), we interpreted §2254(d)(1) to ask whether the state-court decision “identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id., at 413. However, we had no reason to decide whether the §2254(d)(1) inquiry was limited to the state-court record, as the District Court did not hold an evidentiary hearing in that case. See id., at 372. In Holland v. Jackson, we stated that “we have made clear that whether a state court’s decision was unreason able must be assessed in light of the record the court had before it.” 542 U.S., at 652. In the next sentence, how ever, we observed that the evidence at issue “could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court.” Id., at 652–653. We proceeded to find that the evidence was not properly ad mitted under §2254(e)(2) before concluding that the Court of Appeals had erred in its §2254(d)(1) analysis. Id., at 653; see also Bradshaw v. Richey, 546 U.S. 74, 79 (2005) (per curiam). In sum, our cases reflect our recognition that it is some times appropriate to consider new evidence in deciding whether a petitioner can satisfy §2254(d)(1). In reading our precedent to require the opposite conclusion, the ma jority disregards the concerns that motivated our decision in Michael Williams: Some petitioners, even if diligent, —————— under §2254(d)(1), so it is unnecessary to reach the question whether §2254(e)(2) would permit a hearing on the claim.” 529 U.S., at 444. That statement merely reflects the fact that the Court of Appeals had rejected that claim under §2254(d)(1) without considering whether the petitioner was entitled to a hearing because the petitioner had not requested a hearing on that claim. See Williams v. Taylor, 189 F.3d 421, 425, 428–429 (CA4 1999). Cite as: 563 U. S. ____ (2011) 17 SOTOMAYOR, J., dissenting may be unable to develop the factual record in state court through no fault of their own. We should not interpret §2254(d)(1) to foreclose these diligent petitioners from accessing the Great Writ when the state court will not consider the new evidence and could not reasonably have reached the same conclusion with the new evidence before it. II I also disagree with the Court’s conclusion that the Court of Appeals erred in holding that Pinholster had satisfied §2254(d)(1) on the basis of the state-court record.13 A The majority omits critical details relating to the per formance of Pinholster’s trial counsel, the mitigating evidence they failed to discover, and the history of these proceedings. I therefore highlight several aspects of the facts and history of this case. —————— 13 I agree with the majority that the state-court record in this case consists of “the ‘allegations of [the] habeas corpus petition . . . and . . . any matter of record pertaining to the case.’ ” Ante, at 16, n. 12 (quot ing In re Hochberg, 2 Cal. 3d 870, 874, n. 2, 471 P.2d 1, 3–4, n. 2 (1970); some internal quotation marks omitted). The majority does not decide which of the two state-court decisions should be reviewed. See ante, at 15, n. 11. One amicus argues that Pinholster must prove that both state-court decisions involved an unreasonable application of law. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 26. This argument is based on amicus’ understanding that the California Supreme Court rejected the second petition as successive and, alternatively, on the merits. The State has not argued, however, that the second ruling rests on a procedural ground. See ante, at 6, n. 2. When a state court denies two petitions on the merits and the difference between the petitions is that the second petition contains additional evidence supporting the petitioner’s claim, I see no reason why the petitioner must independently show that the first decision was unreasonable. 18 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting 1 After the jury returned a guilty verdict, the court in structed the jury to return six days later for the penalty phase. This prompted discussion at sidebar regarding whether the State had provided notice of its intent to offer aggravating evidence. Pinholster’s court-appointed attor ney, Wilbur Dettmar, argued that the State should be precluded from offering aggravating evidence: “I am not presently prepared to offer anything by way of mitigation. If I was going to proceed on mitigation, the people would have the right to rebuttal with or without notice. “I took the position, since the people had not given notice, I had not prepared any evidence by way of miti gation. I would submit it on that basis.” 52 Re porter’s Tr. 7250 (hereinafter Tr.) (emphasis added). Undoubtedly anticipating that counsel might need addi tional time to prepare an adequate mitigation defense, the court asked Dettmar whether a continuance would be helpful in the event it ruled against him. He declined the offer on the spot, stating: “I think we would probably still go forward on Monday. Clearly the one person that comes to mind is the defendant’s mother. How much beyond that I don’t know. I don’t think the pa[ss]age of time would make a great deal of difference.” Id., at 7257–7258. After hearing testimony, the court denied Pinholster’s motion to preclude aggravating evidence. At the penalty phase, defense counsel called only one witness: Pinholster’s mother, Burnice Brashear. Brashear testified that Pinholster “never really wanted for anything at home too much” and “had everything normally materi alwise that most people have.” Id., at 7395. She said that Pinholster was “different” from his siblings, whom she characterized as “basically very good children.” Id., at 7401–7402. Pinholster, she said, had a “friendly” relation Cite as: 563 U. S. ____ (2011) 19 SOTOMAYOR, J., dissenting ship with his stepfather, although his stepfather “some times would lose his temper” with Pinholster, who “had a mind of his own.” Id., at 7392–7393; see also id., at 7293 (stating that his stepfather was “at times” “abusive or near abusive”). Brashear provided brief testimony regarding Pinhol ster’s childhood. She described two car accidents—one when she ran over him in the driveway and one when he went through the windshield. Id., at 7389–7391. She stated that he started failing school in the first grade and that the school eventually “sent him to [an] educationally handicapped class.” Id., at 7393–7394. When Pinholster was 10, a psychologist recommended placing him in a mental institution, but she “didn’t think he was that far gone.” Id., at 7395. A few years later, she testified, he spent six months in a state hospital for emotionally handi capped children. Id., at 7402. According to Brashear, Pinholster had suffered from epilepsy since age 18, when he was beaten in jail. Id., at 7397. She said that her family doctor, Dr. Dubin, had given him medication to treat the epilepsy. Ibid. Brashear also suggested that Pinholster did not have long to live, stating that he had “a chip in his head floating around” and that “they don’t think—he won’t be here very much longer anyway.”14 Ibid. In closing argument, the prosecutor ridiculed Brashear’s testimony. See 53 id., at 7442 (“She said his stepfather disciplined him. So what? I am sure you have all disci plined your children. I was disciplined myself”); ibid. (“He was run over by a car when he was three years old. That’s very unfortunate. There is no evidence of any brain dam age. A lot of children get dropped, fall from their cribs or —————— 14 The judge instructed the jury to disregard this testimony upon motion by the prosecutor, but the prosecutor then discussed the testi mony in her closing argument. See infra, at 33–34. 20 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting whatever”); id., at 7444–7445 (“I submit to you that if this defendant truly had epilepsy, . . . a doctor would have been brought in to tell you that. Medical records, something”). The prosecutor also highlighted Brashear’s testimony about Pinholster’s stable home environment, arguing, “He came from a good home. You heard that he was not a deprived child. Had many things going for him, probably more than many children.” Id., at 7442. Notwithstanding the meager mitigation case presented by Pinholster’s counsel, it took the jury two days to reach a decision to sentence Pinholster to death. His counsel later moved to modify the sentence to life imprisonment. In denying the motion, the trial judge stated, “The evidence which the defense offered concerning the defendant’s extenuation was merely some testimony from his mother that was not persuasive. His mother did not, in the court’s opinion, present any evidence which the court would find to be a moral justification or extenuation for his conduct. No witness supplied such evidence.” 54 id., at 7514. 2 After his conviction and sentence were affirmed on appeal, Pinholster filed a habeas petition in the California Supreme Court alleging, among other things, that his counsel had “unreasonably failed to investigate, prepare and present available mitigating evidence during penalty phase.” Record ER–103. Pinholster’s state-court petition included 121 exhibits. In a series of declarations, his trial attorney Harry Brainard (who had by then been disbarred) confirmed what Dettmar had forthrightly told the trial court: Brainard and Dettmar neither expected nor prepared to present mitigation evidence.15 See id., at ER–333 (“Mr. —————— 15 By the time of Pinholster’s state-court habeas petition, Dettmar was deceased. Cite as: 563 U. S. ____ (2011) 21 SOTOMAYOR, J., dissenting Dettmar and I did not prepare a case in mitigation. We felt there would be no penalty phase hearing inasmuch as we did not receive written notice of evidence in aggrava tion pursuant to Penal Code §190.3”). Brainard further confirmed what was apparent from the mitigation case they eventually put on: They conducted virtually no miti gation investigation. See id., at ER–182 (“I have no recol lection of Mr. Dettmar having secured or reviewed any of Scott’s medical records, nor did I see any of Scott’s medical records. So far as I recollect, neither Mr. Dettmar nor myself interviewed any of Scott’s previous medical provid ers”); id., at ER–183 (“I do not recall interviewing or at tempting to interview Scott’s family members or any other persons regarding penalty phase testimony, except Mrs. Brashears [sic]”); ibid. (“I have no recollection of seeing or attempting to secure Scott’s school records, juvenile re cords, medical records, or records of prior placements”); ibid. (“I have no recollection of interviewing or attempting to interview Scott’s former school teachers, counselors, or juvenile officers”).16 Statements by relatives (none of whom trial counsel had attempted to interview regarding Pinholster’s background) and documentary evidence revealed that the picture of Pinholster’s family life painted by his mother at trial was false. Pinholster was “raised in chaos and poverty.” Id., at ER–312. A relative remembered seeing the children mix together flour and water in an attempt to get some thing to eat. Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board. “There was so much violence in [the] home” that Pinholster’s brother “dreaded coming home each day.” Id., at ER–313. Pinholster’s half sister was removed from the home as a result of a beating by his stepfather. —————— 16 Counsel’s billing records, which were before the California Supreme Court as part of the trial record, confirmed Brainard’s recollection. 22 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting Documentary evidence showed, directly contrary to Brashear’s trial testimony, that Pinholster’s siblings had very troubled pasts. Pinholster’s elder brother was ar rested for armed burglary, robbery, and forcible rape of a 14-year-old with a deadly weapon. While in custody, he was diagnosed as “catatonic-like” and “acutely psychotic, probably suffering some type of schizophrenia.” Id., at ER–219, ER–224. He later committed suicide.17 Pinhol ster’s half sister, a recovering alcoholic, had been made a ward of the juvenile court for prostitution and forcible sexual battery on a 14-year-old. Pinholster’s petition and exhibits described a long his tory of emotional disturbance and neurological problems. A former schoolteacher stated that, as a child, Pinholster “seemed incapable of relating either to his peers or to adults,” that “[i]t was even hard to maintain eye contact with him,” and that “[h]is hyperactivity was so extreme that [she] formed the opinion it probably had an organic base.” Id., at ER–231. School records revealed that he “talk[ed] to self continuously,” had “many grimaces,” fought in his sleep, and could “control self for only 1 hour per day.” Id., at ER–230, ER–233. He “show[ed] progres sive deterioration each semester since Kindergarten.” Id., at ER–230. School officials recommended placement in a school for emotionally handicapped students and referral to a neurologist. At age nine, he had an abnormal EEG, revealing “an organic basis for his behavior.” Id., at ER– 157, ER–234. Just months before the homicides, a doctor recommended placement in the Hope Psychiatric Insti tute, but this did not occur. This and other evidence attached to the petition was —————— 17 Accordingto Pinholster’s half sister, “The death of our brother Al vin was a severe emotional blow to me and to Scott. I believed Scott’s substance abuse (heroin) arose following and as a result of Alvin’s death.” Record ER–314. Cite as: 563 U. S. ____ (2011) 23 SOTOMAYOR, J., dissenting summarized in a declaration by Dr. George Woods. Dr. Woods opined that Pinholster “suffer[ed] from severe and long standing seizure disorders,” id., at ER–156, that his childhood head traumas “may have been the precipitating factors for [his] seizure disorder,” id., at ER–157, and that he suffered from bipolar mood disorder. He pointed to trial testimony that immediately before the burglary on the night of the homicides, Pinholster announced that he “ ‘ha[d] a message from God’ ”—which Dr. Woods believed to reflect “[a]uditory hallucinations” and “severe psycho sis.” Id., at ER–169. He concluded that at the time of the homicides Pinholster “was suffering from bipolar mood disorder with psychotic ideation and was suffering a com plex partial seizure.” Id., at ER–170. He also observed that Pinholster’s “grossly dysfunctional family, the abuse he received as a child, his history of suffering from sub stantial seizure and mood disorders, his frequently un treated psychiatric and psychological disabilities and his educational handicaps were relevant circumstances which would extenuate the gravity of the crime.” Id., at ER–171. On the basis of Pinholster’s submission, the California Supreme Court denied Pinholster’s ineffective-assistance of-counsel claim. Pinholster then filed a habeas petition in Federal Dis trict Court. He included an additional exhibit: a declara tion by Dr. John Stalberg, a psychiatrist who had hastily examined Pinholster and produced a two-page report in the middle of the original trial.18 After reviewing the new material collected by Pinholster’s habeas counsel, Dr. Stalberg stated that the available evidence showed a —————— 18 Counsel had arranged for Dr. Stalberg to examine Pinholster in the middle of his original trial. The only documents they provided to him were police reports relating to the case and a 1978 probation report. In a two-page report that focused primarily on Pinholster’s mental state at the time of the offenses, Dr. Stalberg concluded that Pinholster had “psychopathic personality traits.” Id., at ER–187. 24 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting familial history of “severe psychiatric disorders,” “a history of seizure disorders of unknown etiology,” “repeated head traumas,” “an abnormal EEG,” and “evidence of mental disturbance during Mr. Pinholster’s childhood and some degree of brain damage.” Id., at ER–493. He also opined that “there [was] voluminous mitigating evidence which includes a childhood of physical abuse, emotional neglect, and a family history of mental illness and criminal behav ior.” Id., at ER–494. The District Court stayed the federal proceedings while Pinholster sought state-court review of claims the District Court deemed unexhausted. Pinholster’s second habeas submission to the California Supreme Court included Stalberg’s declaration. That court summarily denied Pinholster’s petition on the merits. Pinholster returned to Federal District Court and filed an amended petition. After an evidentiary hearing, the District Court concluded that Pinholster had demon strated deficient performance and prejudice under Strick land.19 The Ninth Circuit, sitting en banc, affirmed. 590 F.3d 651. B As the majority notes, Pinholster’s claim arises under Strickland v. Washington. “The benchmark for judging any claim of ineffectiveness [under Strickland] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U. S., —————— 19 The District Court based its decision on the evidence adduced at an evidentiary hearing. The District Court did not apply 28 U.S. C. §2254(d) because it thought, erroneously, that the California Supreme Court had not adjudicated Pinholster’s claim on the merits. App. to Pet. for Cert. 257. For the reasons I discuss, however, the District Court could have concluded that Pinholster had satisfied §2254(d)(1) on the basis of the state-court record alone. Cite as: 563 U. S. ____ (2011) 25 SOTOMAYOR, J., dissenting at 686. To satisfy this benchmark, a defendant must show both that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Id., at 687. When §2254(d)(1) applies, the question is whether “ ‘fair minded jurists could disagree’ on the correctness of the state court’s decision.” Harrington, 562 U. S., at ___ (slip op., at 11) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). When the state court rejected a Strickland claim on the pleadings assuming the allegations to be true, as here, see ante, at 16, n. 12, the federal court must ask whether “there is any reasonable argument” support ing the state court’s conclusion that the petitioner’s allega tions did not state a claim, Harrington, 562 U. S., at ___ (slip op., at 16). This standard is “difficult,” but not im possible, “to meet.” Id., at ___ (slip op., at 12). This case is one in which fairminded jurists could not disagree that the state court erred. C Under Strickland, “the defendant must show that coun sel’s representation fell below an objective standard of reasonableness,” measured according to “prevailing pro fessional norms.” 466 U.S., at 688. We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id., at 689. When §2254(d) applies, federal-court review is “ ‘doubly’ ” deferential. Harrington, 562 U. S., at ___ (slip op., at 16) (quoting Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 11)). In the present AEDPA posture, “[t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Har rington, 562 U. S., at ___ (slip op., at 16). Here, there is none. The majority surmises that counsel decided on a strat egy “to get the prosecution’s aggravation witnesses ex 26 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting cluded for lack of notice, and if that failed, to put on Pin holster’s mother.” Ante, at 19. This is the sort of “ ‘post hoc rationalization’ for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions” that courts cannot indulge. Harrington, 562 U. S., at ___ (slip op., at 20) (quoting Wiggins v. Smith, 539 U.S. 510, 526–527 (2003)). The majority’s explanation for counsel’s conduct contradicts the best available evidence of counsel’s actions: Dettmar’s frank, contemporaneous statement to the trial judge that he “had not prepared any evidence by way of mitigation.” 52 Tr. 7250. The majority’s conjecture that counsel had in fact prepared a mitigation defense, based primarily on isolated entries in counsel’s billing records, requires it to assume that Dettmar was lying to the trial judge.20 In any event, even if Pinholster’s counsel had a strategic reason for their actions, that would not automatically render their actions reasonable. For example, had counsel decided their best option was to move to exclude the ag gravating evidence, it would have been unreasonable to forgo a mitigation investigation on the hope that the mo tion would be granted. With a client’s life at stake, it would “flou[t] prudence,” Rompilla v. Beard, 545 U.S. 374, —————— 20 The majority misleadingly cites entries showing that counsel were preparing Brashear’s penalty phase testimony after counsel learned that the State intended to present aggravation evidence. The cited entries predating that event show only that counsel conducted about one day’s worth of investigation—consisting of talking to Brashear and researching epilepsy—two months before the penalty phase. See 3 Clerk’s Tr. 798 (1.5-hour phone call to Brashear on Jan. 13); id., at 864, 869 (3-hour meeting with Brashear regarding “childhood problems” on Feb. 23); id., at 869 (3.5 hours for “[r]esearch re; epilepsy and conf. with nurse” on Feb. 25). There is no evidence in the records that counsel actually planned to present mitigating evidence. Indeed, their complete failure to follow up on any of the information they learned in their minimal investigation only confirms that they were not planning to present mitigating evidence. See infra, at 29–31. Cite as: 563 U. S. ____ (2011) 27 SOTOMAYOR, J., dissenting 389 (2005), for an attorney to rely on the possibility that the court might preclude aggravating evidence pursuant to a “legal technicality” without any backup plan in place in case the court denied the motion, ante, at 19. No rea sonable attorney would pursue such a risky strategy. I do not understand the majority to suggest otherwise. Instead, I understand the majority’s conclusion that counsel’s actions were reasonable to rest on its belief that they did have a backup plan: a family-sympathy defense. In reaching this conclusion, the majority commits the same Strickland error that we corrected, applying §2254(d)(1), in Wiggins: It holds a purportedly “tactical judgment” to be reasonable without assessing “the ade quacy of the investigatio[n] supporting [that] judgmen[t],” 539 U.S., at 521. As we stated in Strickland: “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are vir tually unchallengeable; and strategic choices made af ter less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to inves tigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” 466 U.S., at 690– 691. We have repeatedly applied this principle since Strick land. See Sears v. Upton, 561 U. S. ___, ___ (2010) (per curiam) (slip op., at 9); Porter v. McCollum, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 10); Wiggins, 539 U. S., 28 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting at 527; Terry Williams, 529 U.S., at 396.21 As these cases make clear, the prevailing professional norms at the time of Pinholster’s trial required his attor neys to “conduct a thorough investigation of the defen dant’s background,” ibid. (citing 1 ABA Standards for Criminal Justice 4–4.1, commentary, p. 4–55 (2d ed. 1980) (hereinafter ABA Standards)), or “to make a reasonable decision that makes particular investigations unneces sary,” Strickland, 466 U.S., at 691.22 “In judging the defense’s investigation, as in applying Strickland gener ally, hindsight is discounted by pegging adequacy to ‘coun sel’s perspective at the time’ investigative decisions are made, and by giving a ‘heavy measure of deference to counsel’s judgments.’ ” Rompilla, 545 U.S., at 381 (quot ing Strickland, 466 U.S., at 689, 691; citation omitted). In some cases, “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla, 545 U.S., at 383; see, e.g., Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 8); Burger v. Kemp, 483 U.S. 776, 794–795 (1987). In other cases, however, Strickland requires fur ther investigation. —————— 21 I do not doubt that a decision to present a family-sympathy mitiga tion defense might be consistent “with the standard of professional competence in capital cases that prevailed in Los Angeles in 1984” in some cases. Ante, at 24. My point is that even if counsel made a strategic decision to proceed with such a defense, that decision was unreasonable because it was based on an unreasonably incomplete investigation. 22 See also 1 ABA Standards 4–4.1, commentary, at 4–55 (“Informa tion concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself”). As we recognized in Strickland, the ABA Standards, though not dispositive, “are guides to determining what is reasonable.” 466 U.S., at 688; see also Wiggins v. Smith, 539 U.S. 510, 524 (2003). Cite as: 563 U. S. ____ (2011) 29 SOTOMAYOR, J., dissenting Wiggins is illustrative of the competence we have re quired of counsel in a capital case. There, counsel’s in vestigation was limited to three sources: psychological testing, a presentencing report, and Department of Social Services records. 539 U.S., at 523–524. The records revealed that the petitioner’s mother was an alcoholic, that he displayed emotional difficulties in foster care, that he was frequently absent from school, and that on one occasion, his mother left him alone for days without food. Id., at 525. In these circumstances, we concluded, “any reasonably competent attorney would have realized that pursuing these leads was necessary to making an in formed choice among possible defenses.” Ibid. Accord ingly, we held, the state court’s assumption that counsel’s investigation was adequate was an unreasonable applica tion of Strickland. 539 U.S., at 528.23 This case is remarkably similar to Wiggins. As the majority reads the record, counsel’s mitigation investiga tion consisted of talking to Pinholster’s mother, consulting with Dr. Stalberg, and researching epilepsy.24 Ante, at 20. What little information counsel gleaned from this “rudi mentary” investigation, Wiggins, 539 U.S., at 524, would have led any reasonable attorney “to investigate further,” id., at 527. Counsel learned from Pinholster’s mother that he attended a class for educationally handicapped chil dren, that a psychologist had recommended placing him in a mental institution, and that he spent time in a state —————— 23 As the majority notes, see ante, at 24–25, Wiggins’ trial counsel acknowledged that the investigation he conducted was inconsistent with standard practice in Maryland. See 539 U.S., at 524. We inde pendently concluded, however, that the investigation “was also unrea sonable in light of what counsel actually discovered in the . . . records.” Id., at 525 (emphasis added). 24 The majority also posits that Brainard likely spent time preparing Pinholster’s brother Terry. However, Terry averred in a declaration that Pinholster’s attorneys “never asked [him] any questions relating to Scott’s background or [their] family history.” Record ER–313. 30 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting hospital for emotionally handicapped children. They knew that Pinholster had been diagnosed with epilepsy. “[A]ny reasonably competent attorney would have real ized that pursuing” the leads suggested by this informa tion “was necessary to making an informed choice among possible defenses.” Id., at 525; see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (“[E]vidence about the defen dant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvan taged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” (internal quotation marks omitted)). Yet counsel made no effort to obtain the readily available evidence suggested by the information they learned, such as Pin holster’s schooling or medical records, or to contact Pinholster’s school authorities. They did not contact Dr. Dubin or the many other health-care providers who had treated Pinholster. Put simply, counsel “failed to act while potentially powerful mitigating evidence stared them in the face.” Bobby, 558 U. S., at ___ (slip op., at 8) (citing Wiggins, 539 U.S., at 525). The “impediments” facing counsel, ante, at 21, did not justify their minimal investigation. It is true that Pinhol ster was “an unsympathetic client.” Ibid. But this fact compounds, rather than excuses, counsel’s deficiency in ignoring the glaring avenues of investigation that could explain why Pinholster was the way he was. See Sears, 561 U. S., at ___ (slip op., at 7) (“This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his hor rendous acts—especially in light of his purportedly stable upbringing”). Nor can Dr. Stalberg’s two-page report, which was based on a very limited record and focused primarily on Pinholster’s mental state at the time of the homicides, excuse counsel’s failure to investigate the Cite as: 563 U. S. ____ (2011) 31 SOTOMAYOR, J., dissenting broader range of potential mitigating circumstances. “The record of the actual sentencing proceedings under scores the unreasonableness of counsel’s conduct by suggesting that their failure to investigate thoroughly re sulted from inattention, not reasoned strategic judgment.” Wiggins, 539 U.S., at 526. Dettmar told the trial judge that he was unprepared to present any mitigation evi dence. The mitigation case that counsel eventually put on can be described, at best, as “halfhearted.” Ibid. Counsel made no effort to bolster Brashear’s self-interested testi mony with school or medical records, as the prosecutor effectively emphasized in closing argument. And because they did not pursue obvious leads, they failed to recognize that Brashear’s testimony painting Pinholster as the bad apple in a normal, nondeprived family was false. In denying Pinholster’s claim, the California Supreme Court necessarily overlooked Strickland’s clearly estab lished admonition that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations.” 466 U.S., at 690–691. As in Wiggins, in light of the information available to Pinholster’s counsel, it is plain that “reasonable professional judgments” could not have supported their woefully inadequate investigation.25 466 U.S., at 691. Accordingly, the California Supreme Court could not reasonably have concluded that Pinholster —————— 25 The majority chastises the Court of Appeals for “attributing strict rules to this Court’s recent case law.” Ante, at 24. I agree that courts should not interpret our cases to prescribe strict rules regarding the required scope of mitigation investigations. See Rompilla v. Beard, 545 U.S. 374, 394 (2005) (O’Connor, J., concurring) (noting “our longstand ing case-by-case approach to determining whether an attorney’s per formance was unconstitutionally deficient under Strickland”). The Ninth Circuit, however, did no such thing. It appropriately gave thoughtful consideration to the guideposts contained in these cases, just as we have previously done. See, e.g., Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 8). 32 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting had failed to allege that his counsel’s investigation was inadequate under Strickland. D The majority also concludes that the California Supreme Court could reasonably have concluded that Pinholster did not state a claim of prejudice. This conclusion, in light of the overwhelming mitigating evidence that was not before the jury, is wrong. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the pro ceeding would have been different.” Id., at 694. When a habeas petitioner challenges a death sentence, “the ques tion is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circum stances did not warrant death.” Id., at 695. This inquiry requires evaluating “the totality of the available mitiga tion evidence—both that adduced at trial, and the evi dence adduced in the habeas proceeding—in reweighing it against the evidence in aggravation.” Terry Williams, 529 U.S., at 397–398. The ultimate question in this case is whether, taking into account all the mitigating and aggra vating evidence, “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U.S., at 537; see Cal. Penal Code Ann. §190.4(b) (West 2008) (requiring a unanimous jury verdict to impose a death sentence). 1 Like the majority, I first consider the aggravating and mitigating evidence presented at trial. By virtue of its verdict in the guilt phase, the jury had already concluded that Pinholster had stabbed and killed the victims. As the majority states, the jury saw Pinholster “revel” in his history of burglaries during the guilt phase. Ante, at 26. Cite as: 563 U. S. ____ (2011) 33 SOTOMAYOR, J., dissenting The jury heard evidence of Pinholster’s violent tendencies: He had kidnapped someone with a knife, cut a person in the arm with a razor, and had a history of hitting and kicking people. He threatened to kill the State’s lead witness. And he had an extensive disciplinary record in jail. Brashear offered brief testimony that was apparently intended to be mitigating. See supra, at 19–20; see also ante, at 27–28.26 However, as the prosecutor argued, Brashear was not a neutral witness. See 53 Tr. 7441 (“A mother clearly loves her son, ladies and gentlemen. Clearly not the most unbiased witness in the world”). Notwithstanding Brashear’s obvious self-interest, counsel failed to offer readily available, objective evidence that would have substantiated and expanded on her testimony. Their failure to do so allowed the prosecutor to belittle her testimony in closing argument. See supra, at 19–20. And Brashear’s statement that Pinholster would not be alive much longer because he had “a chip in his head floating around,” 52 Tr. 7397, could only have undermined her credibility, as the prosecutor urged, see 53 id., at 7447 (“Does she want you to believe sometime before he got to —————— 26 The majority mischaracterizes several aspects of Brashear’s testi mony. Although Brashear testified that the family “didn’t have lots of money,” she followed up that comment by stating that Pinholster did not bring friends to the house because “it was too nice a house.” 52 Tr. 7404. The prosecutor did not understand Brashear to have testified that Pinholster’s childhood was deprived. See 53 id., at 7442 (“You heard that he was not a deprived child”). Nor did the California Su preme Court on direct appeal. People v. Pinholster, 1 Cal. 4th 865, 910, 824 P.2d 571, 587 (1992). Brashear did testify that Pinholster’s stepfather tried to “discipline” him and that he was “at times” “abusive or near abusive.” 52 Tr. 7392– 7393. She suggested, however, that Pinholster deserved the “disci pline” he received. See, e.g., id., at 7392 (“Scott was always—he had a mind of his own”). It is unlikely the jury understood Brashear to be suggesting that her husband routinely beat Pinholster. The prosecutor did not come away with this understanding. See 53 id., at 7442. 34 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting country jail some doctor looked in a crystal ball and said, ‘In three years you are going to die’? That’s ridicu lous”). The trial judge was thoroughly unimpressed with Brashear’s testimony. See supra, at 20. Moreover, the evidence presented in Pinholster’s state court petition revealed that Brashear distorted facts in her testimony in ways that undermined Pinholster’s mitiga tion case. As in Sears, 561 U. S., at ___ (slip op., at 3), the prosecutor used Brashear’s testimony that Pinholster came from a good family against him. See 53 Tr. 7442. In sum, counsel presented little in the way of mitigating evidence, and the prosecutor effectively used their half hearted attempt to present a mitigation case to advocate for the death penalty. The jury nonetheless took two days to reach a decision to impose a death sentence. 2 The additional mitigating evidence presented to the California Supreme Court “adds up to a mitigation case that bears no relation” to Brashear’s unsubstantiated testimony. Rompilla, 545 U.S., at 393. Assuming the evidence presented to the California Supreme Court to be true, as that court was required to do, the new mitigating evidence presented to that court would have shown that Pinholster was raised in “chaos and poverty.” Record ER–312. The family home was filled with violence. Pinholster’s siblings had extremely trou bled pasts. There was substantial evidence of “mental disturbance during Mr. Pinholster’s childhood and some degree of brain damage.” Id., at ER–493. Dr. Woods concluded that Pinholster’s aggressive con duct resulted from bipolar mood disorder. Just months before the murders, a doctor had recommended that Pin holster be sent to a psychiatric institute. Dr. Woods also explained that Pinholster’s bizarre behavior before the murders reflected “[a]uditory hallucinations” and “severe Cite as: 563 U. S. ____ (2011) 35 SOTOMAYOR, J., dissenting psychosis.” Id., at ER–169. The available records con firmed that Pinholster suffered from longstanding seizure disorders, which may have been caused by his childhood head injuries. On this record, I do not see how it can be said that “[t]he ‘new’ evidence largely duplicated the mitigation evidence at trial.” Ante, at 29; see Arizona v. Fulminante, 499 U.S. 279, 298–299 (1991) (evidence is not “merely cumulative” if it corroborates other evidence that is “unbelievable” on its own). Brashear’s self-interested testimony was not confirmed with objective evidence, as the prosecutor high lighted. The new evidence would have “destroyed the [relatively] benign conception of [Pinholster’s] upbringing” presented by his mother. Rompilla, 545 U.S., at 391. The jury heard no testimony at all that Pinholster likely suf fered from brain damage or bipolar mood disorder, and counsel offered no evidence to help the jury understand the likely effect of Pinholster’s head injuries or his bizarre behavior on the night of the homicides. The jury heard no testimony recounting the substantial evidence of Pinhol ster’s likely neurological problems. And it heard no medi cal evidence that Pinholster suffered from epilepsy. The majority responds that “much” of Pinholster’s new mitigating evidence “is of questionable mitigating value.” Ante, at 29. By presenting psychiatric testimony, it con tends, “Pinholster would have opened the door to rebuttal by a state expert.” Ibid. But, because the California Supreme Court denied Pinholster’s petition on the plead ings, it had no reason to know what a state expert might have said. Moreover, given the record evidence, it is rea sonably probable that at least one juror would have cred ited his expert. In any event, even if a rebuttal expert testified that Pinholster suffered from antisocial personal ity disorder, this would hardly have come as a surprise to the jury. See ante, at 22 (describing Pinholster as a “psy chotic client whose performance at trial hardly endeared 36 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting him to the jury”). It is for this reason that it was espe cially important for counsel to present the available evi dence to help the jury understand Pinholster. See Sears, 561 U. S., at ___ (slip op., at 6–7). Had counsel conducted an adequate investigation, the judge and jury would have heard credible evidence show ing that Pinholster’s criminal acts and aggressive tenden cies were “attributable to a disadvantaged background, or to emotional and mental problems.” Penry, 492 U.S., at 319 (internal quotation marks omitted). They would have learned that Pinholster had the “ ‘kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.’ ” Porter, 558 U. S., at ___ (slip op., at 12) (quoting Wiggins, 539 U.S., at 535). Applying Strickland, we have repeatedly found “a reasonable probability,” 466 U.S., at 694, that the sentencer would have reached a different result had counsel presented similar evidence. See, e.g., Porter, 558 U. S., at ___ (slip op., at 12–13) (evi dence of the defendant’s childhood history of physical abuse, brain abnormality, limited schooling, and heroic military service); Rompilla, 545 U.S., at 392 (evidence of severe abuse and neglect as a child, as well as brain damage); Wiggins, 539 U.S., at 535 (evidence of the de fendant’s “severe privation and abuse” as a child, home lessness, and “diminished mental capacities”); Terry Williams, 529 U.S., at 398 (evidence of childhood mistreatment and neglect, head injuries, possible organic mental impairments, and borderline mental retardation). The majority does not dispute the similarity between this case and the cited cases. However, it criticizes the Court of Appeals for relying on Rompilla and Terry Wil liams on the ground that we reviewed the prejudice ques tion de novo in those cases. See ante, at 31. I do not read Terry Williams to review the prejudice question de novo.27 —————— 27 Terry Williams held that the state court’s decision was “unreason Cite as: 563 U. S. ____ (2011) 37 SOTOMAYOR, J., dissenting More fundamentally, however, I cannot agree with the premise that “[t]hose cases . . . offer no guidance with respect to whether a state court has unreasonably deter mined that prejudice is lacking.” Ante, at 31 (emphasis deleted). In each of these cases, we did not purport to create new law; we simply applied the same clearly estab lished precedent, Strickland, to a different set of facts. Because these cases illuminate the kinds of mitigation evidence that suffice to establish prejudice under Strick land, they provide useful, but not dispositive, guidance for courts to consider when determining whether a state court has unreasonably applied Strickland. In many cases, a state court presented with additional mitigation evidence will reasonably conclude that there is no “reasonable probability that, but for counsel’s unprofes sional errors, the result of the proceeding would have been different.” Strickland, 466 U.S., at 694. This is not such a case. Admittedly, Pinholster unjustifiably stabbed and killed two people, and his history of violent outbursts and burglaries surely did not endear him to the jury. But the homicides did not appear premeditated. And the State’s aggravation case was no stronger than in Rompilla and Terry Williams. See 545 U.S., at 378, 383 (the defendant committed murder by torture and had a significant history of violent felonies, including a rape); 529 U.S., at 418 (Rehnquist, C. J., concurring in part and dissenting in part) (the defendant had a lifetime of crime, and after the murder he “savagely beat an elderly woman,” set a home on fire, and stabbed a man (internal quotation marks omitted)). Even on the trial record, it took the jury two days to decide on a penalty. The contrast between the “not —————— able in at least two respects”: (1) It applied the wrong legal standard, see 529 U.S., at 397, and (2) it “failed to accord appropriate weight to the body of mitigation evidence available to trial counsel,” id., at 398. We did not purport to conduct de novo review. 38 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting persuasive” mitigation case put on by Pinholster’s counsel, 54 Tr. 7514, and the substantial mitigation evidence at their fingertips was stark. Given these considerations, it is not a foregone conclusion, as the majority deems it, that a juror familiar with his troubled background and psychi atric issues would have reached the same conclusion regarding Pinholster’s culpability. Fairminded jurists could not doubt that, on the record before the California Supreme Court, “there [was] a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U.S., at 537. III The state-court record on its own was more than ade quate to support the Court of Appeals’ conclusion that the California Supreme Court could not reasonably have rejected Pinholster’s Strickland claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion. A At the hearing, Pinholster offered many of the same documents that were before the state habeas court. He also offered his trial attorneys’ billing records, which were before the state habeas court as part of the trial record. Of the seven lay witnesses who testified at the hearing, six had previously executed declarations in support of Pinhol ster’s state-court petition. (The seventh, Pinholster’s uncle, provided testimony cumulative of other testimony.) Two experts testified on Pinholster’s behalf; neither had presented declarations to the state habeas court. The first was Dr. Donald Olson, assistant professor of neurology and neurological sciences and director of the Pediatric Epilepsy Program at Stanford University Medical Center. It appears that Pinholster retained Dr. Olson to rebut the testimony of the expert disclosed by the State in the fed Cite as: 563 U. S. ____ (2011) 39 SOTOMAYOR, J., dissenting eral proceeding. See Decl. of Michael D. Abzug in Support of Stipulated Ex Parte Application to Continue Eviden tiary Hearing and Discovery Cut-Off and to Substitute Counsel in Pinholster v. Calderon, No. CV 95–6240–GLT (CD Cal.), p. 2. Relying in part on Pinholster’s abnormal EEG, Dr. Olson opined that Pinholster’s childhood acci dents “likely result[ed] in brain injury” and that these injuries “conferred a risk of epilepsy.” Record ER–699 to ER–700. He concluded that it was reasonably probable that Pinholster had suffered from partial epilepsy since at least 1968 and had suffered from brain injury since at least 1964. Id., at ER–701. Pinholster’s second expert was Dr. Sophia Vinogradov, associate professor of psychiatry at the University of California, San Francisco. Dr. Vinogradov’s testimony was based on essentially the same facts as Dr. Woods’ and Dr. Stalberg’s state-court declarations. She highlighted Pinholster’s childhood head traumas, history of epilepsy, abusive and neglected upbringing, history of substance abuse, and bizarre behavior on the night of the homicides. She opined that his aggressive behavior resulted from childhood head traumas: “All data indicates that there were severe effects of the two serious head injuries sustained at age 2 and age 3, with evidence for behavioral changes related to dysfunction of frontal cortex: severe attentional and learning problems in childhood, hyperactivity, aggres sivity, impulsivity, social-emotional impairment, sei zure disorder, and explosive dyscontrol.” Id., at ER– 731. She also opined that, right before the homicides, Pinhol ster was in an “apparently hallucinatory state [that] was likely the result of his intoxication with multiple sub stances.” Id., at ER–707 The State presented two experts: Dr. Stalberg, the 40 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting psychiatrist who had examined Pinholster in the middle of trial,28 and Dr. David Rudnick. Although Dr. Stalberg maintained that Pinholster suffered from antisocial per sonality disorder, which was his original diagnosis in the middle of trial, he again emphasized that there was “vo luminous” and “compelling” mitigation evidence that had not previously been made available to him or presented to the jury. Id., at ER–926, ER–953. He stated that conver sations with Pinholster’s family revealed that he and his siblings were “raised like animals, wild animals,” id., at ER–948, and he opined that Pinholster’s upbringing was a risk factor for antisocial personality disorder. See ibid. (Pinholster’s upbringing “would speak volumes, looking at it from a mitigation point of view”). And he agreed that the mitigation evidence presented at trial was “profoundly misleading.” Id., at ER–966. Dr. Rudnick testified that Pinholster suffered from antisocial personality disorder. The State also introduced into evidence the 1978 proba tion report that Pinholster’s counsel had in their posses sion at the time of his trial. The report demonstrated that counsel were aware that Pinholster was in classes for educationally handicapped children, that he was commit ted to a state hospital for emotionally handicapped chil dren, and that he suffered two “severe head injuries.” Id., at SER–243. B Much of the evidence presented at the federal hearing —————— 28 Before the hearing, Dr. Stalberg had opined that Pinholster was “substantially impaired by a bipolar mood disorder operating synergis tically with intoxication and a seizure disorder at the time the crime was committed.” Record ER–587. At a prehearing deposition, however, Dr. Stalberg revised his opinion and stated that he continued to believe that Pinholster suffered from psychopathic personality traits. After the deposition, Pinholster elected to proceed with a different expert, pre sumably in light of Dr. Stalberg’s unexpected change in position. The State then retained Dr. Stalberg as its own expert. Cite as: 563 U. S. ____ (2011) 41 SOTOMAYOR, J., dissenting was duplicative of the evidence submitted to the California Supreme Court. The additional evidence presented at the hearing only confirmed that the California Supreme Court could not reasonably have rejected Pinholster’s claim.29 For example, the probation report presented by the State confirmed that counsel had in their possession in formation that would have led any reasonable attorney “to investigate further.” Wiggins, 539 U.S., at 527. Counsel nevertheless took no action to investigate these leads. Pinholster’s experts opined that his childhood head traumas likely resulted in brain injury and conferred a risk of epilepsy. Although the State presented testimony that Pinholster had antisocial personality disorder, it was not clear error for the District Court to conclude that jurors could have credited Pinholster’s experts. Even the —————— 29 The State argues that the District Court was not entitled to rely on the evidence adduced at the hearing because Pinholster was not dili gent in developing his claims in state court and the hearing was there fore barred by 28 U.S. C. §2254(e)(2). This argument is somewhat imprecise. Pinholster’s allegations in his amended federal petition were “identical” to the allegations he presented to the California Supreme Court, ante, at 6, and he diligently requested a hearing in state court. The State presumably means to argue that Pinholster’s new expert testimony changed “the factual basis” of his claim such that, by the time of the evidentiary hearing, he no longer satisfied §2254(e)(2). However, at oral argument, the State suggested that Pinholster was presenting an altogether new claim in the federal court. See Tr. of Oral Arg. 18. If that is the case, §2254(d)(1) does not apply at all, and the State should be arguing lack of exhaustion or procedural default. I do not understand Pinholster to have presented a new claim to the District Court. In any event, Pinholster satisfied §2254(e)(2) in this case. He made “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Michael Williams, 529 U.S., at 435. His experts relied on the very same facts and evidence. I cannot read §2254(e)(2) to impose a strict requirement that petitioners must use the same experts they presented to the state court. This rule would result in numerous practical problems, for example in the case of the unanticipated death of an expert. 42 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting State’s own expert, Dr. Stalberg, testified to the “volumi nous” mitigation evidence in Pinholster’s case. Record ER– 926. In sum, the evidence confirmed what was already ap parent from the state-court record: Pinholster’s counsel failed to conduct an adequate mitigation investigation, and there was a reasonable probability that at least one juror confronted with the “voluminous” mitigating evi dence counsel should have discovered would have voted to spare Pinholster’s life. Ibid. Accordingly, whether on the basis of the state- or federal-court record, the courts below correctly concluded that Pinholster had shown that the California Supreme Court’s decision reflected an unrea sonable application of Strickland.30 * * * I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of §2254(d)(1) for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present that evidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffective assistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would have discovered. I respectfully dissent. —————— 30 The State’s challenge in this Court is limited to the questions whether the Federal District Court was entitled to consider the addi tional evidence in the §2254(d)(1) analysis and whether Pinholster satisfied §2254(d)(1) on the basis of the state-court record. It has not challenged the District Court’s ultimate conclusion that Pinholster had proved that he was “in custody in violation of the Constitution or laws or treaties of the United States.” §2254(a)

Some habeas petitioners are unable to develop the fac tual basis of their claims in state court through no fault of their own. Congress recognized as much when it en acted the Antiterrorism and Effective Death Penalty Act of 996 (AEDPA), and permitted therein the introduction of new evidence in federal habeas proceed ings in certain limited circumstances. See 2 U.S. C. Under the Court’s novel interpretation of however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner has satisfied threshold obstacle to federal habeas relief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In reading the statute to “compe[l]” this harsh result, ante, at 9, the Court ignores a key textual difference between and 224(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the inquiry. I therefore dissent from the Court’s first holding. I also disagree with the Court that, even if the analysis is limited to the state-court record, respondent Scott Pinholster failed to demonstrate that the California Supreme Court’s decision denying his ineffec 2 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting tive-assistance-of-counsel claim was an unreasonable application of (94). There is no reason for the majority to decide whether the analysis is limited to the state court record because Pinholster satisfied on either the state- or federal-court record. I The Court first holds that, in determining whether a state-court decision is an unreasonable application of Supreme Court precedent under “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Ante, at 9. New evidence adduced at a federal evidentiary hearing is now irrelevant to determining whether a petitioner has satisfied This holding is unnecessary to pro mote AEDPA’s purposes, and it is inconsistent with the provision’s text, the structure of the statute, and our precedents. A To understand the significance of the majority’s holding, it is important to view the issue in context. AEDPA’s entire structure—which gives state courts the opportunity to decide factual and legal questions in the first instance— ensures that evidentiary hearings in federal habeas pro ceedings are very rare. See N. King, F. Cheesman, & B. Ostrom, Final Technical Report: Habeas Litigation in U. S. District Courts 3–36 (evidentiary hearings under AEDPA occur in 0.4 percent of noncapital cases and 9. percent of capital cases). Even absent the new restric tion created by today’s holding, AEDPA erects multiple hurdles to a state prisoner’s ability to introduce new evi dence in a federal habeas proceeding. First, “[u]nder the exhaustion requirement, a habeas petitioner challenging a state conviction must first at Cite as: 63 U. S. (20) 3 SOTOMAYOR, J., dissenting tempt to present his claim in state court.” Harrington v. Richter, 62 U. S. (20) (slip op., at 3); see also With certain narrow exceptions, federal courts cannot consider a claim at all, let alone accept new evidence relevant to the claim, if it has not been exhausted in state court. The exhaustion requirement thus reserves to state courts the first opportunity to resolve factual disputes relevant to a state prisoner’s claim. See Second, the exhaustion requirement is “complement[ed]” by the standards set forth in Harrington, 62 U. S., at (slip op., at 4). Under this provision, a fed eral court may not grant habeas relief on any “claim that was adjudicated on the merits in State court proceedings” unless the adjudication “() resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un reasonable determination of the facts in light of the evidence presented in the State court proceeding.” These standards “control whether to grant habeas relief.” Accord ingly, we have said, if the factual allegations a petitioner seeks to prove at an evidentiary hearing would not satisfy these standards, there is no reason for a hearing. See at 4. In such a case, the district court may exercise its “discretion to deny an evidentiary hearing.” ; see also infra, at 3–4. This approach makes eminent sense: If district courts held evidentiary hearings without first —————— Relatedly,a state prisoner must, as a general matter, properly ex haust his federal claims in state court to avoid having his claim de faulted on procedural grounds. See U.S. 722, 70 (99). 4 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting asking whether the evidence the petitioner seeks to pre sent would satisfy AEDPA’s demanding standards, they would needlessly prolong federal habeas proceedings. Third, even when a petitioner seeks to introduce new evidence that would entitle him to relief, AEDPA prohibits him from doing so, except in a narrow range of cases, unless he “made a reasonable attempt, in light of the information available at the time, to investigate and pur sue claims in state court.” v. Taylor, 29 U.S. 420, 43 (Michael ). Thus, provides: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— “(A) the claim relies on— “(i) a new rule of constitutional law, made retroac tive to cases on collateral review by the Supreme Court, that was previously unavailable; or “(ii) a factual predicate that could not have been previously discovered through the exercise of due dili gence; and “(B) the facts underlying the claim would be suffi cient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” In Michael we construed the opening clause of this provision—which triggers the bar on evidentiary hearings—to apply when “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”2 AEDPA thus bars an —————— 2 Section 224(e)(2) also governs an attempt to obtain relief “based on new evidence without an evidentiary hearing.” 42 U.S. 649, 63 (2004) (emphasis deleted). Cite as: 63 U. S. (20) SOTOMAYOR, J., dissenting evidentiary hearing for a nondiligent petitioner unless the petitioner can satisfy both §(A) and (B), which few petitioners can. Section 224(e)(2) in this way incen tivizes state petitioners to develop the factual basis of their claims in state court. To the limited extent that federal evidentiary hearings are available under AEDPA, they ensure that petitioners who diligently developed the factual basis of their claims in state court, discovered new evidence after the state court proceeding, and cannot return to state court retain the ability to access the Great Writ. See ante, at 2 (ALITO, J., concurring in part and concurring in judgment). “When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the ‘writ of habeas corpus plays a vital role in protecting constitutional rights.’ ” Holland v. Florida, 60 U. S. (200) (slip op., at 6) ). Allowing a petitioner to introduce new evidence at a hearing in the limited circumstance permitted by does not upset the balance that Congress struck in AEDPA be tween the state and federal courts. By construing to do the work of other provisions in AEDPA, the majority has subverted Congress’ careful balance of responsibilities. It has also created unnecessarily a brand new set of procedural complexities that lower courts will have to confront.3 B The majority’s interpretation of finds no support in the provision’s text or the statute’s structure as a whole. Section 224(d)() requires district courts to ask —————— 3 See, e.g., nn. 7, and 3, infra. 6 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting whether a state-court adjudication on the merits “resulted in a decision that was contrary to, or involved an unrea sonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Because this provision uses “backward-looking lan guage”—i.e., past-tense verbs—the majority believes that it limits review to the state-court record. Ante, at 9. But both and 224(d)(2) use “backward-looking language,” and —expressly directs district courts to base their review on “the evidence presented in the State court proceeding.” If use of the past tense were sufficient to indicate Congress’ intent to re strict analysis to the state-court record, the phrase “in light of the evidence presented in the State court proceed ing” in would be superfluous. The majority’s construction of fails to give meaning to Con gress’ decision to include language referring to the evi dence presented to the state court in Cf. (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks and brackets omitted)). Ignoring our usual “reluctan[ce] to treat statutory terms as surplusage in any setting,” TRW Inc. v. Andrews, 34 U.S. 9, 3 (200) (internal quotation marks omitted), the majority characterizes the phrase appearing in as mere “clarifying language,” ante, at 2, n. 7. It specu lates that “[t]he omission of clarifying language from just as likely reflects Congress’ belief that such language was unnecessary as it does anything else.” Ante, at 2–3, n. 7. The argument that this phrase is merely “clarifying” might have more force, however, had Congress included this phrase in but not in As between the two provisions, —which re Cite as: 63 U. S. (20) 7 SOTOMAYOR, J., dissenting quires review of the state court’s “determination of the facts”—more logically depends on the facts presented to the state court. Because this provision needs less clarifi cation on this point than it is all the more telling that Congress included this phrase in but elected to exclude it from Unlike my colleagues in the majority, I refuse to assume that Congress simply engaged in sloppy drafting. The inclusion of this phrase in —coupled with its omission from ’s partner provision, —provides strong reason to think that Con gress did not intend for the analysis to be limited categorically to “the evidence presented in the State court proceeding.” 2 The “ ‘broader context of the statute as a whole,’ ” ante, at 9 ), reinforces this conclusion. In particular, Con gress’ decision to include in AEDPA a provision, that permits federal evidentiary hearings in certain circumstances provides further evidence that Congress did not intend to limit the inquiry to the state-court record in every case. We have long recognized that some diligent habeas petitioners are unable to develop all of the facts support ing their claims in state court.4 As discussed above, in —————— 4 See, e.g., Michael (noting that diligent efforts to develop the facts might be “thwarted, for example, by the conduct of another or by happenstance”); (noting that the prosecution might have “concealed the facts” supporting “a claim which was pursued with diligence”); (requiring federal courts to grant evidentiary hearings when, inter alia, “the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing” or “there is a substantial allegation of newly discovered evidence”), overruled in part on other grounds by CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting enacting AEDPA, Congress generally barred evidentiary hearings for petitioners who did not “exercise diligence in pursuing their claims” in state court. Michael 29 U.S., at ; see also Importantly, it did not impose any express limit on evidentiary hearings for petitioners who had been diligent in state court. See at (“[T]he statute does not equate prisoners who exer cise diligence in pursuing their claims with those who do not”). For those petitioners, Congress left the decision to hold a hearing “to the sound discretion of district courts.” 0 U.S., at 473. Faced with situations in which a diligent petitioner offers additional evidence in federal court, the courts of appeals have taken two approaches to applying Some courts have held that when a federal court admits new evidence supporting a claim adjudicated on the merits in state court, does not apply at all and the federal court may review the claim de novo. See ante, at 2; 42 U.S. 649, 63 (2004) ; see, e.g., Winston v. Kelly, 92 F.3d 3, –6 (CA4 200). I agree with the majority’s rejection of this approach. See ante, at 2. It would un dermine the comity principles motivating AEDPA to de cline to defer to a state-court adjudication of a claim because the state court, through no fault of its own, lacked all the relevant evidence. —————— Of course, only applies when a state court has adjudi cated a claim on the merits. There may be situations in which new evidence supporting a claim adjudicated on the merits gives rise to an altogether different claim. See, e.g., Reply Brief for Petitioner 0– ). The majority opinion does not foreclose this possibility. I assume that the majority does not intend to suggest that review is limited to the state-court record when a petitioner’s inability to develop the facts supporting his claim was the fault of the state court itself. See generally Tr. of Oral Arg. in Bell v. Kelly, O. T. 200, No. 07–223. Cite as: 63 U. S. (20) 9 SOTOMAYOR, J., dissenting Other courts of appeals, including the court below, have struck a more considered balance. These courts have held that continues to apply but that new evidence properly presented in a federal hearing is relevant to the reasonableness of the state-court decision. See Pinholster v. Ayers, 90 F.3d 6, (“If the evidence is admissible under Michael or and if it does not render the petitioner’s claims unexhausted then it is properly considered in evaluating whether the legal conclusion reached by the state habeas court was a reasonable application of Su preme Court law”); accord, Wilson v. Mazzuca, 70 F.3d 490, 00 ; ; 92 (CA 200). This approach accommodates the competing goals, reflected in §§224(d) and 224(e)(2), of according defer ence to reasonable state-court decisions and preserving the opportunity for diligent petitioners to present evidence to the federal court when they were unable to do so in state court. The majority charts a third, novel course that, so far as I am aware, no court of appeals has adopted: continues to apply when a petitioner has additional evi dence that he was unable to present to the state court, but the district court cannot consider that evidence in deciding whether the petitioner has satisfied The problem with this approach is its potential to bar federal habeas relief for diligent habeas petitioners who cannot present new evidence to a state court. Consider, for example, a petitioner who diligently at tempted in state court to develop the factual basis of a claim that prosecutors withheld exculpatory witness statements in violation of The state court denied relief on the ground that the withheld evidence then known did not rise to the level of materiality required under Brady. Before the time for 0 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting filing a federal habeas petition has expired, however, a state court orders the State to disclose additional docu ments the petitioner had timely requested under the State’s public records Act. The disclosed documents reveal that the State withheld other exculpatory witness state ments, but state law would not permit the petitioner to present the new evidence in a successive petition.6 Under our precedent, if the petitioner had not presented his Brady claim to the state court at all, his claim would be deemed defaulted and the petitioner could attempt to show cause and prejudice to overcome the default. See Michael 29 U.S., at 444; see also n. If, however, the new evidence merely bolsters a Brady claim that was adjudicated on the merits in state court, it is unclear how the petitioner can obtain federal habeas relief after today’s holding. What may have been a rea sonable decision on the state-court record may no longer be reasonable in light of the new evidence. See Kyles v. Whitley, 4 U.S. 49, (99) (materiality of Brady evidence is viewed “collectively, not item by item”). Be cause the state court adjudicated the petitioner’s Brady claim on the merits, would still apply. Yet, under the majority’s interpretation of a fed eral court is now prohibited from considering the new evidence in determining the reasonableness of the state court decision. The majority’s interpretation of thus sug gests the anomalous result that petitioners with new claims based on newly obtained evidence can obtain fed eral habeas relief if they can show cause and prejudice for their default but petitioners with newly obtained evidence supporting a claim adjudicated on the merits in state court —————— 6 See, e.g., at 37–3 (statement by counsel for the respondent warden that Virginia law bars all successive habeas applications, even in cases where the petitioner has new evidence). Cite as: 63 U. S. (20) SOTOMAYOR, J., dissenting cannot obtain federal habeas relief if they cannot first satisfy without the new evidence. That the majority’s interpretation leads to this anomaly is good reason to conclude that its interpretation is wrong. See (“[I]t is irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim”). The majority responds to this anomaly by suggesting that my hypothetical petitioner “may well [have] a new claim.”7 Ante, at 4, n. 0. This suggestion is puzzling. New evidence does not usually give rise to a new claim; it merely provides additional proof of a claim already adjudi cated on the merits. The majority presumably means to suggest that the petitioner might be able to obtain federal-court review of his new evidence if he can show cause and prejudice for his failure to present the “new” claim to a state court. In that scenario, however, the federal court would review the purportedly “new” claim de novo. The majority’s approach thus threatens to replace deferential review of new evidence under with de novo review of new evidence in the form of “new” claims.9 Because it is unlikely that Congress intended de novo review—the result suggested by the majority’s opinion—it must have intended for district courts to consider newly discovered evidence in conducting the analysis. —————— 7 The majority declines, however, to provide any guidance to the lower courts on how to distinguish claims adjudicated on the merits from new claims. Even if it can fairly be argued that my hypothetical petitioner has a new claim, the majority fails to explain how a diligent petitioner with new evidence supporting an existing claim can present his new evi dence to a federal court. 9 In this vein, it is the majority’s approach that “would not take seri ously AEDPA’s requirement that federal courts defer to state-court decisions.” Ante, at 0, n. 3. 2 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting The majority’s reading of appears ultimately to rest on its understanding that state courts must have the first opportunity to adjudicate habeas petitioners’ claims. See ante, at 9–0 (“It would be contrary to [AEDPA’s exhaustion requirement] to allow a petitioner to overcome an adverse state-court decision with new evi dence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo”).0 JUSTICE BREYER takes the same position. See ante, at 2 (opinion concurring in part and dissenting in part) (AEDPA is designed “to give the State a first opportunity to consider most matters”). I fully agree that habeas petitioners must attempt to present evidence to state courts in the first instance, as does JUSTICE ALITO, see ante, at 2. Where I disagree with the majority is in my understanding that already accomplishes this result. By reading to do the work of the majority gives an unnaturally cramped reading. As a result, the majority either has foreclosed habeas relief for diligent petitioners who, through no fault of their own, were unable to present exculpatory evidence to the state court that adjudicated their claims or has created a new set of procedural com plexities for the lower courts to navigate to ensure the availability of the Great Writ for diligent petitioners. 3 These considerations lead me to agree with the courts of appeals that have concluded that a federal court should assess the reasonableness of a state court’s application of clearly established federal law under in light of evidence properly admitted in a federal evidentiary hearing. There is nothing “strange” about this approach. —————— 0 Under my reading of of course, the district court would review properly admitted new evidence through the deferential lens of not de novo. Cite as: 63 U. S. (20) 3 SOTOMAYOR, J., dissenting Ante, at 0. Under federal courts routinely engage in analysis that the state court itself might never have conducted or did not conduct. For example, when a state court summarily denies a claim without explanation, as the California Supreme Court did here, district courts must deny habeas relief pursuant to so long as “there is any reasonable argument” supporting the denial of the petitioner’s claim. Harrington, 62 U. S., at (slip op., at 6). We likewise ask whether a state-court decision unreasonably applied clearly established federal law when the state court issued a reasoned decision but failed to cite federal law altogether. See 37 U.S. 3, Determining whether a state court could reasonably have denied a petitioner relief in light of newly discovered evidence is not so different than determining whether there is any reasonable basis for a state court’s unreasoned decision. Admittedly, the text of standing alone, does not compel either reading of that provision. But constru ing to permit consideration of evidence prop erly introduced in federal court best accords with the text of and AEDPA’s structure as a whole. By interpreting to prevent nondiligent petitioners from gaming the system—the very purpose of —the majority potentially has put habeas relief out of reach for diligent petitioners with meritorious claims based on new evidence. C The majority claims that its holding is “consistent” with our case law. Ante, at 0. Quite the opposite is true: Our cases reflect our previous understanding that evidence properly admitted pursuant to is relevant to the analysis. In JUSTICE THOMAS, the author of today’s opinion, confirmed this understanding of the interplay 4 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting between and 224(e)(2). As noted above, we admonished district courts to consider whether a peti tioner’s allegations, if proved true, would satisfy §224(d) in determining whether to grant a hearing. After high lighting the deference owed to state courts under §§224(d) and 224(e)(), we stated: “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s fac tual allegations, which, if true, would entitle the applicant to federal habeas relief. Because the defer ential standards prescribed by §224 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evi dentiary hearing is appropriate.” 0 U.S., at (ci tation omitted). By instructing district courts to consider the §224(d) standards in deciding whether to grant a hearing, we must have understood that the evidence admitted at a hearing could be considered in the analysis. See Brief for American Civil Liberties Union as Amicus Curiae 9 (“The whole point of ’s admonition that the court must decide whether to hold a hearing with an eye on is that some proffers of evidence will not justify federal fact-finding in view of but that other proffers of proof will”). In Michael the warden argued that bars an evidentiary hearing whenever a peti tioner was unable to develop the factual record in state court, “whether or not through his own fault or neglect.” —————— The majority overlooks this aspect of It quotes Landri gan’s observation that “if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing,” 0 U.S., at but that statement has no bearing on the question decided by the Court today. Cite as: 63 U. S. (20) SOTOMAYOR, J., dissenting 29 U.S., at 430. Under the warden’s argument, a peti tioner who did not develop the record in state court, what ever the reason, would be barred from presenting evidence to the federal court. In rejecting that argument, we observed: “A prisoner who developed his claim in state court and can prove the state court’s decision was ‘contrary to, or involved an unreasonable application of, clearly es tablished Federal law, as determined by the Supreme Court of the United States,’ is not barred from obtain ing relief by If the opening clause of covers a request for an evidentiary hear ing on a claim which was pursued with diligence but remained undeveloped in state court because, for in stance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy ” (citation omitted; emphasis added). A petitioner in the latter situation would almost certainly be unable to “satisfy §224(d)” without introducing the concealed facts in federal court. This passage thus reflects our understanding that, in some circumstances, a peti tioner might need an evidentiary hearing in federal court to prove the facts necessary to satisfy To avoid foreclosing habeas relief for such petitioners, we concluded that could not bear the warden’s “harsh read ing,” which essentially would have held petitioners strictly at fault for their inability to develop the facts in state court. The majority today gives an equally “harsh reading” to to achieve the result we rejected in Michael2 —————— 2 The majority claims that Michael supports its reading of With respect to one claim asserted by the petitioner, we observed that “[t]he Court of Appeals rejected this claim on the merits 6 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting None of the other cases cited by the majority supports its result. In v. Taylor, 29 U.S. 362 (Terry ), we interpreted to ask whether the state-court decision “identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” at 43. However, we had no reason to decide whether the inquiry was limited to the state-court record, as the District Court did not hold an evidentiary hearing in that case. See In we stated that “we have made clear that whether a state court’s decision was unreason able must be assessed in light of the record the court had before it.” 42 U.S., at 62. In the next sentence, how ever, we observed that the evidence at issue “could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court.” at 62–63. We proceeded to find that the evidence was not properly ad mitted under before concluding that the Court of Appeals had erred in its analysis. at 63; see also 46 U.S. 74, (200) In sum, our cases reflect our recognition that it is some times appropriate to consider new evidence in deciding whether a petitioner can satisfy In reading our precedent to require the opposite conclusion, the ma jority disregards the concerns that motivated our decision in Michael : Some petitioners, even if diligent, —————— under so it is unnecessary to reach the question whether would permit a hearing on the claim.” 29 U.S., at 444. That statement merely reflects the fact that the Court of Appeals had rejected that claim under without considering whether the petitioner was entitled to a hearing because the petitioner had not requested a hearing on that claim. See v. Taylor, 9 F.3d 42, 42, 42–429 Cite as: 63 U. S. (20) 7 SOTOMAYOR, J., dissenting may be unable to develop the factual record in state court through no fault of their own. We should not interpret to foreclose these diligent petitioners from accessing the Great Writ when the state court will not consider the new evidence and could not reasonably have reached the same conclusion with the new evidence before it. II I also disagree with the Court’s conclusion that the Court of Appeals erred in holding that Pinholster had satisfied on the basis of the state-court record.3 A The majority omits critical details relating to the per formance of Pinholster’s trial counsel, the mitigating evidence they failed to discover, and the history of these proceedings. I therefore highlight several aspects of the facts and history of this case. —————— 3 I agree with the majority that the state-court record in this case consists of “the ‘allegations of [the] habeas corpus petition and any matter of record pertaining to the case.’ ” Ante, at 6, n. 2 (quot ing In re Hochberg, 2 Cal. 3d 70, 74, n. 2, 47 P.2d 3–4, n. 2 (970); some internal quotation marks omitted). The majority does not decide which of the two state-court decisions should be reviewed. See ante, at n. One amicus argues that Pinholster must prove that both state-court decisions involved an unreasonable application of law. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 26. This argument is based on amicus’ understanding that the California Supreme Court rejected the second petition as successive and, alternatively, on the merits. The State has not argued, however, that the second ruling rests on a procedural ground. See ante, at 6, n. 2. When a state court denies two petitions on the merits and the difference between the petitions is that the second petition contains additional evidence supporting the petitioner’s claim, I see no reason why the petitioner must independently show that the first decision was unreasonable. CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting After the jury returned a guilty verdict, the court in structed the jury to return six days later for the penalty phase. This prompted discussion at sidebar regarding whether the State had provided notice of its intent to offer aggravating evidence. Pinholster’s court-appointed attor ney, Wilbur Dettmar, argued that the State should be precluded from offering aggravating evidence: “I am not presently prepared to offer anything by way of mitigation. If I was going to proceed on mitigation, the people would have the right to rebuttal with or without notice. “I took the position, since the people had not given notice, I had not prepared any evidence by way of miti gation. I would submit it on that basis.” 2 Re porter’s Tr. 720 (hereinafter Tr.) Undoubtedly anticipating that counsel might need addi tional time to prepare an adequate mitigation defense, the court asked Dettmar whether a continuance would be helpful in the event it ruled against him. He declined the offer on the spot, stating: “I think we would probably still go forward on Monday. Clearly the one person that comes to mind is the defendant’s mother. How much beyond that I don’t know. I don’t think the pa[ss]age of time would make a great deal of difference.” at 727–72. After hearing testimony, the court denied Pinholster’s motion to preclude aggravating evidence. At the penalty phase, defense counsel called only one witness: Pinholster’s mother, Burnice Brashear. Brashear testified that Pinholster “never really wanted for anything at home too much” and “had everything normally materi alwise that most people have.” at 739. She said that Pinholster was “different” from his siblings, whom she characterized as “basically very good children.” at 740–7402. Pinholster, she said, had a “friendly” relation Cite as: 63 U. S. (20) 9 SOTOMAYOR, J., dissenting ship with his stepfather, although his stepfather “some times would lose his temper” with Pinholster, who “had a mind of his own.” –7393; see also (stating that his stepfather was “at times” “abusive or near abusive”). Brashear provided brief testimony regarding Pinhol ster’s childhood. She described two car accidents—one when she ran over him in the driveway and one when he went through the windshield. at 739–739. She stated that he started failing school in the first grade and that the school eventually “sent him to [an] educationally handicapped class.” at 7393–7394. When Pinholster was 0, a psychologist recommended placing him in a mental institution, but she “didn’t think he was that far gone.” at 739. A few years later, she testified, he spent six months in a state hospital for emotionally handi capped children. According to Brashear, Pinholster had suffered from epilepsy since age when he was beaten in jail. at 7397. She said that her family doctor, Dr. Dubin, had given him medication to treat the epilepsy. Brashear also suggested that Pinholster did not have long to live, stating that he had “a chip in his head floating around” and that “they don’t think—he won’t be here very much longer anyway.”4 In closing argument, the prosecutor ridiculed Brashear’s testimony. See 3 (“She said his stepfather disciplined him. So what? I am sure you have all disci plined your children. I was disciplined myself”); (“He was run over by a car when he was three years old. That’s very unfortunate. There is no evidence of any brain dam age. A lot of children get dropped, fall from their cribs or —————— 4 The judge instructed the jury to disregard this testimony upon motion by the prosecutor, but the prosecutor then discussed the testi mony in her closing argument. See infra, at 33–34. 20 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting whatever”); at 7444–744 (“I submit to you that if this defendant truly had epilepsy, a doctor would have been brought in to tell you that. Medical records, something”). The prosecutor also highlighted Brashear’s testimony about Pinholster’s stable home environment, arguing, “He came from a good home. You heard that he was not a deprived child. Had many things going for him, probably more than many children.” Notwithstanding the meager mitigation case presented by Pinholster’s counsel, it took the jury two days to reach a decision to sentence Pinholster to death. His counsel later moved to modify the sentence to life imprisonment. In denying the motion, the trial judge stated, “The evidence which the defense offered concerning the defendant’s extenuation was merely some testimony from his mother that was not persuasive. His mother did not, in the court’s opinion, present any evidence which the court would find to be a moral justification or extenuation for his conduct. No witness supplied such evidence.” 4 at 74. 2 After his conviction and sentence were affirmed on appeal, Pinholster filed a habeas petition in the California Supreme Court alleging, among other things, that his counsel had “unreasonably failed to investigate, prepare and present available mitigating evidence during penalty phase.” Record ER–03. Pinholster’s state-court petition included 2 exhibits. In a series of declarations, his trial attorney Harry Brainard (who had by then been disbarred) confirmed what Dettmar had forthrightly told the trial court: Brainard and Dettmar neither expected nor prepared to present mitigation evidence. See at ER–333 (“Mr. —————— By the time of Pinholster’s state-court habeas petition, Dettmar was deceased. Cite as: 63 U. S. (20) 2 SOTOMAYOR, J., dissenting Dettmar and I did not prepare a case in mitigation. We felt there would be no penalty phase hearing inasmuch as we did not receive written notice of evidence in aggrava tion pursuant to Penal Code §90.3”). Brainard further confirmed what was apparent from the mitigation case they eventually put on: They conducted virtually no miti gation investigation. See at ER–2 (“I have no recol lection of Mr. Dettmar having secured or reviewed any of Scott’s medical records, nor did I see any of Scott’s medical So far as I recollect, neither Mr. Dettmar nor myself interviewed any of Scott’s previous medical provid ers”); at ER–3 (“I do not recall interviewing or at tempting to interview Scott’s family members or any other persons regarding penalty phase testimony, except Mrs. Brashears [sic]”); (“I have no recollection of seeing or attempting to secure Scott’s school records, juvenile re cords, medical records, or records of prior placements”); (“I have no recollection of interviewing or attempting to interview Scott’s former school teachers, counselors, or juvenile officers”).6 Statements by relatives (none of whom trial counsel had attempted to interview regarding Pinholster’s background) and documentary evidence revealed that the picture of Pinholster’s family life painted by his mother at trial was false. Pinholster was “raised in chaos and poverty.” at ER–32. A relative remembered seeing the children mix together flour and water in an attempt to get some thing to eat. Pinholster’s stepfather beat him several times a week, including at least once with a two-by-four board. “There was so much violence in [the] home” that Pinholster’s brother “dreaded coming home each day.” at ER–. Pinholster’s half sister was removed from the home as a result of a beating by his stepfather. —————— 6 Counsel’s billing records, which were before the California Supreme Court as part of the trial record, confirmed Brainard’s recollection. 22 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting Documentary evidence showed, directly contrary to Brashear’s trial testimony, that Pinholster’s siblings had very troubled pasts. Pinholster’s elder brother was ar rested for armed burglary, robbery, and forcible rape of a 4-year-old with a deadly weapon. While in custody, he was diagnosed as “catatonic-like” and “acutely psychotic, probably suffering some type of schizophrenia.” at ER–29, ER–224. He later committed suicide.7 Pinhol ster’s half sister, a recovering alcoholic, had been made a ward of the juvenile court for prostitution and forcible sexual battery on a 4-year-old. Pinholster’s petition and exhibits described a long his tory of emotional disturbance and neurological problems. A former schoolteacher stated that, as a child, Pinholster “seemed incapable of relating either to his peers or to adults,” that “[i]t was even hard to maintain eye contact with him,” and that “[h]is hyperactivity was so extreme that [she] formed the opinion it probably had an organic base.” at ER–23. School records revealed that he “talk[ed] to self continuously,” had “many grimaces,” fought in his sleep, and could “control self for only hour per day.” at ER–230, ER–233. He “show[ed] progres sive deterioration each semester since Kindergarten.” at ER–230. School officials recommended placement in a school for emotionally handicapped students and referral to a neurologist. At age nine, he had an abnormal EEG, revealing “an organic basis for his behavior.” at ER– 7, ER–234. Just months before the homicides, a doctor recommended placement in the Hope Psychiatric Insti tute, but this did not occur. This and other evidence attached to the petition was —————— 7 Accordingto Pinholster’s half sister, “The death of our brother Al vin was a severe emotional blow to me and to Scott. I believed Scott’s substance abuse (heroin) arose following and as a result of Alvin’s death.” Record ER–34. Cite as: 63 U. S. (20) 23 SOTOMAYOR, J., dissenting summarized in a declaration by Dr. George Woods. Dr. Woods opined that Pinholster “suffer[ed] from severe and long standing seizure disorders,” at ER–6, that his childhood head traumas “may have been the precipitating factors for [his] seizure disorder,” at ER–7, and that he suffered from bipolar mood disorder. He pointed to trial testimony that immediately before the burglary on the night of the homicides, Pinholster announced that he “ ‘ha[d] a message from God’ ”—which Dr. Woods believed to reflect “[a]uditory hallucinations” and “severe psycho sis.” at ER–69. He concluded that at the time of the homicides Pinholster “was suffering from bipolar mood disorder with psychotic ideation and was suffering a com plex partial seizure.” at ER–70. He also observed that Pinholster’s “grossly dysfunctional family, the abuse he received as a child, his history of suffering from sub stantial seizure and mood disorders, his frequently un treated psychiatric and psychological disabilities and his educational handicaps were relevant circumstances which would extenuate the gravity of the crime.” at ER–7. On the basis of Pinholster’s submission, the California Supreme Court denied Pinholster’s ineffective-assistance of-counsel claim. Pinholster then filed a habeas petition in Federal Dis trict Court. He included an additional exhibit: a declara tion by Dr. John Stalberg, a psychiatrist who had hastily examined Pinholster and produced a two-page report in the middle of the original trial. After reviewing the new material collected by Pinholster’s habeas counsel, Dr. Stalberg stated that the available evidence showed a —————— Counsel had arranged for Dr. Stalberg to examine Pinholster in the middle of his original trial. The only documents they provided to him were police reports relating to the case and a 97 probation report. In a two-page report that focused primarily on Pinholster’s mental state at the time of the offenses, Dr. Stalberg concluded that Pinholster had “psychopathic personality traits.” at ER–7. 24 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting familial history of “severe psychiatric disorders,” “a history of seizure disorders of unknown etiology,” “repeated head traumas,” “an abnormal EEG,” and “evidence of mental disturbance during Mr. Pinholster’s childhood and some degree of brain damage.” at ER–493. He also opined that “there [was] voluminous mitigating evidence which includes a childhood of physical abuse, emotional neglect, and a family history of mental illness and criminal behav ior.” at ER–494. The District Court stayed the federal proceedings while Pinholster sought state-court review of claims the District Court deemed unexhausted. Pinholster’s second habeas submission to the California Supreme Court included Stalberg’s declaration. That court summarily denied Pinholster’s petition on the merits. Pinholster returned to Federal District Court and filed an amended petition. After an evidentiary hearing, the District Court concluded that Pinholster had demon strated deficient performance and prejudice under Strick land.9 The Ninth Circuit, sitting en banc, affirmed. 90 F.3d 6. B As the majority notes, Pinholster’s claim arises under “The benchmark for judging any claim of ineffectiveness [under ] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U. S., —————— 9 The District Court based its decision on the evidence adduced at an evidentiary hearing. The District Court did not apply 2 U.S. C. §224(d) because it thought, erroneously, that the California Supreme Court had not adjudicated Pinholster’s claim on the merits. App. to Pet. for Cert. 27. For the reasons I discuss, however, the District Court could have concluded that Pinholster had satisfied on the basis of the state-court record alone. Cite as: 63 U. S. (20) 2 SOTOMAYOR, J., dissenting at 66. To satisfy this benchmark, a defendant must show both that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” at 67. When applies, the question is whether “ ‘fair minded jurists could disagree’ on the correctness of the state court’s decision.” Harrington, 62 U. S., at (slip op., at ) (quoting 4 U.S. 62, 664 (2004)). When the state court rejected a claim on the pleadings assuming the allegations to be true, as here, see ante, at 6, n. 2, the federal court must ask whether “there is any reasonable argument” support ing the state court’s conclusion that the petitioner’s allega tions did not state a claim, Harrington, 62 U. S., at (slip op., at 6). This standard is “difficult,” but not im possible, “to meet.” at (slip op., at 2). This case is one in which fairminded jurists could not disagree that the state court erred. C Under “the defendant must show that coun sel’s representation fell below an objective standard of reasonableness,” measured according to “prevailing pro fessional norms.” 466 U.S., at 6. We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” at 69. When §224(d) applies, federal-court review is “ ‘doubly’ ” deferential. Harrington, 62 U. S., at (slip op., at 6) (slip op., at )). In the present AEDPA posture, “[t]he question is whether there is any reasonable argument that counsel satisfied ’s deferential standard.” Har rington, 62 U. S., at (slip op., at 6). Here, there is none. The majority surmises that counsel decided on a strat egy “to get the prosecution’s aggravation witnesses ex 26 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting cluded for lack of notice, and if that failed, to put on Pin holster’s mother.” Ante, at 9. This is the sort of “ ‘post hoc rationalization’ for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions” that courts cannot indulge. Harrington, 62 U. S., at (slip op., ) (quoting 39 U.S. 0, 26–27 (2003)). The majority’s explanation for counsel’s conduct contradicts the best available evidence of counsel’s actions: Dettmar’s frank, contemporaneous statement to the trial judge that he “had not prepared any evidence by way of mitigation.” 2 Tr. 720. The majority’s conjecture that counsel had in fact prepared a mitigation defense, based primarily on isolated entries in counsel’s billing records, requires it to assume that Dettmar was lying to the trial judge.20 In any event, even if Pinholster’s counsel had a strategic reason for their actions, that would not automatically render their actions reasonable. For example, had counsel decided their best option was to move to exclude the ag gravating evidence, it would have been unreasonable to forgo a mitigation investigation on the hope that the mo tion would be granted. With a client’s life at stake, it would “flou[t] prudence,” 4 U.S. 374, —————— 20 The majority misleadingly cites entries showing that counsel were preparing Brashear’s penalty phase testimony after counsel learned that the State intended to present aggravation evidence. The cited entries predating that event show only that counsel conducted about one day’s worth of investigation—consisting of talking to Brashear and researching epilepsy—two months before the penalty phase. See 3 Clerk’s Tr. (.-hour phone call to Brashear on Jan. 3); at 64, 69 (3-hour meeting with Brashear regarding “childhood problems” on Feb. 23); at 69 (3. hours for “[r]esearch re; epilepsy and conf. with nurse” on Feb. 2). There is no evidence in the records that counsel actually planned to present mitigating evidence. Indeed, their complete failure to follow up on any of the information they learned in their minimal investigation only confirms that they were not planning to present mitigating evidence. See infra, at 29–3. Cite as: 63 U. S. (20) 27 SOTOMAYOR, J., dissenting 39 (200), for an attorney to rely on the possibility that the court might preclude aggravating evidence pursuant to a “legal technicality” without any backup plan in place in case the court denied the motion, ante, at 9. No rea sonable attorney would pursue such a risky strategy. I do not understand the majority to suggest otherwise. Instead, I understand the majority’s conclusion that counsel’s actions were reasonable to rest on its belief that they did have a backup plan: a family-sympathy defense. In reaching this conclusion, the majority commits the same error that we corrected, applying in : It holds a purportedly “tactical judgment” to be reasonable without assessing “the ade quacy of the investigatio[n] supporting [that] judgmen[t],” 39 U.S., at 2. As we stated in : “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are vir tually unchallengeable; and strategic choices made af ter less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to inves tigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” – 69. We have repeatedly applied this principle since Strick land. See Sears v. Upton, 6 U. S. (200) (per curiam) (slip op., at 9); Porter v. McCollum, U. S. (slip op., at 0); 39 U. S., 2 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting at 27; Terry 29 U.S., at 396.2 As these cases make clear, the prevailing professional norms at the time of Pinholster’s trial required his attor neys to “conduct a thorough investigation of the defen dant’s background,” (citing ABA Standards for Criminal Justice 4–4., commentary, p. 4– (2d ed. 90) (hereinafter ABA Standards)), or “to make a reasonable decision that makes particular investigations unneces sary,” 466 U.S., at 69.22 “In judging the defense’s investigation, as in applying gener ally, hindsight is discounted by pegging adequacy to ‘coun sel’s perspective at the time’ investigative decisions are made, and by giving a ‘heavy measure of deference to counsel’s judgments.’ ” 4 U.S., at 3 (quot ing 466 U.S., at 69, 69; citation omitted). In some cases, “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” 4 U.S., at 33; see, e.g., Bobby v. Van Hook, U. S. (slip op., at ); U.S. 776, 4– (97). In other cases, however, requires fur ther investigation. —————— 2 I do not doubt that a decision to present a family-sympathy mitiga tion defense might be consistent “with the standard of professional competence in capital cases that prevailed in Los Angeles in 94” in some cases. Ante, at 24. My point is that even if counsel made a strategic decision to proceed with such a defense, that decision was unreasonable because it was based on an unreasonably incomplete investigation. 22 See also ABA Standards 4–4., commentary, at 4– (“Informa tion concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself”). As we recognized in the ABA Standards, though not dispositive, “are guides to determining what is reasonable.” 466 U.S., at 6; see also 39 U.S. 0, 24 (2003). Cite as: 63 U. S. (20) 29 SOTOMAYOR, J., dissenting is illustrative of the competence we have re quired of counsel in a capital case. There, counsel’s in vestigation was limited to three sources: psychological testing, a presentencing report, and Department of Social Services 39 U.S., at 23–24. The records revealed that the petitioner’s mother was an alcoholic, that he displayed emotional difficulties in foster care, that he was frequently absent from school, and that on one occasion, his mother left him alone for days without food. at 2. In these circumstances, we concluded, “any reasonably competent attorney would have realized that pursuing these leads was necessary to making an in formed choice among possible defenses.” Accord ingly, we held, the state court’s assumption that counsel’s investigation was adequate was an unreasonable applica tion of 39 U.S., at 2.23 This case is remarkably similar to As the majority reads the record, counsel’s mitigation investiga tion consisted of talking to Pinholster’s mother, consulting with Dr. Stalberg, and researching epilepsy.24 Ante, What little information counsel gleaned from this “rudi mentary” investigation, 39 U.S., at 24, would have led any reasonable attorney “to investigate further,” at 27. Counsel learned from Pinholster’s mother that he attended a class for educationally handicapped chil dren, that a psychologist had recommended placing him in a mental institution, and that he spent time in a state —————— 23 As the majority notes, see ante, at 24–2, ’ trial counsel acknowledged that the investigation he conducted was inconsistent with standard practice in Maryland. See 39 U.S., at 24. We inde pendently concluded, however, that the investigation “was also unrea sonable in light of what counsel actually discovered in the ” at 2 24 The majority also posits that Brainard likely spent time preparing Pinholster’s brother Terry. However, Terry averred in a declaration that Pinholster’s attorneys “never asked [him] any questions relating to Scott’s background or [their] family history.” Record ER–. 30 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting hospital for emotionally handicapped children. They knew that Pinholster had been diagnosed with epilepsy. “[A]ny reasonably competent attorney would have real ized that pursuing” the leads suggested by this informa tion “was necessary to making an informed choice among possible defenses.” at 2; see also 39 (99) (“[E]vidence about the defen dant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvan taged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” (internal quotation marks omitted)). Yet counsel made no effort to obtain the readily available evidence suggested by the information they learned, such as Pin holster’s schooling or medical records, or to contact Pinholster’s school authorities. They did not contact Dr. Dubin or the many other health-care providers who had treated Pinholster. Put simply, counsel “failed to act while potentially powerful mitigating evidence stared them in the face.” Bobby, U. S., at (slip op., at ) (citing 39 U.S., at 2). The “impediments” facing counsel, ante, at 2, did not justify their minimal investigation. It is true that Pinhol ster was “an unsympathetic client.” But this fact compounds, rather than excuses, counsel’s deficiency in ignoring the glaring avenues of investigation that could explain why Pinholster was the way he was. See Sears, 6 U. S., at (slip op., at 7) (“This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his hor rendous acts—especially in light of his purportedly stable upbringing”). Nor can Dr. Stalberg’s two-page report, which was based on a very limited record and focused primarily on Pinholster’s mental state at the time of the homicides, excuse counsel’s failure to investigate the Cite as: 63 U. S. (20) 3 SOTOMAYOR, J., dissenting broader range of potential mitigating circumstances. “The record of the actual sentencing proceedings under scores the unreasonableness of counsel’s conduct by suggesting that their failure to investigate thoroughly re sulted from inattention, not reasoned strategic judgment.” 39 U.S., at 26. Dettmar told the trial judge that he was unprepared to present any mitigation evi dence. The mitigation case that counsel eventually put on can be described, at best, as “halfhearted.” Counsel made no effort to bolster Brashear’s self-interested testi mony with school or medical records, as the prosecutor effectively emphasized in closing argument. And because they did not pursue obvious leads, they failed to recognize that Brashear’s testimony painting Pinholster as the bad apple in a normal, nondeprived family was false. In denying Pinholster’s claim, the California Supreme Court necessarily overlooked ’s clearly estab lished admonition that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations.” –69. As in in light of the information available to Pinholster’s counsel, it is plain that “reasonable professional judgments” could not have supported their woefully inadequate investigation.2 466 U.S., at 69. Accordingly, the California Supreme Court could not reasonably have concluded that Pinholster —————— 2 The majority chastises the Court of Appeals for “attributing strict rules to this Court’s recent case law.” Ante, at 24. I agree that courts should not interpret our cases to prescribe strict rules regarding the required scope of mitigation investigations. See 4 U.S. 374, 394 (200) (O’Connor, J., concurring) (noting “our longstand ing case-by-case approach to determining whether an attorney’s per formance was unconstitutionally deficient under ”). The Ninth Circuit, however, did no such thing. It appropriately gave thoughtful consideration to the guideposts contained in these cases, just as we have previously done. See, e.g., Bobby v. Van Hook, U. S. (slip op., at ). 32 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting had failed to allege that his counsel’s investigation was inadequate under D The majority also concludes that the California Supreme Court could reasonably have concluded that Pinholster did not state a claim of prejudice. This conclusion, in light of the overwhelming mitigating evidence that was not before the jury, is wrong. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the pro ceeding would have been different.” When a habeas petitioner challenges a death sentence, “the ques tion is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circum stances did not warrant death.” at 69. This inquiry requires evaluating “the totality of the available mitiga tion evidence—both that adduced at trial, and the evi dence adduced in the habeas proceeding—in reweighing it against the evidence in aggravation.” Terry 29 U.S., at 397–39. The ultimate question in this case is whether, taking into account all the mitigating and aggra vating evidence, “there is a reasonable probability that at least one juror would have struck a different balance.” 39 U.S., at 37; see Cal. Penal Code Ann. §90.4(b) (West 200) (requiring a unanimous jury verdict to impose a death sentence). Like the majority, I first consider the aggravating and mitigating evidence presented at trial. By virtue of its verdict in the guilt phase, the jury had already concluded that Pinholster had stabbed and killed the victims. As the majority states, the jury saw Pinholster “revel” in his history of burglaries during the guilt phase. Ante, at 26. Cite as: 63 U. S. (20) 33 SOTOMAYOR, J., dissenting The jury heard evidence of Pinholster’s violent tendencies: He had kidnapped someone with a knife, cut a person in the arm with a razor, and had a history of hitting and kicking people. He threatened to kill the State’s lead witness. And he had an extensive disciplinary record in jail. Brashear offered brief testimony that was apparently intended to be mitigating. See at 9–20; see also ante, at 27–2.26 However, as the prosecutor argued, Brashear was not a neutral witness. See 3 Tr. 744 (“A mother clearly loves her son, ladies and gentlemen. Clearly not the most unbiased witness in the world”). Notwithstanding Brashear’s obvious self-interest, counsel failed to offer readily available, objective evidence that would have substantiated and expanded on her testimony. Their failure to do so allowed the prosecutor to belittle her testimony in closing argument. See at 9–20. And Brashear’s statement that Pinholster would not be alive much longer because he had “a chip in his head floating around,” 2 Tr. 7397, could only have undermined her credibility, as the prosecutor urged, see 3 (“Does she want you to believe sometime before he got to —————— 26 The majority mischaracterizes several aspects of Brashear’s testi mony. Although Brashear testified that the family “didn’t have lots of money,” she followed up that comment by stating that Pinholster did not bring friends to the house because “it was too nice a house.” 2 Tr. 7404. The prosecutor did not understand Brashear to have testified that Pinholster’s childhood was deprived. See 3 (“You heard that he was not a deprived child”). Nor did the California Su preme Court on direct appeal. Cal. 4th 6, 90, 24 P.2d 7, 7 Brashear did testify that Pinholster’s stepfather tried to “discipline” him and that he was “at times” “abusive or near abusive.” 2 Tr. 7392– 7393. She suggested, however, that Pinholster deserved the “disci pline” he received. See, e.g., (“Scott was always—he had a mind of his own”). It is unlikely the jury understood Brashear to be suggesting that her husband routinely beat Pinholster. The prosecutor did not come away with this understanding. See 3 34 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting country jail some doctor looked in a crystal ball and said, ‘In three years you are going to die’? That’s ridicu lous”). The trial judge was thoroughly unimpressed with Brashear’s testimony. See Moreover, the evidence presented in Pinholster’s state court petition revealed that Brashear distorted facts in her testimony in ways that undermined Pinholster’s mitiga tion case. As in Sears, 6 U. S., at (slip op., at 3), the prosecutor used Brashear’s testimony that Pinholster came from a good family against him. See 3 Tr. 7442. In sum, counsel presented little in the way of mitigating evidence, and the prosecutor effectively used their half hearted attempt to present a mitigation case to advocate for the death penalty. The jury nonetheless took two days to reach a decision to impose a death sentence. 2 The additional mitigating evidence presented to the California Supreme Court “adds up to a mitigation case that bears no relation” to Brashear’s unsubstantiated testimony. 4 U.S., at 393. Assuming the evidence presented to the California Supreme Court to be true, as that court was required to do, the new mitigating evidence presented to that court would have shown that Pinholster was raised in “chaos and poverty.” Record ER–32. The family home was filled with violence. Pinholster’s siblings had extremely trou bled pasts. There was substantial evidence of “mental disturbance during Mr. Pinholster’s childhood and some degree of brain damage.” at ER–493. Dr. Woods concluded that Pinholster’s aggressive con duct resulted from bipolar mood disorder. Just months before the murders, a doctor had recommended that Pin holster be sent to a psychiatric institute. Dr. Woods also explained that Pinholster’s bizarre behavior before the murders reflected “[a]uditory hallucinations” and “severe Cite as: 63 U. S. (20) 3 SOTOMAYOR, J., dissenting psychosis.” at ER–69. The available records con firmed that Pinholster suffered from longstanding seizure disorders, which may have been caused by his childhood head injuries. On this record, I do not see how it can be said that “[t]he ‘new’ evidence largely duplicated the mitigation evidence at trial.” Ante, at 29; see Arizona v. Fulminante, 499 U.S. 2, 29–299 (99) (evidence is not “merely cumulative” if it corroborates other evidence that is “unbelievable” on its own). Brashear’s self-interested testimony was not confirmed with objective evidence, as the prosecutor high lighted. The new evidence would have “destroyed the [relatively] benign conception of [Pinholster’s] upbringing” presented by his mother. 4 U.S., at 39. The jury heard no testimony at all that Pinholster likely suf fered from brain damage or bipolar mood disorder, and counsel offered no evidence to help the jury understand the likely effect of Pinholster’s head injuries or his bizarre behavior on the night of the homicides. The jury heard no testimony recounting the substantial evidence of Pinhol ster’s likely neurological problems. And it heard no medi cal evidence that Pinholster suffered from epilepsy. The majority responds that “much” of Pinholster’s new mitigating evidence “is of questionable mitigating value.” Ante, at 29. By presenting psychiatric testimony, it con tends, “Pinholster would have opened the door to rebuttal by a state expert.” But, because the California Supreme Court denied Pinholster’s petition on the plead ings, it had no reason to know what a state expert might have said. Moreover, given the record evidence, it is rea sonably probable that at least one juror would have cred ited his expert. In any event, even if a rebuttal expert testified that Pinholster suffered from antisocial personal ity disorder, this would hardly have come as a surprise to the jury. See ante, at 22 (describing Pinholster as a “psy chotic client whose performance at trial hardly endeared 36 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting him to the jury”). It is for this reason that it was espe cially important for counsel to present the available evi dence to help the jury understand Pinholster. See Sears, 6 U. S., at (slip op., at 6–7). Had counsel conducted an adequate investigation, the judge and jury would have heard credible evidence show ing that Pinholster’s criminal acts and aggressive tenden cies were “attributable to a disadvantaged background, or to emotional and mental problems.” Penry, 492 U.S., at 39 (internal quotation marks omitted). They would have learned that Pinholster had the “ ‘kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.’ ” Porter, U. S., at (slip op., at 2) (quoting 39 U.S., at 3). Applying we have repeatedly found “a reasonable probability,” 466 U.S., that the sentencer would have reached a different result had counsel presented similar evidence. See, e.g., Porter, U. S., at (slip op., at 2–3) (evi dence of the defendant’s childhood history of physical abuse, brain abnormality, limited schooling, and heroic military service); 4 U.S., at 392 (evidence of severe abuse and neglect as a child, as well as brain damage); 39 U.S., at 3 (evidence of the de fendant’s “severe privation and abuse” as a child, home lessness, and “diminished mental capacities”); Terry 29 U.S., at 39 (evidence of childhood mistreatment and neglect, head injuries, possible organic mental impairments, and borderline mental retardation). The majority does not dispute the similarity between this case and the cited cases. However, it criticizes the Court of Appeals for relying on and Terry Wil liams on the ground that we reviewed the prejudice ques tion de novo in those cases. See ante, at 3. I do not read Terry to review the prejudice question de novo.27 —————— 27 Terry held that the state court’s decision was “unreason Cite as: 63 U. S. (20) 37 SOTOMAYOR, J., dissenting More fundamentally, however, I cannot agree with the premise that “[t]hose cases offer no guidance with respect to whether a state court has unreasonably deter mined that prejudice is lacking.” Ante, at 3 (emphasis deleted). In each of these cases, we did not purport to create new law; we simply applied the same clearly estab lished precedent, to a different set of facts. Because these cases illuminate the kinds of mitigation evidence that suffice to establish prejudice under Strick land, they provide useful, but not dispositive, guidance for courts to consider when determining whether a state court has unreasonably applied In many cases, a state court presented with additional mitigation evidence will reasonably conclude that there is no “reasonable probability that, but for counsel’s unprofes sional errors, the result of the proceeding would have been different.” 466 U.S., This is not such a case. Admittedly, Pinholster unjustifiably stabbed and killed two people, and his history of violent outbursts and burglaries surely did not endear him to the jury. But the homicides did not appear premeditated. And the State’s aggravation case was no stronger than in and Terry See 4 U.S., at 37, 33 (the defendant committed murder by torture and had a significant history of violent felonies, including a rape); 29 U.S., at 4 (Rehnquist, C. J., concurring in part and dissenting in part) (the defendant had a lifetime of crime, and after the murder he “savagely beat an elderly woman,” set a home on fire, and stabbed a man (internal quotation marks omitted)). Even on the trial record, it took the jury two days to decide on a penalty. The contrast between the “not —————— able in at least two respects”: () It applied the wrong legal standard, see 29 U.S., at 397, and (2) it “failed to accord appropriate weight to the body of mitigation evidence available to trial counsel,” at 39. We did not purport to conduct de novo review. 3 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting persuasive” mitigation case put on by Pinholster’s counsel, 4 Tr. 74, and the substantial mitigation evidence at their fingertips was stark. Given these considerations, it is not a foregone conclusion, as the majority deems it, that a juror familiar with his troubled background and psychi atric issues would have reached the same conclusion regarding Pinholster’s culpability. Fairminded jurists could not doubt that, on the record before the California Supreme Court, “there [was] a reasonable probability that at least one juror would have struck a different balance.” 39 U.S., at 37. III The state-court record on its own was more than ade quate to support the Court of Appeals’ conclusion that the California Supreme Court could not reasonably have rejected Pinholster’s claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion. A At the hearing, Pinholster offered many of the same documents that were before the state habeas court. He also offered his trial attorneys’ billing records, which were before the state habeas court as part of the trial record. Of the seven lay witnesses who testified at the hearing, six had previously executed declarations in support of Pinhol ster’s state-court petition. (The seventh, Pinholster’s uncle, provided testimony cumulative of other testimony.) Two experts testified on Pinholster’s behalf; neither had presented declarations to the state habeas court. The first was Dr. Donald Olson, assistant professor of neurology and neurological sciences and director of the Pediatric Epilepsy Program at Stanford University Medical Center. It appears that Pinholster retained Dr. Olson to rebut the testimony of the expert disclosed by the State in the fed Cite as: 63 U. S. (20) 39 SOTOMAYOR, J., dissenting eral proceeding. See Decl. of Michael D. Abzug in Support of Stipulated Ex Parte Application to Continue Eviden tiary Hearing and Discovery Cut-Off and to Substitute Counsel in Pinholster v. Calderon, No. CV 9–6240–GLT (CD Cal.), p. 2. Relying in part on Pinholster’s abnormal EEG, Dr. Olson opined that Pinholster’s childhood acci dents “likely result[ed] in brain injury” and that these injuries “conferred a risk of epilepsy.” Record ER–699 to ER–700. He concluded that it was reasonably probable that Pinholster had suffered from partial epilepsy since at least 96 and had suffered from brain injury since at least 964. at ER–70. Pinholster’s second expert was Dr. Sophia Vinogradov, associate professor of psychiatry at the University of California, San Francisco. Dr. Vinogradov’s testimony was based on essentially the same facts as Dr. Woods’ and Dr. Stalberg’s state-court declarations. She highlighted Pinholster’s childhood head traumas, history of epilepsy, abusive and neglected upbringing, history of substance abuse, and bizarre behavior on the night of the homicides. She opined that his aggressive behavior resulted from childhood head traumas: “All data indicates that there were severe effects of the two serious head injuries sustained at age 2 and age 3, with evidence for behavioral changes related to dysfunction of frontal cortex: severe attentional and learning problems in childhood, hyperactivity, aggres sivity, impulsivity, social-emotional impairment, sei zure disorder, and explosive dyscontrol.” at ER– 73. She also opined that, right before the homicides, Pinhol ster was in an “apparently hallucinatory state [that] was likely the result of his intoxication with multiple sub stances.” at ER–707 The State presented two experts: Dr. Stalberg, the 40 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting psychiatrist who had examined Pinholster in the middle of trial,2 and Dr. David Rudnick. Although Dr. Stalberg maintained that Pinholster suffered from antisocial per sonality disorder, which was his original diagnosis in the middle of trial, he again emphasized that there was “vo luminous” and “compelling” mitigation evidence that had not previously been made available to him or presented to the jury. at ER–926, ER–93. He stated that conver sations with Pinholster’s family revealed that he and his siblings were “raised like animals, wild animals,” at ER–94, and he opined that Pinholster’s upbringing was a risk factor for antisocial personality disorder. See (Pinholster’s upbringing “would speak volumes, looking at it from a mitigation point of view”). And he agreed that the mitigation evidence presented at trial was “profoundly misleading.” at ER–966. Dr. Rudnick testified that Pinholster suffered from antisocial personality disorder. The State also introduced into evidence the 97 proba tion report that Pinholster’s counsel had in their posses sion at the time of his trial. The report demonstrated that counsel were aware that Pinholster was in classes for educationally handicapped children, that he was commit ted to a state hospital for emotionally handicapped chil dren, and that he suffered two “severe head injuries.” at SER–243. B Much of the evidence presented at the federal hearing —————— 2 Before the hearing, Dr. Stalberg had opined that Pinholster was “substantially impaired by a bipolar mood disorder operating synergis tically with intoxication and a seizure disorder at the time the crime was committed.” Record ER–7. At a prehearing deposition, however, Dr. Stalberg revised his opinion and stated that he continued to believe that Pinholster suffered from psychopathic personality traits. After the deposition, Pinholster elected to proceed with a different expert, pre sumably in light of Dr. Stalberg’s unexpected change in position. The State then retained Dr. Stalberg as its own expert. Cite as: 63 U. S. (20) 4 SOTOMAYOR, J., dissenting was duplicative of the evidence submitted to the California Supreme Court. The additional evidence presented at the hearing only confirmed that the California Supreme Court could not reasonably have rejected Pinholster’s claim.29 For example, the probation report presented by the State confirmed that counsel had in their possession in formation that would have led any reasonable attorney “to investigate further.” 39 U.S., at 27. Counsel nevertheless took no action to investigate these leads. Pinholster’s experts opined that his childhood head traumas likely resulted in brain injury and conferred a risk of epilepsy. Although the State presented testimony that Pinholster had antisocial personality disorder, it was not clear error for the District Court to conclude that jurors could have credited Pinholster’s experts. Even the —————— 29 The State argues that the District Court was not entitled to rely on the evidence adduced at the hearing because Pinholster was not dili gent in developing his claims in state court and the hearing was there fore barred by 2 U.S. C. This argument is somewhat imprecise. Pinholster’s allegations in his amended federal petition were “identical” to the allegations he presented to the California Supreme Court, ante, at 6, and he diligently requested a hearing in state court. The State presumably means to argue that Pinholster’s new expert testimony changed “the factual basis” of his claim such that, by the time of the evidentiary hearing, he no longer satisfied However, at oral argument, the State suggested that Pinholster was presenting an altogether new claim in the federal court. See Tr. of Oral Arg. If that is the case, does not apply at all, and the State should be arguing lack of exhaustion or procedural default. I do not understand Pinholster to have presented a new claim to the District Court. In any event, Pinholster satisfied in this case. He made “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Michael 29 U.S., at 43. His experts relied on the very same facts and evidence. I cannot read to impose a strict requirement that petitioners must use the same experts they presented to the state court. This rule would result in numerous practical problems, for example in the case of the unanticipated death of an expert. 42 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting State’s own expert, Dr. Stalberg, testified to the “volumi nous” mitigation evidence in Pinholster’s case. Record ER– 926. In sum, the evidence confirmed what was already ap parent from the state-court record: Pinholster’s counsel failed to conduct an adequate mitigation investigation, and there was a reasonable probability that at least one juror confronted with the “voluminous” mitigating evi dence counsel should have discovered would have voted to spare Pinholster’s life. Accordingly, whether on the basis of the state- or federal-court record, the courts below correctly concluded that Pinholster had shown that the California Supreme Court’s decision reflected an unrea sonable application of30 * * * I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present that evidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffective assistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would have discovered. I respectfully dissent. —————— 30 The State’s challenge in this Court is limited to the questions whether the Federal District Court was entitled to consider the addi tional evidence in the analysis and whether Pinholster satisfied on the basis of the state-court record. It has not challenged the District Court’s ultimate conclusion that Pinholster had proved that he was “in custody in violation of the Constitution or laws or treaties of the United States.” §224(a)

Justice White

majority

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio

https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/

https://www.courtlistener.com/api/rest/v3/clusters/111434/

1984-102

Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J., 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements. I Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted *630 of DRUNK DRIVING."[1] The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad. Appellant's second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device.[2] The advertisement featured a line drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then related the following information: *631 "The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients." The ad concluded with the name of appellant's law firm, its address, and a phone number that the reader might call for "free information." The advertisement was successful in attracting clients: appellant received well over 200 inquiries regarding the advertisement, and he initiated lawsuits on behalf of 106 of the women who contacted him as a result of the advertisement. The ad, however, also aroused the interest of the Office of Disciplinary Counsel. On July 29, 1982, the Office filed a complaint against appellant charging him with a number of disciplinary violations arising out of both the drunken driving and Dalkon Shield advertisements. The complaint, as subsequently amended, alleged that the drunken driving ad violated Ohio Disciplinary Rule 2-101(A) in that it was "false, fraudulent, misleading, and deceptive to the public"[3] because it offered representation on a contingent-fee basis in a criminal case — an offer that could not be carried out under Disciplinary Rule 2-106(C). With *632 respect to the Dalkon Shield advertisement, the complaint alleged that in running the ad and accepting employment by women responding to it, appellant had violated the following Disciplinary Rules: DR 2-101(B), which prohibits the use of illustrations in advertisements run by attorneys, requires that ads by attorneys be "dignified," and limits the information that may be included in such ads to a list of 20 items;[4]*633 DR 2-103(A), which prohibits an attorney from "recommend[ing] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer"; and DR 2-104(A), which provides (with certain exceptions not applicable here) that "[a] lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice." The complaint also alleged that the advertisement violated DR 2-101(B)(15), which provides that any advertisement that mentions contingent-fee rates must "disclos[e] whether percentages are computed before or after deduction of court costs and expenses," and that the ad's failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement "deceptive" in violation of DR 2-101(A). The complaint did not allege that the Dalkon Shield advertisement was false or deceptive in any respect other than its *634 omission of information relating to the contingent-fee arrangement; indeed, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The charges against appellant were heard by a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. Appellant's primary defense to the charges against him was that Ohio's rules restricting the content of advertising by attorneys were unconstitutional under this Court's decisions in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and In re R. M. J., 455 U.S. 191 (1982). In support of his contention that the State had not provided justification for its rules sufficient to withstand the First Amendment scrutiny called for by those decisions, appellant proffered the testimony of expert witnesses that unfettered advertising by attorneys was economically beneficial and that appellant's advertising in particular was socially valuable in that it served to inform members of the public of their legal rights and of the potential health hazards associated with the Dalkon Shield. Appellant also put on the stand two of the women who had responded to his advertisements, both of whom testified that they would not have learned of their legal claims had it not been for appellant's advertisement. The panel found that appellant's use of advertising had violated a number of Disciplinary Rules. The panel accepted the contention that the drunken driving advertisement was deceptive, but its reasoning differed from that of the Office of Disciplinary Counsel: the panel concluded that because the advertisement failed to mention the common practice of plea bargaining in drunken driving cases, it might be deceptive to potential clients who would be unaware of the likelihood that they would both be found guilty (of a lesser offense) and be liable for attorney's fees (because they had not been convicted of drunken driving). The panel also found that the use of an illustration in appellant's Dalkon Shield advertisement *635 violated DR 2-101(B), that the ad's failure to disclose the client's potential liability for costs even if her suit were unsuccessful violated both DR 2-101(A) and DR 2-101 (B)(15), that the advertisement constituted self-recommendation in violation of DR 2-103(A), and that appellant's acceptance of offers of employment resulting from the advertisement violated DR 2-104(A).[5] The panel rejected appellant's arguments that Ohio's regulations regarding the content of attorney advertising were unconstitutional as applied to him. The panel noted that neither Bates nor In re R. M. J. had forbidden all regulation of attorney advertising and that both of those cases had involved advertising regulations substantially more restrictive than Ohio's. The panel also relied heavily on Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), in which this Court upheld Ohio's imposition of discipline on an attorney who had engaged in in-person solicitation. The panel apparently concluded that the interests served by the application of Ohio's rules to advertising that contained legal advice and solicited clients to pursue a particular legal claim were as substantial as the interests at stake in Ohralik. Accordingly, the panel rejected appellant's constitutional defenses and recommended that he be publicly reprimanded for his violations. The Board of Commissioners adopted the panel's findings in full, but recommended the sanction of indefinite suspension from the practice of law rather than the more lenient punishment proposed by the panel. The Supreme Court of Ohio, in turn, adopted the Board's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel. 10 Ohio St. 3d 44, 461 N.E.2d 883 (1984). The court also agreed with the Board that the application of Ohio's rules to appellant's advertisements did not offend the First Amendment. The *636 court pointed out that Bates and In re R. M. J. permitted regulations designed to prevent the use of deceptive advertising and that R. M. J. had recognized that even non-deceptive advertising might be restricted if the restriction was narrowly designed to achieve a substantial state interest. The court held that disclosure requirements applicable to advertisements mentioning contingent-fee arrangements served the permissible goal of ensuring that potential clients were not misled regarding the terms of the arrangements. In addition, the court held, it was "allowable" to prevent attorneys form claiming expertise in particular fields of law in the absence of standards by which such claims might be assessed, and it was "reasonable" to preclude the use of illustrations in advertisements and to prevent attorneys from offering legal advice in their advertisements, although the court did not specifically identify the interests served by these restrictions. Having determined that appellant's advertisements violated Ohio's Disciplinary Rules and that the First Amendment did not forbid the application of those rules to appellant, the court concluded that appellant's conduct warranted a public reprimand. Contending that Ohio's Disciplinary Rules violate the First Amendment insofar as they authorize the State to discipline him for the content of his Dalkon Shield advertisement, appellant filed this appeal. Appellant also claims that the manner in which he was disciplined for running his drunken driving advertisement violated his right to due process. We noted probable jurisdiction, 469 U.S. 813 (1984), and now affirm in part and reverse in part.[6] *637 II There is no longer any room to doubt that what has come to be known as "commercial speech" is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded "noncommercial speech." Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); In re R. M. J., 455 U.S. 191 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980). More subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech, but it is clear enough that the speech at issue in this case — advertising pure and simple — falls within those bounds. Our commercial speech doctrine rests heavily on "the `common-sense' distinction between speech proposing a commercial transaction . . . and other varieties of speech," Ohralik v. Ohio State Bar Assn., supra, at 455-456, and appellant's advertisements undeniably propose a commercial transaction. Whatever else the category of commercial speech may encompass, see Central Hudson Gas & Electric Co. v. Public Service Comm'n of New York, supra, it must include appellant's advertisements.[7] *638 Our general approach to restrictions on commercial speech is also by now well settled. The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U.S. 1 (1979), or that proposes an illegal transaction, see Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973). Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Central Hudson Gas & Electric, supra, at 566. Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on price advertising by attorneys and rules preventing attorneys from using non-deceptive terminology to describe their fields of practice are impermissible, see Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In re R. M. J., supra, but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible, see Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978). To resolve this appeal, we must apply the teachings of these cases to three separate forms of regulation Ohio has imposed on advertising by its attorneys: prohibitions on soliciting legal business through advertisements containing advice and information regarding specific legal problems; restrictions on the use of illustrations in advertising by lawyers; and disclosure requirements relating to the terms of contingent fees.[8] *639 III We turn first to the Ohio Supreme Court's finding that appellant's Dalkon Shield advertisement (and his acceptance of employment resulting from it) ran afoul of the rules against self-recommendation and accepting employment resulting from unsolicited legal advice. Because all advertising is at least implicitly a plea for its audience's custom, a broad reading of the rules applied by the Ohio court (and particularly the rule against self-recommendation) might suggest that they forbid all advertising by attorneys — a result obviously not in keeping with our decisions in Bates and In re R. M. J. But the Ohio court did not purport to give its rules such a broad reading: it held only that the rules forbade soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem. The interest served by the application of the Ohio self-recommendation and solicitation rules to appellant's advertisement is not apparent from a reading of the opinions of the Ohio Supreme Court and its Board of Commissioners. The advertisement's information and advice concerning the Dalkon Shield were, as the Office of Disciplinary Counsel stipulated, neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that *640 lawsuits alleging injuries caused by the Dalkon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in other such litigation.[9] Rather, the advertisement reported the indisputable fact that the Dalkon Shield has spawned an impressive number of lawsuits[10] and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred — advice that seems completely unobjectionable in light of the trend in many States toward a "discovery rule" for determining when a cause of action for latent injury or disease accrues.[11]*641 The State's power to prohibit advertising that is "inherently misleading," see In re R. M. J., 455 U. S., at 203, thus cannot justify Ohio's decision to discipline appellant for running advertising geared to persons with a specific legal problem. Because appellant's statements regarding the Dalkon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest. The extensive citations in the opinion of the Board of Commissioners to our opinion in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), suggest that the Board believed that the application of the rules to appellant's advertising served the same interests that this Court found sufficient to justify the ban on in-person solicitation at issue in Ohralik. We cannot agree. Our decision in Ohralik was largely grounded on the substantial differences between face-to-face solicitation and the advertising we had held permissible in Bates. In-person solicitation by a lawyer, we concluded, was a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. Ohralik, 436 U. S., at 464-465. In addition, we noted that in-person solicitation presents unique regulatory difficulties because it is "not visible or otherwise open to public scrutiny." Id., at 466. These unique features of in-person solicitation by lawyers, we held, justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain, but we were careful to point out that "in-person solicitation of *642 professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services." Id., at 455. It is apparent that the concerns that moved the Court in Ohralik are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertisement — and print advertising generally — poses much less risk of over-reaching or undue influence. Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. In addition, a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation. Thus, a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in Ohralik cannot justify the discipline imposed on appellant for the content of his advertisement. Nor does the traditional justification for restraints on solicitation — the fear that lawyers will "stir up litigation" — justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness. "[A]s a litigant," Judge Learned Hand once observed, "I should dread a lawsuit beyond almost anything else short of sickness and death." L. Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in *643 3 Association of the Bar of the City of New York, Lectures on Legal Topics 89, 105 (1926). But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: "we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." Bates v. State Bar of Arizona, 433 U. S., at 376. That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits. The State does not, however, argue that the encouragement of litigation is inherently evil, nor does it assert an interest in discouraging the particular form of litigation that appellant's advertising solicited. Rather, the State's position is that although appellant's advertising may itself have been harmless — may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware — the State's prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants. Advertising by attorneys, the State claims, presents regulatory difficulties that are different in kind from those presented by other forms of advertising. *644 Whereas statements about most consumer products are subject to verification, the indeterminacy of statements about law makes it impractical if not impossible to weed out accurate statements from those that are false or misleading. A prophylactic rule is therefore essential if the State is to vindicate its substantial interest in ensuring that its citizens are not encouraged to engage in litigation by statements that are at best ambiguous and at worst outright false. The State's argument that it may apply a prophylactic rule to punish appellant notwithstanding that his particular advertisement has none of the vices that allegedly justify the rule is in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State's purposes. See Central Hudson Gas & Electric, 447 U. S., at 565, 569-571. Indeed, in In re R. M. J. we went so far as to state that "the States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive." 455 U.S., at 203. The State's argument, then, must be that this dictum is incorrect — that there are some circumstances in which a prophylactic rule is the least restrictive possible means of achieving a substantial governmental interest. Cf. Ohralik v. Ohio State Bar Assn., 436 U. S., at 467. We need not, however, address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substantial governmental interest. The State's contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the problems presented by advertising generally is unpersuasive. The State's argument proceeds from the premise that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are *645 truthful and helpful, much more so than is the case with other goods or services.[12] This notion is belied by the facts before us: appellant's statements regarding Dalkon Shield litigation were in fact easily verifiable and completely accurate. Nor is it true that distinguishing deceptive from nondeceptive claims in advertising involving products other than legal services is a comparatively simple and straightforward process. A brief survey of the body of case law that has developed as a result of the Federal Trade Commission's efforts to carry out its mandate under § 5 of the Federal Trade Commission Act to eliminate "unfair or deceptive acts or practices in . . . commerce," 15 U.S. C. § 45(a)(1), reveals that distinguishing deceptive from nondeceptive advertising in virtually any field of commerce may require resolution of exceedingly complex and technical factual issues and the consideration of nice questions of semantics. See, e. g., Warner-Lambert Co. v. FTC, 183 U. S. App. D. C. 230, 562 F.2d 749 (1977); National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (CA7 1977). In short, assessment of the validity of legal advice and information contained in attorneys' advertising is *646 not necessarily a matter of great complexity; nor is assessing the accuracy or capacity to deceive of other forms of advertising the simple process the State makes it out to be. The qualitative distinction the State has attempted to draw eludes us.[13] Were we to accept the State's argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful. The value of the information presented in appellant's advertising is no less than that contained in other forms of advertising — indeed, insofar as appellant's advertising tended to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it was undoubtedly more valuable than many other forms of advertising. Prophylactic restraints that would be *647 unacceptable as applied to commercial advertising generally are therefore equally unacceptable as applied to appellant's advertising. An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients. IV The application of DR 2-101(B)'s restriction on illustrations in advertising by lawyers to appellant's advertisement fails for much the same reasons as does the application of the self-recommendation and solicitation rules. The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test. Because the illustration for which appellant was disciplined is an accurate representation of the Dalkon Shield and has no features that are likely to deceive, mislead, or confuse the reader, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means. The text of DR 2-101(B) strongly suggests that the purpose of the restriction on the use of illustrations is to ensure that attorneys advertise "in a dignified manner." There is, of course, no suggestion that the illustration actually used by appellant was undignified; thus, it is difficult to see how the application of the rule to appellant in this case directly advances the State's interest in preserving the dignity of attorneys. More fundamentally, although the State undoubtedly *648 has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. As we held in Carey v. Population Services International, 431 U.S. 678, 701 (1977), the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity. In its arguments before this Court, the State has asserted that the restriction on illustrations serves a somewhat different purpose, akin to that supposedly served by the prohibition on the offering of legal advice in advertising. The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, once again, the State's argument is that its purposes can only be served through a prophylactic rule. We are not convinced. The State's arguments amount to little more than unsupported assertions: nowhere does the State cite any evidence or authority of any kind for its contention that the potential abuses associated with the use of illustrations in attorneys' advertising cannot be combated by any means short of a blanket ban. Moreover, none of the *649 State's arguments establish that there are particular evils associated with the use of illustrations in attorneys' advertisements. Indeed, because it is probably rare that decisions regarding consumption of legal services are based on a consumer's assumptions about qualities of the product that can be represented visually, illustrations in lawyer's advertisements will probably be less likely to lend themselves to material misrepresentations than illustrations in other forms of advertising. Thus, acceptance of the State's argument would be tantamount to adoption of the principle that a State may prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative. But as we stated above, broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burden-some that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. The experience of the FTC is, again, instructive. Although that agency has not found the elimination of deceptive uses of visual media in advertising to be a simple task, neither has it found the task an impossible one: in many instances, the agency has succeeded in identifying and suppressing visually deceptive advertising. See, e. g., FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965). See generally E. Kintner, A Primer on the Law of Deceptive Practices 158-173 (2d ed. 1978). Given the possibility of policing the use of illustrations in advertisements on a case-by-case basis, the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration. *650 V Appellant contends that assessing the validity of the Ohio Supreme Court's decision to discipline him for his failure to include in the Dalkon Shield advertisement the information that clients might be liable for significant litigation costs even if their lawsuits were unsuccessful entails precisely the same inquiry as determining the validity of the restrictions on advertising content discussed above. In other words, he suggests that the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive or that the disclosure requirement serves some substantial governmental interest other than preventing deception; moreover, he contends that the State must establish that the disclosure requirement directly advances the relevant governmental interest and that it constitutes the least restrictive means of doing so. Not surprisingly, appellant claims that the State has failed to muster substantial evidentiary support for any of the findings required to support the restriction. Appellant, however, overlooks material differences between disclosure requirements and outright prohibitions on speech. In requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present. We have, to be sure, held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech. See, e. g., Wooley v. Maynard, 430 U.S. 705 (1977); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Indeed, in West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), the Court went so far as to state that "involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." Id., at 633. *651 But the interests at stake in this case are not of the same order as those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 319 U.S., at 642. The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, see Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, "warning[s] or disclaimer[s] might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception." In re R. M. J., 455 U. S., at 201. Accord, Central Hudson Gas & Electric, 447 U. S., at 565; Bates v. State Bar of Arizona, 433 U. S., at 384; Virginia Pharmacy Bd., supra, at 772, n. 24. We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.[14] *652 The State's application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant's advertisement informed the public that "if there is no recovery, no legal fees are owed by our clients." The advertisement makes no mention of the distinction between "legal fees" and "costs," and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as "fees" and "costs" — terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require *653 the State to "conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead." FTC v. Colgate-Palmolive Co., 380 U. S., at 391-392. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed.[15] *654 VI Finally, we address appellant's argument that he was denied procedural due process by the manner in which discipline was imposed on him in connection with his drunken driving advertisement. Appellant's contention is that the theory relied on by the Ohio Supreme Court and its Board of Commissioners as to how the advertisement was deceptive was different from the theory asserted by the Office of Disciplinary Counsel in its complaint.[16] We cannot agree that this discrepancy violated the constitutional guarantee of due process. Under the law of Ohio, bar discipline is the responsibility of the Ohio Supreme Court. Ohio Const., Art. IV, § 2(B)(1)(g). The Board of Commissioners on Grievances and Discipline formally serves only as a body that recommends discipline to the Supreme Court; it has no authority to impose discipline itself. See Govt. Bar Rule V(2), (16)-(20). That the Board of Commissioners chose to make its recommendation of discipline on the basis of reasoning different from that of the Office of Disciplinary Counsel is of little moment: what is important is that the Board's recommendations put appellant on notice of the charges he had to answer to the satisfaction of the Supreme Court of Ohio. Appellant does not contend that he was afforded no opportunity to respond to the Board's recommendation; indeed, the Ohio rules appear to provide ample opportunity for response to Board recommendations, and it appears that appellant availed himself of that opportunity.[17]*655 The notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process.[18] VII The Supreme Court of Ohio issued a public reprimand incorporating by reference its opinion finding that appellant had violated Disciplinary Rules 2-101(A), 2-101(B), 2-101 (B)(15), 2-103(A), and 2-104(A). That judgment is affirmed to the extent that it is based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement. But insofar as the reprimand was based on appellant's use of an *656A illustration in his advertisement in violation of DR 2-101(B) and his offer of legal advice in his advertisement in violation of DR 2-103(A) and 2-104(A), the judgment is reversed. It is so ordered. JUSTICE POWELL took no part in the decision of this case. *656B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part, concurring in the judgment in part, and dissenting in part. I fully agree with the Court that a State may not discipline attorneys who solicit business by publishing newspaper advertisements that contain "truthful and nondeceptive information and advice regarding the legal rights of potential clients" and "accurate and nondeceptive illustration[s]." Ante, at 647, 649. I therefore join Part I-IV of the Court's opinion, and I join the Court's judgment set forth in Part VII to the extent it reverses the Supreme Court of Ohio's public reprimand of the appellant Philip Q. Zauderer for his violations of Disciplinary Rules 2-101(B), 2-103(A), and 2-104(A). With some qualifications, I also agree with the conclusion in Part V of the Court's opinion that a State may impose commercial-advertising disclosure requirements that are "reasonably related to the State's interest in preventing deception of consumers." Ante, at 651. I do not agree, however, that the State of Ohio's vaguely expressed disclosure requirements fully satisfy this standard, and in any event I believe that Ohio's punishment of Zauderer for his alleged infractions of those requirements violated important due process and First Amendment guarantees. In addition, I believe the manner in which Ohio has punished Zauderer for publishing the "drunk driving" advertisement violated fundamental principles of procedural due process. I therefore concur in part and dissent in part from Part V of the Court's opinion, dissent from Part VI, and dissent from the judgment set forth in Part VII insofar as it affirms the Supreme Court *657 of Ohio's public reprimand "based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement." Ante, at 655. I A The Court concludes that the First Amendment's protection of commercial speech is satisfied so long as a disclosure requirement is "reasonably related" to preventing consumer deception, and it suggests that this standard "might" be violated if a disclosure requirement were "unjustified" or "unduly burdensome." Ante, at 651. I agree with the Court's somewhat amorphous "reasonable relationship" inquiry only on the understanding that it comports with the standards more precisely set forth in our previous commercial-speech cases. Under those standards, regulation of commercial speech — whether through an affirmative disclosure requirement or through outright suppression[1] — is "reasonable" only *658 to the extent that a State can demonstrate a legitimate and substantial interest to be achieved by the regulation. In re R. M. J., 455 U.S. 191, 203 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 564 (1980). Moreover, the regulation must directly advance the state interest and "may extend only as far as the interest it serves." Id., at 565. See also id., at 564 ("[T]he regulatory technique must be in proportion to [the State's] interest"). Where the State imposes regulations to guard against "the potential for deception and confusion" in commercial speech, those regulations "may be no broader than reasonably necessary to prevent the deception." In re R. M. J., supra, at 203. See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772, n. 24 (1976) (disclosure requirements are permissible only to the extent they "are necessary to prevent [the advertisement from] being deceptive"); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977) (States may require "some limited supplementation . . . so as to assure that the consumer is not misled") (emphasis added).[2] Because of the First Amendment values at stake, courts must exercise careful scrutiny in applying these standards. Thus a State may not rely on "highly speculative" or "tenuous" *659 arguments in carrying its burden of demonstrating the legitimacy of its commercial-speech regulations. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, supra, at 569. Where a regulation is addressed to allegedly deceptive advertising, the State must instead demonstrate that the advertising either "is inherently likely to deceive" or must muster record evidence showing that "a particular form or method of advertising has in fact been deceptive," In re R. M. J., supra, at 202, and it must similarly demonstrate that the regulations directly and proportionately remedy the deception. Where States have failed to make such showings, we have repeatedly struck down the challenged regulations.[3] As the Court acknowledges, it is "somewhat difficult" to apply these standards to Ohio's disclosure requirements "in light of the Ohio court's failure to specify precisely what disclosures were required." Ante, at 653, n. 15. It is also somewhat difficult to determine precisely what disclosure requirements the Court approves today. The Supreme Court of Ohio appears to have imposed three overlapping requirements, each of which must be analyzed under the First *660 Amendment standards set forth above. First, the court concluded that "a lawyer advertisement which refers to contingent fees" should indicate whether "additional costs . . . might be assessed the client." 10 Ohio St. 3d 44, 48, 461 N.E.2d 883, 886 (1984). The report of the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court explained that such a requirement is necessary to guard against "the impression that if there were no recovery, the client would owe nothing." App. to Juris. Statement 14a. I agree with the Court's conclusion that, given the general public's unfamiliarity with the distinction between fees and costs, a State may require an advertising attorney to include a costs disclaimer so as to avoid the potential for misunderstanding, ante, at 653 — provided the required disclaimer is "no broader than reasonably necessary to prevent the deception," In re R. M. J., supra, at 203. Second, the report and opinion provide that an attorney advertising his availability on a contingent-fee basis must "specifically expres[s]" his rates. 10 Ohio St. 3d, at 48, 461 N. E. 2d, at 886; see also App. to Juris. Statement 14a. The Court's analysis of this requirement — which the Court characterizes as a "suggest[ion]," ante, at 653, n. 15 — is limited to the passing observation that the requirement does not "see[m] intrinsically burdensome," ibid. The question of burden, however, is irrelevant unless the State can first demonstrate that the rate-publication requirement directly and proportionately furthers a "substantial interest." In re R. M. J., 455 U. S., at 203. Yet an attorney's failure to specify a particular percentage rate when advertising that he accepts cases on a contingent-fee basis can in no way be said to be "inherently likely to deceive," id., at 202, and the voluminous record in this case fails to reveal a single instance suggesting that such a failure has in actual experience proved deceptive.[4] Nor has Ohio at any point identified any other *661 "substantial interest" that would be served by such a requirement. Although a State might well be able to demonstrate that rate publication is necessary to prevent deception or to serve some other substantial interest, it must do so pursuant to the carefully structured commercial-speech standards in order to ensure the full evaluation of competing considerations and to guard against impermissible discrimination among different categories of commercial speech. See n. 7, infra.[5] Ohio has made no such demonstration here. Third, the Supreme Court of Ohio agreed with the Board of Commissioners that Zauderer had acted unethically "by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement." 10 Ohio St. 3d, at 47, 461 *662 N. E. 2d, at 886 (emphasis added); see App. to Juris. Statement 14a, 19a. The record indicates that Zauderer enters into a comprehensive contract with personal injury clients, one that spells out over several pages the various terms and qualifications of the contingent-fee relationship.[6] If Ohio *663 seriously means to require Zauderer "fully to disclose the[se] terms," this requirement would obviously be so "unduly burdensome" as to violate the First Amendment. Ante, at 651. Such a requirement, compelling the publication of detailed fee information that would fill far more space than the advertisement itself, would chill the publication of protected commercial speech and would be entirely out of proportion *664 to the State's legitimate interest in preventing potential deception. See In re R. M. J., 455 U. S., at 203; Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 564; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772, n. 24. Given the Court's explicit endorsement of Ohio's other disclosure provisions, I can only read the Court's telling silence respecting this apparent requirement as an implicit acknowledgment that it could not possibly pass constitutional muster.[7] B Ohio's glaring failure "to specify precisely what disclosures were required," ante, at 653, n. 15, is relevant in another important respect. Even if a State may impose particular disclosure requirements, an advertiser may not be punished for failing to include such disclosures "unless his failure is in violation of valid state statutory or decisional law requiring the [advertiser] to label or take other precautions to prevent confusion of customers." Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 238-239 (1964). Whether or not Ohio may properly impose the disclosure requirements discussed above, it failed to provide Zauderer with sufficient notice that he was expected to include such disclosures in his Dalkon Shield advertisement. The State's punishment of Zauderer therefore violated basic due process and First Amendment guarantees. *665 Neither the published rules, state authorities, nor governing precedents put Zauderer on notice of what he was required to include in the advertisement. As the Court acknowledges, Ohio's Disciplinary Rules do not "on [their] face require any disclosures except when an advertisement mentions contingent-fee rates — which appellant's advertisement did not do." Ante, at 653, n. 15. In light of the ambiguity of the rules, Zauderer contracted the governing authorities before publishing the advertisement and unsuccessfully sought to determine whether it would be ethically objectionable. He met with representatives of the Office of Disciplinary Counsel, reviewed the advertisement with them, and asked whether the Office had any objections or recommendations concerning the form or content of the advertisement. The Office refused to advise Zauderer whether "he should or should not publish the advertisement," informing him that it "does not have authority to issue advisory opinions nor to approve or disapprove legal service advertisements." Stipulation of Fact Between Relator and Respondent ¶¶ 22, 27, App. 16. And even after full disciplinary proceedings, Ohio still has failed, as the Court acknowledges, "to specify precisely what disclosures were required," and therefore to specify precisely how Zauderer violated the law and what reasonable precautions he can take to avoid future disciplinary actions. Ante, at 653, n. 15. A regulation that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391 (1926). The Fourteenth Amendment's Due Process Clause "insist[s] that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). This requirement "applies with particular force in review of laws dealing with speech," Hynes *666 v. Mayor of Oradell, 425 U.S. 610, 620 (1976); "a man may be the less required to act at his peril here, because the free dissemination of ideas may be the loser," Smith v. California, 361 U.S. 147, 151 (1959).[8] These guarantees apply fully to attorney disciplinary proceedings. In re Ruffalo, 390 U.S. 544, 550 (1968). Given the traditions of the legal profession and an attorney's specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for "conduct which all responsible attorneys would recognize as improper for a member of the profession." Id., at 555 (WHITE, J., concurring in result).[9] But where "[t]he appraisal of [an attorney's] conduct is one about which reasonable men differ, not one immediately apparent to any scrupulous citizen who confronts the question," and where the State has not otherwise proscribed the conduct in reasonably clear terms, the Due Process Clause forbids punishment of the attorney for that conduct. Id., at 555-556.[10] *667 I do not believe that Zauderer's Dalkon Shield advertisement can be said to be so obviously misleading as to justify punishment in the absence of a reasonably clear contemporaneous rule requiring the inclusion of certain disclaimers. The advertisement's statement that "[i]f there is no recovery, no legal fees are owed by our clients" was accurate on its face, and "[t]here is nothing in the record to indicate that the inclusion of this information was misleading" in actual practice because of the failure to include a costs disclaimer. In re R. M. J., 455 U. S., at 205-206.[11] Moreover, although the statement might well be viewed by many attorneys as carrying the potential for deception, the Office of Disciplinary Counsel itself stipulated that "[t]he Dalkon Shield advertisement published by [Zauderer] does not contain a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." Stipulation of Fact Between Relator and Respondent ¶ 30, App. 17. Several other States have approved the publication of Dalkon Shield advertisements containing the identical no-legal-fees statement, without even a suggestion that the statement might be deceptive.[12]*668 And the Office of Disciplinary Counsel's refusal to respond to Zauderer's prepublication inquiries concerning the propriety of the advertisement wholly undermines one of the basic justifications for allowing punishment for violations of imprecise commercial regulations — that a businessperson can clarify the meaning of an arguably vague regulation by consulting with government administrators.[13] Although I agree that a State may upon a proper showing require a costs disclaimer as a prophylactic measure to guard against potential deception, see supra, at 660, and may thereafter discipline attorneys who fail to include such disclaimers, Ohio had imposed no such requirement at the time Zauderer published the advertisement, as the Court acknowledges, ante, at 653, n. 15. The State instead has punished Zauderer for violating requirements that did not exist prior to this disciplinary proceeding. The Court appears to concede these serious problems, noting that "it may well be that for Ohio actually to disbar an attorney on the basis of its disclosure requirements as they have been worked out to this point would raise significant due process concerns." Ibid. (emphasis added). The Court *669 "see[s] no infirmity" in this case, however, because the Supreme Court of Ohio publicly reprimanded Zauderer rather than disbarring him. Ante, at 654, n. 15. This distinction is thoroughly unconvincing. When an attorney's constitutional rights have been violated, we have not hesitated in the past to reverse disciplinary sanctions that were even less severe than a public reprimand.[14] Moreover, a public reprimand in Ohio exacts a potentially severe deprivation of liberty and property interests that are fully protected by the Due Process Clause. The reprimand brands Zauderer as an unethical attorney who has violated his solemn oath of office and committed a "willful breach" of the Code of Professional Responsibility, and it has been published in statewide professional journals and the official reports of the Ohio Supreme Court.[15] This Court's casual indifference to the gravity of this injury inflicted on an attorney's good name demeans the entire legal profession.[16] In addition, under Ohio law "[a] person who has been . . . publicly reprimanded for misconduct, upon being found guilty of subsequent misconduct, shall be suspended for an indefinite period from the practice of law or permanently disbarred. . . ." Govt. Bar Rule V(7). In light of Ohio's vague rules, the governing authorities' refusal to provide clarification and *670 guidance to Zauderer, and the Ohio Supreme Court's "failure to specify precisely what disclosures [are] required," ante, at 653, n. 15, Zauderer will hereafter publish advertisements mentioning contingent fees only at his peril. No matter what disclaimers he includes, Ohio may decide after the fact that further information should have been included and might, under the force of its rules, attempt to suspend him indefinitely from his livelihood. Such a potential trap for an unwary attorney acting in good faith not only works a significant due process deprivation, but also imposes an intolerable chill upon the exercise of First Amendment rights. See supra, at 665-666, and n. 8.[17] II The Office of Disciplinary Counsel charged that Zauderer's drunken driving advertisement was deceptive because it proposed a contingent fee in a criminal case — an unlawful arrangement under Ohio law. Amended Complaint ¶¶ 3-7, App. 22-23. Zauderer defended on the ground that the offer of a refund did not constitute a proposed contingent fee. This was the sole issue concerning the drunken driving advertisement that the Office complained of, and the evidence and arguments presented to the Board of Commissioners were limited to this question. The Board, however, did not *671 even mention the contingent-fee issue in its certified report. Instead, it found the advertisement "misleading and deceptive" on the basis of a completely new theory — that as a matter of "general knowledge" as discerned from certain "Municipal Court reports," drunken driving charges are "in many cases . . . reduced and a plea of guilty or no contest to a lesser included offense is entered and received by the court," so that in such circumstances "the legal fee would not be refundable." App. to Juris. Statement 11a. Although Zauderer argued before the Supreme Court of Ohio that this theory had never been advanced by the Office of Disciplinary Counsel, that he had never had any opportunity to object to the propriety of judicial notice or to present opposing evidence, and that there was no evidence connecting him to the alleged practice, the court adopted the Board's findings without even acknowledging his objections. 10 Ohio St. 3d, at 48, 461 N.E.2d, at 886. Zauderer of course might not ultimately be able to disprove the Board's theory. The question before the Court, however, is not one of prediction but one of process. "A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence." In re Oliver, 333 U.S. 257, 273 (1948). Under the Due Process Clause, "reasonable notice" must include disclosure of "the specific issues [the party] must meet," In re Gault, 387 U.S. 1, 33-34 (1967) (emphasis added), and appraisal of "the factual material on which the agency relies for decision so that he may rebut it," Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, n. 4 (1974). These guarantees apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S. 511, 516 (1967). Where there is an "absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges," so that the attorney is not given a meaningful opportunity to present evidence in his defense, the proceedings *672 violate due process. In re Ruffalo, 390 U. S., at 552 (emphasis added).[18] The Court acknowledges these guarantees, but argues that the Board's change of theories after the close of evidence was "of little moment" because Zauderer had an opportunity to object to the Board's certified report before the Supreme Court of Ohio. Ante, at 654. This reasoning is untenable. Although the Supreme Court of Ohio made the ultimate determination concerning discipline, it held no de novo hearing and afforded Zauderer no opportunity to present evidence opposing the Board's surprise exercise of judicial notice. Under Ohio procedure, the court's role was instead limited to a record review of the Board's certified findings to determine whether they were "against the weight of the evidence" or made in violation of legal and procedural guarantees. Cincinnati Bar Assn. v. Fennell, 63 Ohio St. 2d 113, 119, 406 N.E.2d 1129, 1133 (1980).[19] All that Zauderer could do was to argue that the Board's report was grounded on a theory that he had never been notified of and that he never had an opportunity to challenge with evidence of his own, and to request that proper procedures be followed.[20] *673 The court completely ignored these objections.[21] To hold that this sort of procedure constituted a meaningful "chance to be heard in a trial of the issues," Cole v. Arkansas, 333 U.S. 196, 201 (1948), is to make a mockery of the due process of law that is guaranteed every citizen accused of wrongdoing. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part, concurring in the judgment in part, and dissenting in part. I join Parts I, II, V, and VI of the Court's opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer's use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court's judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio's blanket ban.[1] I dissent from Part III of the Court's opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio's rule. Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed *674 is professional advice. Almost every State restricts an attorney's ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced possibility for confusion and deception in marketing professional services. Unlike standardized products, professional services are by their nature complex and diverse. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 773, n. 25 (1976). Faced with this complexity, a lay person may often lack the knowledge or experience to gauge the quality of the sample before signing up for a larger purchase. Second, and more significantly, the attorney's personal interest in obtaining business may color the advice offered in soliciting a client. As a result, a potential customer's decision to employ the attorney may be based on advice that is neither complete nor disinterested. These risks are of particular concern when an attorney offers unsolicited advice to a potential client in a personal encounter. In that context, the legal advice accompanying an attorney's pitch for business is not merely apt to be complex and colored by the attorney's personal interest. The advice is also offered outside of public view, and in a setting in which the prospective client's judgment may be more easily intimidated or overpowered. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978). For these reasons, most States expressly bar lawyers from accepting employment resulting from in person unsolicited advice.[2] Some States, like the American Bar Association in its Model Rules of Professional Conduct, extend the prohibition to employment resulting *675 from unsolicited advice in telephone calls, letters, or communications directed to a specific recipient.[3] Ohio and 14 other States go a step further. They do not limit their rules to certain methods of communication, but instead provide that, with limited exceptions, a "lawyer who has given unsolicited legal advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice."[4] The issue posed and decided in Part III of the Court's opinion is whether such a rule can be applied to punish the use of legal advice in a printed advertisement soliciting business. The majority's conclusion is a narrow one: "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive . . . advice regarding the legal rights of potential clients." Ante, at 647. The Court relies on its commercial speech analysis in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980), and In re R. M. J., 455 U.S. 191 (1982). As the Court notes, Central Hudson Gas & Electric establishes that a State can prohibit truthful and nondeceptive commercial speech only if the restriction directly advances a substantial government interest. In re R. M. J. went further, stating that a State cannot place an absolute prohibition on certain types of potentially misleading information if the information may also be presented in a way that is not deceptive. 455 U.S., at 203. Given these holdings, the Court rejects Ohio's ban on the legal advice contained in Zauderer's Dalkon Shield advertisement: *676 "do not assume it is too late to take legal action against the . . . manufacturer." App. 15. Surveying Ohio law, the majority concludes that this advice "seems completely unobjectionable," ante, at 640. Since the statement is not misleading, the Court turns to the asserted state interests in restricting it, and finds them all wanting. The Court perceives much less risk of overreaching or undue influence here than in Ohralik simply because the solicitation does not occur in person. The State's interest in discouraging lawyers from stirring up litigation is denigrated because lawsuits are not evil, and States cannot properly interfere with access to our system of justice. Finally, the Court finds that there exist less restrictive means to prevent attorneys from using misleading legal advice to attract clients: just as the Federal Trade Commission has been able to identify unfair or deceptive practices in the marketing of mouthwash and eggs, Warner-Lambert Co. v. FTC, 183 U. S. App. D. C. 230, 562 F.2d 749 (1977), National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (CA7 1977), the States can identify unfair or deceptive legal advice without banning that advice entirely. Ante, at 645-646. The majority concludes that "[t]he qualitative distinction the State has attempted to draw eludes us." Ante, at 646. In my view, state regulation of professional advice in advertisements is qualitatively different from regulation of claims concerning commercial goods and merchandise, and is entitled to greater deference than the majority's analysis would permit. In its prior decisions, the Court was better able to perceive both the importance of state regulation of professional conduct, and the distinction between professional services and standardized consumer products. See, e. g., Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). The States understandably require more of attorneys than of others engaged in commerce. Lawyers are professionals, and as such they have greater obligations. As Justice Frankfurter once observed, "[f]rom a profession charged with [constitutional] responsibilities there must be *677 exacted . . . qualities of truth-speaking, of a high sense of honor, of granite discretion." Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 247 (1957). The legal profession has in the past been distinguished and well served by a code of ethics which imposes certain standards beyond those prevailing in the marketplace and by a duty to place professional responsibility above pecuniary gain. While some assert that we have left the era of professionalism in the practice of law, see Florida Bar v. Schreiber, 420 So. 2d 599 (Fla. 1982) (opinion of Ehrlich, J.), substantial state interests underlie many of the provisions of the state codes of ethics, and justify more stringent standards than apply to the public at large. The Court's commercial speech decisions have repeatedly acknowledged that the differences between professional services and other advertised products may justify distinctive state regulation. See Virginia Pharmacy Board, 425 U. S., at 773, n. 25; id., at 773-775 (opinion of BURGER, C. J.); Bates v. State Bar of Arizona, 433 U.S. 350, 383-384 (1977); In re R. M. J., supra, at 204, n. 15. Most significantly, in Ohralik, the Court found that the strong state interest in maintaining standards among members of licensed professions and in preventing fraud, overreaching, or undue influence by attorneys justified a prophylactic rule barring in person solicitation. 436 U.S., at 460-462. Although the antisolicitation rule in Ohralik would in some circumstances preclude an attorney from honestly and fairly informing a potential client of his or her legal rights, the Court nevertheless deferred to the State's determination that risks of undue influence or overreaching justified a blanket ban. See also Friedman v. Rogers, 440 U.S. 1 (1979) (upholding Texas prohibition on use of any trade name in the practice of optometry due to risk of deceptive or misleading use of trade names). At a minimum, these cases demonstrate that States are entitled under some circumstances to encompass truthful, nondeceptive speech within a ban of a type of advertising that threatens substantial state interests. *678 In my view, a State could reasonably determine that the use of unsolicited legal advice "as bait with which to obtain agreement to represent [a client] for a fee," Ohralik, 436 U. S., at 458, poses a sufficient threat to substantial state interests to justify a blanket prohibition. As the Court recognized in Ohralik, the State has a significant interest in preventing attorneys from using their professional expertise to overpower the will and judgment of laypeople who have not sought their advice. While it is true that a printed advertisement presents a lesser risk of overreaching than a personal encounter, the former is only one step removed from the latter. When legal advice is employed within an advertisement, the layperson may well conclude there is no means to judge its validity or applicability short of consulting the lawyer who placed the advertisement. This is particularly true where, as in appellant's Dalkon Shield advertisement, the legal advice is phrased in uncertain terms. A potential client who read the advertisement would probably be unable to determine whether "it is too late to take legal action against the . . . manufacturer" without directly consulting the appellant. And at the time of that consultation, the same risks of undue influence, fraud, and overreaching that were noted in Ohralik are present. The State also has a substantial interest in requiring that lawyers consistently exercise independent professional judgment on behalf of their clients. Given the exigencies of the marketplace, a rule permitting the use of legal advice in advertisements will encourage lawyers to present that advice most likely to bring potential clients into the office, rather than that advice which it is most in the interest of potential clients to hear. In a recent case in New York, for example, an attorney wrote unsolicited letters to victims of a massive disaster advising them that, in his professional opinion, the liability of the potential defendants is clear. Matter of Von Wiegen, 101 A.D. 2d 627, 474 N. Y. S. 2d 147, modified, 63 N.Y. 2d 163, 470 N.E.2d 838 (1984), cert. pending, *679 No. 84-1120. Of course, under the Court's opinion claims like this might be reached by branding the advice misleading or by promulgating a state rule requiring extensive disclosure of all relevant liability rules whenever such a claim is advanced. But even if such a claim were completely accurate — even if liability were in fact clear and the attorney actually thought it to be so — I believe the State could reasonably decide that a professional should not accept employment resulting from such unsolicited advice. See Ohralik, supra, at 461 (noting that DR 2-104(A) serves "to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest"). Ohio and other States afford attorneys ample opportunities to inform members of the public of their legal rights. See, e. g., Ohio DR 2-104(A)(4) (permitting attorneys to speak and write publicly on legal topics as long as they do not emphasize their own experience or reputation). Given the availability of alternative means to inform the public of legal rights, Ohio's rule against legal advice in advertisements is an appropriate means to assure the exercise of independent professional judgment by attorneys. A State might rightfully take pride that its citizens have access to its civil courts, ante, at 643, while at the same time opposing the use of self-interested legal advice to solicit clients. In the face of these substantial and legitimate state concerns, I cannot agree with the majority that Ohio DR 2-104(A) is unnecessary to the achievement of those interests. The Ohio rule may sweep in some advertisements containing helpful legal advice within its general prohibition. Nevertheless, I am not prepared to second-guess Ohio's longstanding and careful balancing of legitimate state interests merely because appellant here can invent a less restrictive rule. As the Iowa Supreme Court recently observed, "[t]he professional disciplinary system would be in chaos if violations could be defended on the ground the lawyer involved could think of a better rule." Committee On Professional *680 Ethics and Conduct of Ohio State Bar Assn. v. Humphrey, 355 N.W.2d 565, 569 (1984), cert. pending, No. 84-1150. Because I would defer to the judgment of the States that have chosen to preclude use of unsolicited legal advice to entice clients, I respectfully dissent from Part III of the Court's opinion.

Since the decision in Virginia Pharmacy in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. ; In re Primus, ; ; This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements. I Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted *630 of DRUNK DRIVING."[1] The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad. Appellant's second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device.[2] The advertisement featured a line drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then related the following information: *631 "The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients." The ad concluded with the name of appellant's law firm, its address, and a phone number that the reader might call for "free information." The advertisement was successful in attracting clients: appellant received well over 200 inquiries regarding the advertisement, and he initiated lawsuits on behalf of 106 of the women who contacted him as a result of the advertisement. The ad, however, also aroused the interest of the Office of Disciplinary Counsel. On July 29, 1982, the Office filed a complaint against appellant charging him with a number of disciplinary violations arising out of both the drunken driving and Dalkon Shield advertisements. The complaint, as subsequently amended, alleged that the drunken driving ad violated Ohio Disciplinary Rule 2-101(A) in that it was "false, fraudulent, misleading, and deceptive to the public"[3] because it offered representation on a contingent-fee basis in a criminal case — an offer that could not be carried out under Disciplinary Rule 2-106(C). With *632 respect to the Dalkon Shield advertisement, the complaint alleged that in running the ad and accepting employment by women responding to it, appellant had violated the following Disciplinary Rules: DR 2-101(B), which prohibits the use of illustrations in advertisements run by attorneys, requires that ads by attorneys be "dignified," and limits the information that may be included in such ads to a list of 20 items;[4]*633 DR 2-103(A), which prohibits an attorney from "recommend[ing] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer"; and DR 2-104(A), which provides (with certain exceptions not applicable here) that "[a] lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice." The complaint also alleged that the advertisement violated DR 2-101(B)(15), which provides that any advertisement that mentions contingent-fee rates must "disclos[e] whether percentages are computed before or after deduction of court costs and expenses," and that the ad's failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement "deceptive" in violation of DR 2-101(A). The complaint did not allege that the Dalkon Shield advertisement was false or deceptive in any respect other than its *634 omission of information relating to the contingent-fee arrangement; indeed, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The charges against appellant were heard by a panel of the of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. Appellant's primary defense to the charges against him was that Ohio's rules restricting the content of advertising by attorneys were unconstitutional under this Court's decisions in and In re R. M. In support of his contention that the State had not provided justification for its rules sufficient to withstand the First Amendment scrutiny called for by those decisions, appellant proffered the testimony of expert witnesses that unfettered advertising by attorneys was economically beneficial and that appellant's advertising in particular was socially valuable in that it served to inform members of the public of their legal rights and of the potential health hazards associated with the Dalkon Shield. Appellant also put on the stand two of the women who had responded to his advertisements, both of whom testified that they would not have learned of their legal claims had it not been for appellant's advertisement. The panel found that appellant's use of advertising had violated a number of Disciplinary Rules. The panel accepted the contention that the drunken driving advertisement was deceptive, but its reasoning differed from that of the Office of Disciplinary Counsel: the panel concluded that because the advertisement failed to mention the common practice of plea bargaining in drunken driving cases, it might be deceptive to potential clients who would be unaware of the likelihood that they would both be found guilty (of a lesser offense) and be liable for attorney's fees (because they had not been convicted of drunken driving). The panel also found that the use of an illustration in appellant's Dalkon Shield advertisement *635 violated DR 2-101(B), that the ad's failure to disclose the client's potential liability for costs even if her suit were unsuccessful violated both DR 2-101(A) and DR 2-101 (B)(15), that the advertisement constituted self-recommendation in violation of DR 2-103(A), and that appellant's acceptance of offers of employment resulting from the advertisement violated DR 2-104(A).[5] The panel rejected appellant's arguments that Ohio's regulations regarding the content of attorney advertising were unconstitutional as applied to him. The panel noted that neither Bates nor In re R. M. had forbidden all regulation of attorney advertising and that both of those cases had involved advertising regulations substantially more restrictive than Ohio's. The panel also relied heavily on in which this Court upheld Ohio's imposition of discipline on an attorney who had engaged in in-person The panel apparently concluded that the interests served by the application of Ohio's rules to advertising that contained legal advice and solicited clients to pursue a particular legal claim were as substantial as the interests at stake in Accordingly, the panel rejected appellant's constitutional defenses and recommended that he be publicly reprimanded for his violations. The of Commissioners adopted the panel's findings in full, but recommended the sanction of indefinite suspension from the practice of law rather than the more lenient punishment proposed by the panel. The Supreme Court of Ohio, in turn, adopted the 's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel. The court also agreed with the that the application of Ohio's rules to appellant's advertisements did not offend the First Amendment. The *636 court pointed out that Bates and In re R. M. permitted regulations designed to prevent the use of deceptive advertising and that R. M. had recognized that even non-deceptive advertising might be restricted if the restriction was narrowly designed to achieve a substantial state interest. The court held that disclosure requirements applicable to advertisements mentioning contingent-fee arrangements served the permissible goal of ensuring that potential clients were not misled regarding the terms of the arrangements. In addition, the court held, it was "allowable" to prevent attorneys form claiming expertise in particular fields of law in the absence of standards by which such claims might be assessed, and it was "reasonable" to preclude the use of illustrations in advertisements and to prevent attorneys from offering legal advice in their advertisements, although the court did not specifically identify the interests served by these restrictions. Having determined that appellant's advertisements violated Ohio's Disciplinary Rules and that the First Amendment did not forbid the application of those rules to appellant, the court concluded that appellant's conduct warranted a public reprimand. Contending that Ohio's Disciplinary Rules violate the First Amendment insofar as they authorize the State to discipline him for the content of his Dalkon Shield advertisement, appellant filed this appeal. Appellant also claims that the manner in which he was disciplined for running his drunken driving advertisement violated his right to due process. We noted probable jurisdiction, and now affirm in part and reverse in part.[6] *637 II There is no longer any room to doubt that what has come to be known as "commercial speech" is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded "noncommercial speech." ; In re R. M. ; Central Hudson Gas & More subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech, but it is clear enough that the speech at issue in this case — advertising pure and simple — falls within those bounds. Our commercial speech doctrine rests heavily on "the `common-sense' distinction between speech proposing a commercial transaction and other varieties of speech," and appellant's advertisements undeniably propose a commercial transaction. Whatever else the category of commercial speech may encompass, see Central Hudson Gas & v. Public Service Comm'n of New it must include appellant's advertisements.[7] *638 Our general approach to restrictions on commercial speech is also by now well settled. The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see or that proposes an illegal transaction, see Pittsburgh Press Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Central Hudson Gas & Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on price advertising by attorneys and rules preventing attorneys from using non-deceptive terminology to describe their fields of practice are impermissible, see ; In re R. M. but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible, see To resolve this appeal, we must apply the teachings of these cases to three separate forms of regulation Ohio has imposed on advertising by its attorneys: prohibitions on soliciting legal business through advertisements containing advice and information regarding specific legal problems; restrictions on the use of illustrations in advertising by lawyers; and disclosure requirements relating to the terms of contingent fees.[8] *639 III We turn first to the Ohio Supreme Court's finding that appellant's Dalkon Shield advertisement (and his acceptance of employment resulting from it) ran afoul of the rules against self-recommendation and accepting employment resulting from unsolicited legal advice. Because all advertising is at least implicitly a plea for its audience's custom, a broad reading of the rules applied by the Ohio court (and particularly the rule against self-recommendation) might suggest that they forbid all advertising by attorneys — a result obviously not in keeping with our decisions in Bates and In re R. M. But the Ohio court did not purport to give its rules such a broad reading: it held only that the rules forbade soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem. The interest served by the application of the Ohio self-recommendation and solicitation rules to appellant's advertisement is not apparent from a reading of the opinions of the Ohio Supreme Court and its of Commissioners. The advertisement's information and advice concerning the Dalkon Shield were, as the Office of Disciplinary Counsel stipulated, neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that *640 lawsuits alleging injuries caused by the Dalkon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in other such litigation.[9] Rather, the advertisement reported the indisputable fact that the Dalkon Shield has spawned an impressive number of lawsuits[10] and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred — advice that seems completely unobjectionable in light of the trend in many States toward a "discovery rule" for determining when a cause of action for latent injury or disease accrues.[11]*641 The State's power to prohibit advertising that is "inherently misleading," see In re R. M. thus cannot justify Ohio's decision to discipline appellant for running advertising geared to persons with a specific legal problem. Because appellant's statements regarding the Dalkon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest. The extensive citations in the opinion of the of Commissioners to our opinion in suggest that the believed that the application of the rules to appellant's advertising served the same interests that this Court found sufficient to justify the ban on in-person solicitation at issue in We cannot agree. Our decision in was largely grounded on the substantial differences between face-to-face solicitation and the advertising we had held permissible in Bates. In-person solicitation by a lawyer, we concluded, was a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. -465. In addition, we noted that in-person solicitation presents unique regulatory difficulties because it is "not visible or otherwise open to public scrutiny." These unique features of in-person solicitation by lawyers, we held, justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain, but we were careful to point out that "in-person solicitation of *642 professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services." It is apparent that the concerns that moved the Court in are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertisement — and print advertising generally — poses much less risk of over-reaching or undue influence. Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. In addition, a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation. Thus, a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in cannot justify the discipline imposed on appellant for the content of his advertisement. Nor does the traditional justification for restraints on solicitation — the fear that lawyers will "stir up litigation" — justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness. "[A]s a litigant," Judge Learned Hand once observed, "I should dread a lawsuit beyond almost anything else short of sickness and death." L. Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in *643 3 Association of the Bar of the City of New Lectures on Legal Topics 89, 105 But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: "we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits. The State does not, however, argue that the encouragement of litigation is inherently evil, nor does it assert an interest in discouraging the particular form of litigation that appellant's advertising solicited. Rather, the State's position is that although appellant's advertising may itself have been harmless — may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware — the State's prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants. Advertising by attorneys, the State claims, presents regulatory difficulties that are different in kind from those presented by other forms of advertising. *644 Whereas statements about most consumer products are subject to verification, the indeterminacy of statements about law makes it impractical if not impossible to weed out accurate statements from those that are false or misleading. A prophylactic rule is therefore essential if the State is to vindicate its substantial interest in ensuring that its citizens are not encouraged to engage in litigation by statements that are at best ambiguous and at worst outright false. The State's argument that it may apply a prophylactic rule to punish appellant notwithstanding that his particular advertisement has none of the vices that allegedly justify the rule is in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State's purposes. See Central Hudson Gas & -571. Indeed, in In re R. M. we went so far as to state that "the States may not place an absolute prohibition on certain types of potentially misleading information if the information also may be presented in a way that is not " The State's argument, then, must be that this dictum is incorrect — that there are some circumstances in which a prophylactic rule is the least restrictive possible means of achieving a substantial governmental interest. Cf. We need not, however, address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substantial governmental interest. The State's contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the problems presented by advertising generally is unpersuasive. The State's argument proceeds from the premise that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are *645 truthful and helpful, much more so than is the case with other goods or services.[12] This notion is belied by the facts before us: appellant's statements regarding Dalkon Shield litigation were in fact easily verifiable and completely accurate. Nor is it true that distinguishing deceptive from nondeceptive claims in advertising involving products other than legal services is a comparatively simple and straightforward process. A brief survey of the body of case law that has developed as a result of the Federal Trade Commission's efforts to carry out its mandate under 5 of the Federal Trade Commission Act to eliminate "unfair or deceptive acts or practices in commerce," 15 U.S. C. 45(a)(1), reveals that distinguishing deceptive from nondeceptive advertising in virtually any field of commerce may require resolution of exceedingly complex and technical factual issues and the consideration of nice questions of semantics. See, e. g., Warner-Lambert ; National Comm'n on Egg In short, assessment of the validity of legal advice and information contained in attorneys' advertising is *646 not necessarily a matter of great complexity; nor is assessing the accuracy or capacity to deceive of other forms of advertising the simple process the State makes it out to be. The qualitative distinction the State has attempted to draw eludes us.[13] Were we to accept the State's argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful. The value of the information presented in appellant's advertising is no less than that contained in other forms of advertising — indeed, insofar as appellant's advertising tended to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it was undoubtedly more valuable than many other forms of advertising. Prophylactic restraints that would be *647 unacceptable as applied to commercial advertising generally are therefore equally unacceptable as applied to appellant's advertising. An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients. IV The application of DR 2-101(B)'s restriction on illustrations in advertising by lawyers to appellant's advertisement fails for much the same reasons as does the application of the self-recommendation and solicitation rules. The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test. Because the illustration for which appellant was disciplined is an accurate representation of the Dalkon Shield and has no features that are likely to deceive, mislead, or confuse the reader, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means. The text of DR 2-101(B) strongly suggests that the purpose of the restriction on the use of illustrations is to ensure that attorneys advertise "in a dignified manner." There is, of course, no suggestion that the illustration actually used by appellant was undignified; thus, it is difficult to see how the application of the rule to appellant in this case directly advances the State's interest in preserving the dignity of attorneys. More fundamentally, although the State undoubtedly *6 has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. As we held in the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity. In its arguments before this Court, the State has asserted that the restriction on illustrations serves a somewhat different purpose, akin to that supposedly served by the prohibition on the offering of legal advice in advertising. The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, once again, the State's argument is that its purposes can only be served through a prophylactic rule. We are not convinced. The State's arguments amount to little more than unsupported assertions: nowhere does the State cite any evidence or authority of any kind for its contention that the potential abuses associated with the use of illustrations in attorneys' advertising cannot be combated by any means short of a blanket ban. Moreover, none of the *649 State's arguments establish that there are particular evils associated with the use of illustrations in attorneys' advertisements. Indeed, because it is probably rare that decisions regarding consumption of legal services are based on a consumer's assumptions about qualities of the product that can be represented visually, illustrations in lawyer's advertisements will probably be less likely to lend themselves to material misrepresentations than illustrations in other forms of advertising. Thus, acceptance of the State's argument would be tantamount to adoption of the principle that a State may prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative. But as we stated above, broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burden-some that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. The experience of the FTC is, again, instructive. Although that agency has not found the elimination of deceptive uses of visual media in advertising to be a simple task, neither has it found the task an impossible one: in many instances, the agency has succeeded in identifying and suppressing visually deceptive advertising. See, e. g., See generally E. Kintner, A Primer on the Law of Deceptive Practices 158-173 Given the possibility of policing the use of illustrations in advertisements on a case-by-case basis, the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration. *650 V Appellant contends that assessing the validity of the Ohio Supreme Court's decision to discipline him for his failure to include in the Dalkon Shield advertisement the information that clients might be liable for significant litigation costs even if their lawsuits were unsuccessful entails precisely the same inquiry as determining the validity of the restrictions on advertising content discussed above. In other words, he suggests that the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive or that the disclosure requirement serves some substantial governmental interest other than preventing deception; moreover, he contends that the State must establish that the disclosure requirement directly advances the relevant governmental interest and that it constitutes the least restrictive means of doing so. Not surprisingly, appellant claims that the State has failed to muster substantial evidentiary support for any of the findings required to support the restriction. Appellant, however, overlooks material differences between disclosure requirements and outright prohibitions on speech. In requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present. We have, to be sure, held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech. See, e. g., ; Miami Herald Publishing Indeed, in West Virginia State of the Court went so far as to state that "involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." *651 But the interests at stake in this case are not of the same order as those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, see Virginia Pharmacy appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, "warning[s] or disclaimer[s] might be appropriately required in order to dissipate the possibility of consumer confusion or deception." In re R. M. Accord, Central Hudson Gas & ; ; Virginia Pharmacy We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.[14] *652 The State's application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant's advertisement informed the public that "if there is no recovery, no legal fees are owed by our clients." The advertisement makes no mention of the distinction between "legal fees" and "costs," and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as "fees" and "costs" — terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require *653 the State to "conduct a survey of the public before it [may] determine that the [advertisement] had a tendency to mislead." -392. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed.[15] *654 VI Finally, we address appellant's argument that he was denied procedural due process by the manner in which discipline was imposed on him in connection with his drunken driving advertisement. Appellant's contention is that the theory relied on by the Ohio Supreme Court and its of Commissioners as to how the advertisement was deceptive was different from the theory asserted by the Office of Disciplinary Counsel in its complaint.[16] We cannot agree that this discrepancy violated the constitutional guarantee of due process. Under the law of Ohio, bar discipline is the responsibility of the Ohio Supreme Court. Ohio Const., Art. IV, 2(B)(1)(g). The of Commissioners on Grievances and Discipline formally serves only as a body that recommends discipline to the Supreme Court; it has no authority to impose discipline itself. See Govt. Bar Rule V(2), (16)-(20). That the of Commissioners chose to make its recommendation of discipline on the basis of reasoning different from that of the Office of Disciplinary Counsel is of little moment: what is important is that the 's recommendations put appellant on notice of the charges he had to answer to the satisfaction of the Supreme Court of Ohio. Appellant does not contend that he was afforded no opportunity to respond to the 's recommendation; indeed, the Ohio rules appear to provide ample opportunity for response to recommendations, and it appears that appellant availed himself of that opportunity.[17]*655 The notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process.[18] VII The Supreme Court of Ohio issued a public reprimand incorporating by reference its opinion finding that appellant had violated Disciplinary Rules 2-101(A), 2-101(B), 2-101 (B)(15), 2-103(A), and 2-104(A). That judgment is affirmed to the extent that it is based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement. But insofar as the reprimand was based on appellant's use of an *656A illustration in his advertisement in violation of DR 2-101(B) and his offer of legal advice in his advertisement in violation of DR 2-103(A) and 2-104(A), the judgment is reversed. It is so ordered. JUSTICE POWELL took no part in the decision of this case. *656B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part, concurring in the judgment in part, and dissenting in part. I fully agree with the Court that a State may not discipline attorneys who solicit business by publishing newspaper advertisements that contain "truthful and nondeceptive information and advice regarding the legal rights of potential clients" and "accurate and nondeceptive illustration[s]." Ante, at 647, 649. I therefore join Part I-IV of the Court's opinion, and I join the Court's judgment set forth in Part VII to the extent it reverses the Supreme Court of Ohio's public reprimand of the appellant Philip Q. Zauderer for his violations of Disciplinary Rules 2-101(B), 2-103(A), and 2-104(A). With some qualifications, I also agree with the conclusion in Part V of the Court's opinion that a State may impose commercial-advertising disclosure requirements that are "reasonably related to the State's interest in preventing deception of consumers." Ante, at 651. I do not agree, however, that the State of Ohio's vaguely expressed disclosure requirements fully satisfy this standard, and in any event I believe that Ohio's punishment of Zauderer for his alleged infractions of those requirements violated important due process and First Amendment guarantees. In addition, I believe the manner in which Ohio has punished Zauderer for publishing the "drunk driving" advertisement violated fundamental principles of procedural due process. I therefore concur in part and dissent in part from Part V of the Court's opinion, dissent from Part VI, and dissent from the judgment set forth in Part VII insofar as it affirms the Supreme Court *657 of Ohio's public reprimand "based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement." Ante, at 655. I A The Court concludes that the First Amendment's protection of commercial speech is satisfied so long as a disclosure requirement is "reasonably related" to preventing consumer deception, and it suggests that this standard "might" be violated if a disclosure requirement were "unjustified" or "unduly burdensome." Ante, at 651. I agree with the Court's somewhat amorphous "reasonable relationship" inquiry only on the understanding that it comports with the standards more precisely set forth in our previous commercial-speech cases. Under those standards, regulation of commercial speech — whether through an affirmative disclosure requirement or through outright suppression[1] — is "reasonable" only *658 to the extent that a State can demonstrate a legitimate and substantial interest to be achieved by the regulation. In re R. M. ; Central Hudson Gas & Moreover, the regulation must directly advance the state interest and "may extend only as far as the interest it serves." See also at Where the State imposes regulations to guard against "the potential for deception and confusion" in commercial speech, those regulations "may be no broader than reasonably necessary to prevent the deception." In re R. M. at See also Virginia Pharmacy ;[2] Because of the First Amendment values at stake, courts must exercise careful scrutiny in applying these standards. Thus a State may not rely on "highly speculative" or "tenuous" *659 arguments in carrying its burden of demonstrating the legitimacy of its commercial-speech regulations. Central Hudson Gas & Where a regulation is addressed to allegedly deceptive advertising, the State must instead demonstrate that the advertising either "is inherently likely to deceive" or must muster record evidence showing that "a particular form or method of advertising has in fact been deceptive," In re R. M. and it must similarly demonstrate that the regulations directly and proportionately remedy the deception. Where States have failed to make such showings, we have repeatedly struck down the challenged regulations.[3] As the Court acknowledges, it is "somewhat difficult" to apply these standards to Ohio's disclosure requirements "in light of the Ohio court's failure to specify precisely what disclosures were required." Ante, at 653, n. 15. It is also somewhat difficult to determine precisely what disclosure requirements the Court approves today. The Supreme Court of Ohio appears to have imposed three overlapping requirements, each of which must be analyzed under the First *660 Amendment standards set forth above. First, the court concluded that "a lawyer advertisement which refers to contingent fees" should indicate whether "additional costs might be assessed the client." The report of the of Commissioners on Grievances and Discipline of the Ohio Supreme Court explained that such a requirement is necessary to guard against "the impression that if there were no recovery, the client would owe nothing." App. to Juris. Statement 14a. I agree with the Court's conclusion that, given the general public's unfamiliarity with the distinction between fees and costs, a State may require an advertising attorney to include a costs disclaimer so as to avoid the potential for misunderstanding, ante, at 653 — provided the required disclaimer is "no broader than reasonably necessary to prevent the deception," In re R. M. at Second, the report and opinion provide that an attorney advertising his availability on a contingent-fee basis must "specifically expres[s]" his 10 Ohio St. 3d, at 461 N. E. 2d, at ; see also App. to Juris. Statement 14a. The Court's analysis of this requirement — which the Court characterizes as a "suggest[ion]," ante, at 653, n. 15 — is limited to the passing observation that the requirement does not "see[m] intrinsically burdensome," The question of burden, however, is irrelevant unless the State can first demonstrate that the rate-publication requirement directly and proportionately furthers a "substantial interest." In re R. M. Yet an attorney's failure to specify a particular percentage rate when advertising that he accepts cases on a contingent-fee basis can in no way be said to be "inherently likely to deceive," and the voluminous record in this case fails to reveal a single instance suggesting that such a failure has in actual experience proved [4] Nor has Ohio at any point identified any other *661 "substantial interest" that would be served by such a requirement. Although a State might well be able to demonstrate that rate publication is necessary to prevent deception or to serve some other substantial interest, it must do so pursuant to the carefully structured commercial-speech standards in order to ensure the full evaluation of competing considerations and to guard against impermissible discrimination among different categories of commercial speech. See n. 7, infra.[5] Ohio has made no such demonstration here. Third, the Supreme Court of Ohio agreed with the of Commissioners that Zauderer had acted unethically "by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement." 461 *662 N. E. 2d, at ; see App. to Juris. Statement 14a, 19a. The record indicates that Zauderer enters into a comprehensive contract with personal injury clients, one that spells out over several pages the various terms and qualifications of the contingent-fee relationship.[6] If Ohio *663 seriously means to require Zauderer "fully to disclose the[se] terms," this requirement would obviously be so "unduly burdensome" as to violate the First Amendment. Ante, at 651. Such a requirement, compelling the publication of detailed fee information that would fill far more space than the advertisement itself, would chill the publication of protected commercial speech and would be entirely out of proportion *664 to the State's legitimate interest in preventing potential deception. See In re R. M. ; Central Hudson Gas & 447 U. S., at ; Virginia Pharmacy -. Given the Court's explicit endorsement of Ohio's other disclosure provisions, I can only read the Court's telling silence respecting this apparent requirement as an implicit acknowledgment that it could not possibly pass constitutional muster.[7] B Ohio's glaring failure "to specify precisely what disclosures were required," ante, at 653, n. 15, is relevant in another important respect. Even if a State may impose particular disclosure requirements, an advertiser may not be punished for failing to include such disclosures "unless his failure is in violation of valid state statutory or decisional law requiring the [advertiser] to label or take other precautions to prevent confusion of customers." Compco Corp. v. Day-Brite Lighting, Whether or not Ohio may properly impose the disclosure requirements discussed above, it failed to provide Zauderer with sufficient notice that he was expected to include such disclosures in his Dalkon Shield advertisement. The State's punishment of Zauderer therefore violated basic due process and First Amendment guarantees. *665 Neither the published rules, state authorities, nor governing precedents put Zauderer on notice of what he was required to include in the advertisement. As the Court acknowledges, Ohio's Disciplinary Rules do not "on [their] face require any disclosures except when an advertisement mentions contingent-fee rates — which appellant's advertisement did not do." Ante, at 653, n. 15. In light of the ambiguity of the rules, Zauderer contracted the governing authorities before publishing the advertisement and unsuccessfully sought to determine whether it would be ethically objectionable. He met with representatives of the Office of Disciplinary Counsel, reviewed the advertisement with them, and asked whether the Office had any objections or recommendations concerning the form or content of the advertisement. The Office refused to advise Zauderer whether "he should or should not publish the advertisement," informing him that it "does not have authority to issue advisory opinions nor to approve or disapprove legal service advertisements." Stipulation of Fact Between Relator and Respondent ¶¶ 22, 27, App. 16. And even after full disciplinary proceedings, Ohio still has failed, as the Court acknowledges, "to specify precisely what disclosures were required," and therefore to specify precisely how Zauderer violated the law and what reasonable precautions he can take to avoid future disciplinary actions. Ante, at 653, n. 15. A regulation that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction The Fourteenth Amendment's Due Process Clause "insist[s] that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." This requirement "applies with particular force in review of laws dealing with speech," Hynes ; "a man may be the less required to act at his peril here, because the free dissemination of ideas may be the loser,"[8] These guarantees apply fully to attorney disciplinary proceedings. In re Given the traditions of the legal profession and an attorney's specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for "conduct which all responsible attorneys would recognize as improper for a member of the profession." (WHITE, concurring in result).[9] But where "[t]he appraisal of [an attorney's] conduct is one about which reasonable men differ, not one immediately apparent to any scrupulous citizen who confronts the question," and where the State has not otherwise proscribed the conduct in reasonably clear terms, the Due Process Clause forbids punishment of the attorney for that conduct. -556.[10] *667 I do not believe that Zauderer's Dalkon Shield advertisement can be said to be so obviously misleading as to justify punishment in the absence of a reasonably clear contemporaneous rule requiring the inclusion of certain disclaimers. The advertisement's statement that "[i]f there is no recovery, no legal fees are owed by our clients" was accurate on its face, and "[t]here is nothing in the record to indicate that the inclusion of this information was misleading" in actual practice because of the failure to include a costs disclaimer. In re R. M. -206.[11] Moreover, although the statement might well be viewed by many attorneys as carrying the potential for deception, the Office of Disciplinary Counsel itself stipulated that "[t]he Dalkon Shield advertisement published by [Zauderer] does not contain a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." Stipulation of Fact Between Relator and Respondent ¶ 30, App. 17. Several other States have approved the publication of Dalkon Shield advertisements containing the identical no-legal-fees statement, without even a suggestion that the statement might be [12]*668 And the Office of Disciplinary Counsel's refusal to respond to Zauderer's prepublication inquiries concerning the propriety of the advertisement wholly undermines one of the basic justifications for allowing punishment for violations of imprecise commercial regulations — that a businessperson can clarify the meaning of an arguably vague regulation by consulting with government administrators.[13] Although I agree that a State may upon a proper showing require a costs disclaimer as a prophylactic measure to guard against potential deception, see and may thereafter discipline attorneys who fail to include such disclaimers, Ohio had imposed no such requirement at the time Zauderer published the advertisement, as the Court acknowledges, ante, at 653, n. 15. The State instead has punished Zauderer for violating requirements that did not exist prior to this disciplinary proceeding. The Court appears to concede these serious problems, noting that "it may well be that for Ohio actually to disbar an attorney on the basis of its disclosure requirements as they have been worked out to this point would raise significant due process concerns." The Court *669 "see[s] no infirmity" in this case, however, because the Supreme Court of Ohio publicly reprimanded Zauderer rather than disbarring him. Ante, at 654, n. 15. This distinction is thoroughly unconvincing. When an attorney's constitutional rights have been violated, we have not hesitated in the past to reverse disciplinary sanctions that were even less severe than a public reprimand.[14] Moreover, a public reprimand in Ohio exacts a potentially severe deprivation of liberty and property interests that are fully protected by the Due Process Clause. The reprimand brands Zauderer as an unethical attorney who has violated his solemn oath of office and committed a "willful breach" of the Code of Professional Responsibility, and it has been published in statewide professional journals and the official reports of the Ohio Supreme Court.[15] This Court's casual indifference to the gravity of this injury inflicted on an attorney's good name demeans the entire legal profession.[16] In addition, under Ohio law "[a] person who has been publicly reprimanded for misconduct, upon being found guilty of subsequent misconduct, shall be suspended for an indefinite period from the practice of law or permanently disbarred." Govt. Bar Rule V(7). In light of Ohio's vague rules, the governing authorities' refusal to provide clarification and *670 guidance to Zauderer, and the Ohio Supreme Court's "failure to specify precisely what disclosures [are] required," ante, at 653, n. 15, Zauderer will hereafter publish advertisements mentioning contingent fees only at his peril. No matter what disclaimers he includes, Ohio may decide after the fact that further information should have been included and might, under the force of its rules, attempt to suspend him indefinitely from his livelihood. Such a potential trap for an unwary attorney acting in good faith not only works a significant due process deprivation, but also imposes an intolerable chill upon the exercise of First Amendment rights. See and n. 8.[17] II The Office of Disciplinary Counsel charged that Zauderer's drunken driving advertisement was deceptive because it proposed a contingent fee in a criminal case — an unlawful arrangement under Ohio law. Amended Complaint ¶¶ 3-7, App. 22-23. Zauderer defended on the ground that the offer of a refund did not constitute a proposed contingent fee. This was the sole issue concerning the drunken driving advertisement that the Office complained of, and the evidence and arguments presented to the of Commissioners were limited to this question. The however, did not *671 even mention the contingent-fee issue in its certified report. Instead, it found the advertisement "misleading and deceptive" on the basis of a completely new theory — that as a matter of "general knowledge" as discerned from certain "Municipal Court reports," drunken driving charges are "in many cases reduced and a plea of guilty or no contest to a lesser included offense is entered and received by the court," so that in such circumstances "the legal fee would not be refundable." App. to Juris. Statement 11a. Although Zauderer argued before the Supreme Court of Ohio that this theory had never been advanced by the Office of Disciplinary Counsel, that he had never had any opportunity to object to the propriety of judicial notice or to present opposing evidence, and that there was no evidence connecting him to the alleged practice, the court adopted the 's findings without even acknowledging his objections. 10 Ohio St. 3d, at 461 N.E.2d, at Zauderer of course might not ultimately be able to disprove the 's theory. The question before the Court, however, is not one of prediction but one of process. "A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence." In re Oliver, (19). Under the Due Process Clause, "reasonable notice" must include disclosure of "the specific issues [the party] must meet," In re Gault, and appraisal of "the factual material on which the agency relies for decision so that he may rebut it," Bowman Transportation, v. Arkansas-Best Freight System, These guarantees apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Where there is an "absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges," so that the attorney is not given a meaningful opportunity to present evidence in his defense, the proceedings *672 violate due process. In re[18] The Court acknowledges these guarantees, but argues that the 's change of theories after the close of evidence was "of little moment" because Zauderer had an opportunity to object to the 's certified report before the Supreme Court of Ohio. Ante, at 654. This reasoning is untenable. Although the Supreme Court of Ohio made the ultimate determination concerning discipline, it held no de novo hearing and afforded Zauderer no opportunity to present evidence opposing the 's surprise exercise of judicial notice. Under Ohio procedure, the court's role was instead limited to a record review of the 's certified findings to determine whether they were "against the weight of the evidence" or made in violation of legal and procedural guarantees. Cincinnati Bar v. Fennell,[19] All that Zauderer could do was to argue that the 's report was grounded on a theory that he had never been notified of and that he never had an opportunity to challenge with evidence of his own, and to request that proper procedures be followed.[20] *673 The court completely ignored these objections.[21] To hold that this sort of procedure constituted a meaningful "chance to be heard in a trial of the issues," (19), is to make a mockery of the due process of law that is guaranteed every citizen accused of wrongdoing. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part, concurring in the judgment in part, and dissenting in part. I join Parts I, II, V, and VI of the Court's opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer's use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court's judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio's blanket ban.[1] I dissent from Part III of the Court's opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio's rule. Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed *674 is professional advice. Almost every State restricts an attorney's ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced possibility for confusion and deception in marketing professional services. Unlike standardized products, professional services are by their nature complex and diverse. See Virginia Pharmacy Faced with this complexity, a lay person may often lack the knowledge or experience to gauge the quality of the sample before signing up for a larger purchase. Second, and more significantly, the attorney's personal interest in obtaining business may color the advice offered in soliciting a client. As a result, a potential customer's decision to employ the attorney may be based on advice that is neither complete nor disinterested. These risks are of particular concern when an attorney offers unsolicited advice to a potential client in a personal encounter. In that context, the legal advice accompanying an attorney's pitch for business is not merely apt to be complex and colored by the attorney's personal interest. The advice is also offered outside of public view, and in a setting in which the prospective client's judgment may be more easily intimidated or overpowered. See For these reasons, most States expressly bar lawyers from accepting employment resulting from in person unsolicited advice.[2] Some States, like the American Bar Association in its Model Rules of Professional Conduct, extend the prohibition to employment resulting *675 from unsolicited advice in telephone calls, letters, or communications directed to a specific recipient.[3] Ohio and 14 other States go a step further. They do not limit their rules to certain methods of communication, but instead provide that, with limited exceptions, a "lawyer who has given unsolicited legal advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice."[4] The issue posed and decided in Part III of the Court's opinion is whether such a rule can be applied to punish the use of legal advice in a printed advertisement soliciting business. The majority's conclusion is a narrow one: "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive advice regarding the legal rights of potential clients." Ante, at 647. The Court relies on its commercial speech analysis in Central Hudson Gas & and In re R. M. As the Court notes, Central Hudson Gas & establishes that a State can prohibit truthful and nondeceptive commercial speech only if the restriction directly advances a substantial government interest. In re R. M. went further, stating that a State cannot place an absolute prohibition on certain types of potentially misleading information if the information may also be presented in a way that is not Given these holdings, the Court rejects Ohio's ban on the legal advice contained in Zauderer's Dalkon Shield advertisement: *676 "do not assume it is too late to take legal action against the manufacturer." App. 15. Surveying Ohio law, the majority concludes that this advice "seems completely unobjectionable," ante, at 640. Since the statement is not misleading, the Court turns to the asserted state interests in restricting it, and finds them all wanting. The Court perceives much less risk of overreaching or undue influence here than in simply because the solicitation does not occur in person. The State's interest in discouraging lawyers from stirring up litigation is denigrated because lawsuits are not evil, and States cannot properly interfere with access to our system of justice. Finally, the Court finds that there exist less restrictive means to prevent attorneys from using misleading legal advice to attract clients: just as the Federal Trade Commission has been able to identify unfair or deceptive practices in the marketing of mouthwash and eggs, Warner-Lambert National Comm'n on Egg the States can identify unfair or deceptive legal advice without banning that advice entirely. Ante, at 645-646. The majority concludes that "[t]he qualitative distinction the State has attempted to draw eludes us." Ante, at 646. In my view, state regulation of professional advice in advertisements is qualitatively different from regulation of claims concerning commercial goods and merchandise, and is entitled to greater deference than the majority's analysis would permit. In its prior decisions, the Court was better able to perceive both the importance of state regulation of professional conduct, and the distinction between professional services and standardized consumer products. See, e. g., The States understandably require more of attorneys than of others engaged in commerce. Lawyers are professionals, and as such they have greater obligations. As Justice Frankfurter once observed, "[f]rom a profession charged with [constitutional] responsibilities there must be *677 exacted qualities of truth-speaking, of a high sense of honor, of granite discretion." The legal profession has in the past been distinguished and well served by a code of ethics which imposes certain standards beyond those prevailing in the marketplace and by a duty to place professional responsibility above pecuniary gain. While some assert that we have left the era of professionalism in the practice of law, see Florida (opinion of Ehrlich, ), substantial state interests underlie many of the provisions of the state codes of ethics, and justify more stringent standards than apply to the public at large. The Court's commercial speech decisions have repeatedly acknowledged that the differences between professional services and other advertised products may justify distinctive state regulation. See Virginia Pharmacy 425 U. S., at ; (opinion of BURGER, C. ); 383- ; In re R. M. Most significantly, in the Court found that the strong state interest in maintaining standards among members of licensed professions and in preventing fraud, overreaching, or undue influence by attorneys justified a prophylactic rule barring in person -462. Although the antisolicitation rule in would in some circumstances preclude an attorney from honestly and fairly informing a potential client of his or her legal rights, the Court nevertheless deferred to the State's determination that risks of undue influence or overreaching justified a blanket ban. See also At a minimum, these cases demonstrate that States are entitled under some circumstances to encompass truthful, nondeceptive speech within a ban of a type of advertising that threatens substantial state interests. *678 In my view, a State could reasonably determine that the use of unsolicited legal advice "as bait with which to obtain agreement to represent [a client] for a fee," poses a sufficient threat to substantial state interests to justify a blanket prohibition. As the Court recognized in the State has a significant interest in preventing attorneys from using their professional expertise to overpower the will and judgment of laypeople who have not sought their advice. While it is true that a printed advertisement presents a lesser risk of overreaching than a personal encounter, the former is only one step removed from the latter. When legal advice is employed within an advertisement, the layperson may well conclude there is no means to judge its validity or applicability short of consulting the lawyer who placed the advertisement. This is particularly true where, as in appellant's Dalkon Shield advertisement, the legal advice is phrased in uncertain terms. A potential client who read the advertisement would probably be unable to determine whether "it is too late to take legal action against the manufacturer" without directly consulting the appellant. And at the time of that consultation, the same risks of undue influence, fraud, and overreaching that were noted in are present. The State also has a substantial interest in requiring that lawyers consistently exercise independent professional judgment on behalf of their clients. Given the exigencies of the marketplace, a rule permitting the use of legal advice in advertisements will encourage lawyers to present that advice most likely to bring potential clients into the office, rather than that advice which it is most in the interest of potential clients to hear. In a recent case in New for example, an attorney wrote unsolicited letters to victims of a massive disaster advising them that, in his professional opinion, the liability of the potential defendants is clear. Matter of Von Wiegen, cert. pending, *679 No. 84-1120. Of course, under the Court's opinion claims like this might be reached by branding the advice misleading or by promulgating a state rule requiring extensive disclosure of all relevant liability rules whenever such a claim is advanced. But even if such a claim were completely accurate — even if liability were in fact clear and the attorney actually thought it to be so — I believe the State could reasonably decide that a professional should not accept employment resulting from such unsolicited advice. See Ohio and other States afford attorneys ample opportunities to inform members of the public of their legal rights. See, e. g., Ohio DR 2-104(A)(4) (permitting attorneys to speak and write publicly on legal topics as long as they do not emphasize their own experience or reputation). Given the availability of alternative means to inform the public of legal rights, Ohio's rule against legal advice in advertisements is an appropriate means to assure the exercise of independent professional judgment by attorneys. A State might rightfully take pride that its citizens have access to its civil courts, ante, at 643, while at the same time opposing the use of self-interested legal advice to solicit clients. In the face of these substantial and legitimate state concerns, I cannot agree with the majority that Ohio DR 2-104(A) is unnecessary to the achievement of those interests. The Ohio rule may sweep in some advertisements containing helpful legal advice within its general prohibition. Nevertheless, I am not prepared to second-guess Ohio's longstanding and careful balancing of legitimate state interests merely because appellant here can invent a less restrictive rule. As the Iowa Supreme Court recently observed, "[t]he professional disciplinary system would be in chaos if violations could be defended on the ground the lawyer involved could think of a better rule." Committee On Professional *680 Ethics and Conduct of Ohio State Bar v. Humphrey, cert. pending, No. 84-1150. Because I would defer to the judgment of the States that have chosen to preclude use of unsolicited legal advice to entice clients, I respectfully dissent from Part III of the Court's opinion.

Justice Brennan

dissenting

National League of Cities v. Usery

https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/

https://www.courtlistener.com/api/rest/v3/clusters/109499/

1975-143

The Court concedes, as of course it must, that Congress enacted the 1974 amendments pursuant to its exclusive power under Art. I, § 8, cl. 3, of the Constitution *857 "[t]o regulate Commerce . . . among the several States." It must therefore be surprising that my Brethren should choose this bicentennial year of our independence to repudiate principles governing judicial interpretation of our Constitution settled since the time of Mr. Chief Justice John Marshall, discarding his postulate that the Constitution contemplates that restraints upon exercise by Congress of its plenary commerce power lie in the political process and not in the judicial process. For 152 years ago Mr. Chief Justice Marshall enunciated that principle to which, until today, his successors on this Court have been faithful. "[T]he power over commerce . . . is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . . 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 v. Ogden, 9 Wheat. 1, 197 (1824) (emphasis added).[1] Only 34 years ago, Wickard v. Filburn, 317 U.S. 111, 120 (1942), reaffirmed that "[a]t the beginning Chief Justice Marshall . . . made emphatic the embracing and penetrating nature of [Congress' commerce] power by *858 warning that effective restraints on its exercise must proceed from political rather than from judicial processes." My Brethren do not successfully obscure today's patent usurpation of the role reserved for the political process by their purported discovery in the Constitution of a restraint derived from sovereignty of the States on Congress' exercise of the commerce power. Mr. Chief Justice Marshall recognized that limitations "prescribed in the constitution," Gibbons v. Ogden, supra, at 196, restrain Congress' exercise of the power. See Parden v. Terminal R. Co., 377 U.S. 184, 191 (1964); Katzenbach v. McClung, 379 U.S. 294, 305 (1964); United States v. Darby, 312 U.S. 100, 114 (1941). Thus laws within the commerce power may not infringe individual liberties protected by the First Amendment, Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946); the Fifth Amendment, Leary v. United States, 395 U.S. 6 (1969); or the Sixth Amendment, United States v. Jackson, 390 U.S. 570 (1968). But there is no restraint based on state sovereignty requiring or permitting judicial enforcement anywhere expressed in the Constitution; our decisions over the last century and a half have explicitly rejected the existence of any such restraint on the commerce power.[2] *859 We said in United States v. California, 297 U.S. 175, 184 (1936), for example: "The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . [T]he power of the state is subordinate to the constitutional exercise of the granted federal power." This but echoed another principle emphasized by Mr. Chief Justice Marshall: "If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. . . . "The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, `any thing in the constitution or laws of any State to the contrary notwithstanding.' " M`Culloch v. Maryland, 4 Wheat. 316, 405-406 (1819). "[It] is not a controversy between equals" when the Federal Government "is asserting its sovereign power to regulate commerce . . . . [T]he interests of the nation are more important than those of any State." Sanitary District v. United States, 266 U.S. 405, 425-426 (1925). The commerce power "is an affirmative power commensurate with the national needs." North American Co. v. SEC, 327 U.S. 686, 705 (1946). The Constitution reserves to the States "only . . . . that authority which is consistent with and not opposed to the grant to Congress. There is no room in our scheme of government for the assertion of state power in hostility to the authorized *860 exercise of Federal power." The Minnesota Rate Cases, 230 U.S. 352, 399 (1913). "The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject matter specifically committed to its charge." In re Rahrer, 140 U.S. 545, 562 (1891). My Brethren thus have today manufactured an abstraction without substance, founded neither in the words of the Constitution nor on precedent. An abstraction having such profoundly pernicious consequences is not made less so by characterizing the 1974 amendments as legislation directed against the "States qua States." Ante, at 847. See ante, at 845, 854. Of course, regulations that this Court can say are not regulations of "commerce" cannot stand, Santa Cruz Fruit Packing Co. v. NLRB, 303 U.S. 453, 466 (1938), and in this sense "[t]he Court has ample power to prevent . . . `the utter destruction of the State as a sovereign political entity.' " Maryland v. Wirtz, 392 U.S. 183, 196 (1968).[3] But my *861 Brethren make no claim that the 1974 amendments are not regulations of "commerce"; rather they overrule Wirtz in disagreement with historic principles that United States v. California, supra, reaffirmed: "[W]hile the commerce power has limits, valid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation." Wirtz, supra, at 196-197. Clearly, therefore, my Brethren are also repudiating the long line of our precedents holding that a judicial finding that Congress has not unreasonably regulated a subject matter of "commerce" brings to an end the judicial role. "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." M`Culloch v. Maryland, supra, at 421. The reliance of my Brethren upon the Tenth Amendment as "an express declaration of [a state sovereignty] limitation," ante, at 842,[4] not only suggests that they *862 overrule governing decisions of this Court that address this question but must astound scholars of the Constitution. For not only early decisions, Gibbons v. Ogden, 9 Wheat., at 196; M`Culloch v. Maryland, supra, at 404-407; and Martin v. Hunter's Lessee, 1 Wheat. 304, 324-325 (1816), hold that nothing in the Tenth Amendment constitutes a limitation on congressional exercise of powers delegated by the Constitution to Congress. See F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 39-40 (1937). Rather, as the Tenth Amendment's significance was more recently summarized: "The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. . . . "From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted *863 end." United States v. Darby, 312 U. S., at 124 (emphasis added).[5] My Brethren purport to find support for their novel state-sovereignty doctrine in the concurring opinion of Mr. Chief Justice Stone in New York v. United States, 326 U.S. 572, 586 (1946). That reliance is plainly misplaced. That case presented the question whether the Constitution either required immunity of New York State's mineral water business from federal taxation or denied to the Federal Government power to lay the tax. The Court sustained the federal tax. Mr. Chief Justice Stone observed in his concurring opinion that "a federal tax which is not discriminatory as to the subject matter may nevertheless so affect the State, merely because it is a State that is being taxed, as to interfere unduly with the State's performance of its sovereign functions of government." Id., at 587. But the Chief Justice was addressing not the question of a state-sovereignty restraint upon the exercise of the commerce power, but rather the principle of implied immunity of the States *864 and Federal Government from taxation by the other: "The counterpart of such undue interference has been recognized since Marshall's day as the implied immunity of each of the dual sovereignties of our constitutional system from taxation by the other." Ibid. In contrast, the apposite decision that Term to the question whether the Constitution implies a state-sovereignty restraint upon congressional exercise of the commerce power is Case v. Bowles, 327 U.S. 92 (1946). The question there was whether the Emergency Price Control Act could apply to the sale by the State of Washington of timber growing on lands granted by Congress to the State for the support of common schools. The State contended that "there is a 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' . . . [and] that the Act cannot be applied to this sale because it was `for the purpose of gaining revenue to carry out an essential governmental function—the education of its citizens.' " Id., at 101. The Court emphatically rejected that argument, in an opinion joined by Mr. Chief Justice Stone, reasoning: "Since the Emergency Price Control Act has been sustained as a congressional exercise of the war power, the [State's] argument is that the extent of that power as applied to state functions depends on whether these are `essential' to the state government. The use of the same criterion in measuring the constitutional power of Congress to tax has proved to be unworkable, and we reject it as a guide in the field here involved. Cf. United States v. California, . . . 297 U.S. at 183-185." Ibid.[6] *865 The footnote to this statement rejected the suggested dichotomy between essential and nonessential state governmental functions as having "proved to be unworkable" by referring to "the several opinions in New York v. United States, 326 U.S. 572." Id., at 101 n. 7. Even more significant for our purposes is the Court's citation of United States v. California, a case concerned with Congress' power to regulate commerce, as supporting the rejection of the State's contention that state sovereignty is a limitation on Congress' war power. California directly presented the question whether any state-sovereignty restraint precluded application of the Federal Safety Appliance Act to a state owned and operated railroad. The State argued "that as the state is operating the railroad without profit, for the purpose of facilitating the commerce of the port, and is using the net proceeds of operation for harbor improvement, . . . it is engaged in performing a public function in its sovereign capacity and for that reason cannot constitutionally be subjected to the provisions of the federal Act." 297 U.S., at 183. Mr. Justice Stone rejected the contention in an opinion *866 for a unanimous Court. His rationale is a complete refutation of today's holding: "That in operating its railroad [the State] is acting within a power reserved to the states cannot be doubted. . . . The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . . "The analogy of the constitutional immunity of state instrumentalities from federal taxation, on which [California] relies, is not illuminating. That immunity is implied from the nature of our federal system and the relationship within it of state and national governments, and is equally a restriction on taxation by either of the instrumentalities of the other. Its nature requires that it be so construed as to allow to each government reasonable scope for its taxing power . . . which would be unduly curtailed if either by extending its activities could withdraw from the taxing power of the other subjects of taxation traditionally within it. . . . Hence we look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power. But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual." Id., at 183-185 (emphasis added).[7] *867 Today's repudiation of this unbroken line of precedents that firmly reject my Brethren's ill-conceived abstraction can only be regarded as a transparent cover for invalidating a congressional judgment with which they disagree.[8] The only analysis even remotely resembling that *868 adopted today is found in a line of opinions dealing with the Commerce Clause and the Tenth Amendment that ultimately provoked a constitutional crisis for the Court in the 1930's E. g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); United States v. Butler, 297 U.S. 1 (1936); Hammer v. Dagenhart, 247 U.S. 251 (1918). See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645 (1946). We tend to forget that the Court invalidated legislation during the Great Depression, not solely under the Due Process Clause, but also and primarily under the Commerce Clause and the Tenth Amendment. It may have been the eventual abandonment of that overly restrictive construction of the commerce power that spelled defeat for the Courtpacking plan, and preserved the integrity of this institution, id., at 682, see, e. g., United States v. Darby, 312 U.S. 100 (1941); Mulford v. Smith, 307 U.S. 38 (1939); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), but my Brethren today are transparently trying to cut back on that recognition of the scope of the commerce power. My Brethren's approach to this case is not far different from the dissenting opinions in the cases that averted the crisis. See, e. g., Mulford v. Smith, supra, at 51 (Butler, J., dissenting); NLRB v. Jones & Laughlin Steel Corp., supra, at 76 (McReynolds, J., dissenting).[9] *869 That no precedent justifies today's result is particularly clear from the awkward extension of the doctrine of state immunity from federal taxation—an immunity conclusively distinguished by Mr. Justice Stone in California, and an immunity that is "narrowly limited" because "the people of all the states have created the national government and are represented in Congress," Helvering v. Gerhardt, 304 U.S. 405, 416 (1938) (Stone, J.)[10]—to fashion a judicially enforceable restraint on *870 Congress' exercise of the commerce power that the Court has time and again rejected as having no place in our constitutional jurisprudence.[11] "[W]here [Congress] *871 keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere." Katzenbach v. McClung, 379 U. S., at 305. To argue, as do my Brethren, that the 1974 amendments are directed at the "States qua States," and "displac[e] state policies regarding the manner in which they will structure delivery of those governmental services which their citizens require," ante, at 847, and therefore "directly penaliz[e] the States for choosing to hire governmental employees on terms different from those which Congress has sought to impose," ante, at 849, is only to advance precisely the unsuccessful arguments made by the State of Washington in Case v. Bowles and the State of California in United States v. California. The 1974 amendments are, however, an entirely legitimate exercise of the commerce power, not in the slightest restrained by any doctrine of state sovereignty cognizable in this Court, as Case v. Bowles, United States v. California, Maryland v. Wirtz, and our other pertinent precedents squarely and definitively establish. Moreover, since Maryland v. Wirtz is overruled, the Fair Labor Standards Act is invalidated in its application to all state employees "in [any areas] that the States have regarded as integral parts of their governmental activities." Ante, at 854 n. 18. This standard is a meaningless limitation on the Court's state-sovereignty doctrine, and thus today's holding goes beyond even what the States of Washington and California urged in Case v. Bowles and United States v. California, and by its logic would overrule those cases and with them Parden v. Terminal R. Co., 377 U.S. 184 (1964), and certain reasoning in Employees v. Missouri Public Health Dept., 411 U.S. 279, 284-285 (1973). I cannot recall another instance in the Court's history when the reasoning of so many decisions covering so long a span of time has been *872 discarded in such a roughshod manner. That this is done without any justification not already often advanced and consistently rejected, clearly renders today's decision an ipse dixit reflecting nothing but displeasure with a congressional judgment. My Brethren's treatment of Fry v. United States, 421 U.S. 542 (1975), further illustrates the paucity of legal reasoning or principle justifying today's result. Although the Economic Stabilization Act "displace[d] the States' freedom," ante, at 852—the reason given for invalidating the 1974 amendments—the result in Fry is not disturbed since the interference was temporary and only a national program enforced by the Federal Government could have alleviated the country's economic crisis. Thus, although my Brethren by fiat strike down the 1974 amendments without analysis of countervailing national considerations, Fry by contrary logic remains undisturbed because, on balance, countervailing national considerations override the interference with the State's freedom. Moreover, it is sophistry to say the Economic Stabilization Act "displaced no state choices," ante, at 853, but that the 1974 amendments do, ante, at 848. Obviously the Stabilization Act—no less than every exercise of a national power delegated to Congress by the Constitution —displaced the State's freedom. It is absurd to suggest that there is a constitutionally significant distinction between curbs against increasing wages and curbs against paying wages lower than the federal minimum. Today's holding patently is in derogation of the sovereign power of the Nation to regulate interstate commerce. Can the States engage in businesses competing with the private sector and then come to the courts arguing that withdrawing the employees of those businesses from the private sector evades the power of the Federal Government to regulate commerce? See New York v. *873 United States, 326 U. S., at 582 (opinion of Frankfurter, J.). No principle given meaningful content by my Brethren today precludes the States from doing just that. Our historic decisions rejecting all suggestions that the States stand in a different position from affected private parties when challenging congressional exercise of the commerce power reflect that very concern. Maryland v. Wirtz, 392 U.S. 183 (1968); United States v. California, 297 U.S. 175 (1936). Fry only last Term emphasized "that States are not immune from all federal regulation under the Commerce Clause merely because of their sovereign status." 421 U.S., at 548 (emphasis added). For "[b]y empowering Congress to regulate commerce. . . the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation." Parden v. Terminal R. Co., supra, at 192; see Employees v. Missouri Public Health Dept., supra, at 286. Employment relations of States that subject themselves to congressional regulation by participating in regulable commerce are subject to congressional regulation. California v. Taylor, 353 U.S. 553, 568 (1957). Plainly it has gotten no earlier since we declared it "too late in the day to question the power of Congress under the Commerce Clause to regulate . . . activities and instrumentalities [in interstate commerce]. . . whether they be the activities and instrumentalities of private persons or of public agencies." California v. United States, 320 U.S. 577, 586 (1944). Also devoid of meaningful content is my Brethren's argument that the 1974 amendments "displac[e] State policies." Ante, at 847. The amendments neither impose policy objectives on the States nor deny the States complete freedom to fix their own objectives. My Brethren boldly assert that the decision as to wages and hours is an "undoubted attribute of state sovereignty," *874 ante, at 845, and then never say why. Indeed, they disclaim any reliance on the costs of compliance with the amendments in reaching today's result. Ante, at 846, 851. This would enable my Brethren to conclude that, however insignificant that cost, any federal regulation under the commerce power "will nonetheless significantly alter or displace the States' abilities to structure employer-employee relationships." Ante, at 851.[12]*875 This then would mean that, whether or not state wages are paid for the performance of an "essential" state function (whatever that may mean), the newly discovered state-sovereignty constraint could operate as a flat and absolute prohibition against congressional regulation of the wages and hours of state employees under the Commerce Clause. The portent of such a sweeping holding is so ominous for our constitutional jurisprudence as to leave one incredulous. Certainly the paradigm of sovereign action—action qua State—is in the enactment and enforcement of state laws. Is it possible that my Brethren are signaling abandonment of the heretofore unchallenged principle that Congress "can, if it chooses, entirely displace the States to the full extent of the far-reaching Commerce Clause"? Bethlehem Steel Co. v. New York State Board, 330 U.S. 767, 780 (1947) (opinion of Frankfurter, J.). Indeed, that principle sometimes invalidates state laws regulating subject matter of national importance even when Congress has been silent. Gibbons v. Ogden, 9 Wheat. 1 (1824); see Sanitary District v. United States, 266 U. S., at 426. In either case the ouster of state laws obviously curtails or prohibits the States' prerogatives to make policy choices respecting subjects clearly of greater significance to the "State qua State" than the minimum wage paid to state employees. The Supremacy Clause dictates this result under "the federal system of government embodied in the Constitution." Ante, at 852. My Brethren do more than turn aside longstanding constitutional jurisprudence that emphatically rejects today's conclusion. More alarming is the startling restructuring of our federal system, and the role they create therein for the federal judiciary. This Court is simply not at liberty to erect a mirror of its own conception of a desirable governmental structure. If the 1974 amendments *876 have any "vice," ante, at 849, my Brother STEVENS is surely right that it represents "merely . . . a policy issue which has been firmly resolved by the branches of government having power to decide such questions." Post, at 881. It bears repeating "that effective restraints on . . . exercise [of the commerce power] must proceed from political rather than from judicial processes." Wickard v. Filburn, 317 U. S., at 120. It is unacceptable that the judicial process should be thought superior to the political process in this area. Under the Constitution the Judiciary has no role to play beyond finding that Congress has not made an unreasonable legislative judgment respecting what is "commerce." My Brother BLACKMUN suggests that controlling judicial supervision of the relationship between the States and our National Government by use of a balancing approach diminishes the ominous implications of today's decision. Such an approach, however, is a thinly veiled rationalization for judicial supervision of a policy judgment that our system of government reserves to Congress. Judicial restraint in this area merely recognizes that the political branches of our Government are structured to protect the interests of the States, as well as the Nation as a whole, and that the States are fully able to protect their own interests in the premises. Congress is constituted of representatives in both the Senate and House elected from the States. The Federalist No. 45, pp. 311-312, No. 46, pp. 317-318 (J. Cooke ed. 1961) (J. Madison). Decisions upon the extent of federal intervention under the Commerce Clause into the affairs of the States are in that sense decisions of the States themselves. Judicial redistribution of powers granted the National Government by the terms of the Constitution violates the fundamental tenet of our federalism *877 that the extent of federal intervention into the States' affairs in the exercise of delegated powers shall be determined by the States' exercise of political power through their representatives in Congress. See Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colo. L. Rev. 543 (1954). There is no reason whatever to suppose that in enacting the 1974 amendments Congress, even if it might extensively obliterate state sovereignty by fully exercising its plenary power respecting commerce, had any purpose to do so. Surely the presumption must be to the contrary. Any realistic assessment of our federal political system, dominated as it is by representatives of the people elected from the States, yields the conclusion that it is highly unlikely that those representatives will ever be motivated to disregard totally the concerns of these States.[13] The Federalist No. 46, supra, at 319. Certainly this was the premise upon which the Constitution, as authoritatively explicated in Gibbons v. Ogden, was founded. Indeed, though the States are represented in *878 the National Government, national interests are not similarly represented in the States' political processes. Perhaps my Brethren's concern with the Judiciary's role in preserving federalism might better focus on whether Congress, not the States, is in greater need of this Court's protection. See New York v. United States, 326 U. S., at 582 (opinion of Frankfurter, J.); Helvering v. Gerhardt, 304 U. S., at 416. A sense of the enormous impact of States' political power is gained by brief reference to the federal budget. The largest estimate by any of the appellants of the cost impact of the 1974 amendments—$1 billion—pales in comparison with the financial assistance the States receive from the Federal Government. In fiscal 1977 the President's proposed budget recommends $60.5 billion in federal assistance to the States, exclusive of loans. Office of Management and Budget, Special Analyses: Budget of the United States Government, Fiscal Year 1977, p. 255. Appellants complain of the impact of the amended FLSA on police and fire departments, but the 1977 budget contemplates outlays for law enforcement assistance of $716 million. Id., at 258. Concern is also expressed about the diminished ability to hire students in the summer if States must pay them a minimum wage, but the Federal Government's "summer youth program" provides $400 million for 670,000 jobs. Ibid. Given this demonstrated ability to obtain funds from the Federal Government for needed state services, there is little doubt that the States' influence in the political process is adequate to safeguard their sovereignty.[14] *879 My Brethren's disregard for precedents recognizing these long-settled constitutional principles is painfully obvious in their cavalier treatment of Maryland v. Wirtz. Without even a passing reference to the doctrine of stare decisis, Wirtz—regarded as controlling only last Term, Fry v. United States, 421 U. S., at 548, and as good law in Employees v. Missouri Public Health Dept., 411 U. S., at 283—is by exercise of raw judicial power overruled. No effort is made to distinguish the FLSA amendments sustained in Wirtz from the 1974 amendments. We are told at the outset that "the `far-reaching implications' of Wirtz should be overruled," ante, at 840; later it is said that the "reasoning in Wirtz" is no longer "authoritative," ante, at 854. My Brethren then merely restate their essential-function test and say that Wirtz must "therefore" be overruled. Ante, at 855-856. There is no analysis whether Wirtz reached the correct result, apart from any flaws in reasoning, even though we are told that "there are obvious differences" between this case and Wirtz. Ante, at 855.[15] Are state and federal *880 interests being silently balanced, as in the discussion of Fry, ante, at 853? The best I can make of it is that the 1966 FLSA amendments are struck down and Wirtz is overruled on the basis of the conceptually unworkable essential-function test; and that the test is unworkable is demonstrated by my Brethren's inability to articulate any meaningful distinctions among state-operated railroads, see ante, at 854-855, n. 18, state-operated schools and hospitals, and state-operated police and fire departments. We are left then with a catastrophic judicial body blow at Congress' power under the Commerce Clause. Even if Congress may nevertheless accomplish its objectives— for example, by conditioning grants of federal funds upon compliance with federal minimum wage and overtime standards, cf. Oklahoma v. CSC, 330 U.S. 127, 144 (1947)—there is an ominous portent of disruption of our constitutional structure implicit in today's mischievous decision. I dissent. MR.

The Court concedes, as of course it must, that Congress enacted the 4 amendments pursuant to its exclusive power under Art I, 8, cl 3, of the Constitution *857 "[t]o regulate Commerce among the several " It must therefore be surprising that my Brethren should choose this bicentennial year of our independence to repudiate principles governing judicial interpretation of our Constitution settled since the time of Mr Chief Justice John Marshall, discarding his postulate that the Constitution contemplates that restraints upon exercise by Congress of its plenary commerce power lie in the political process and not in the judicial process For 152 years ago Mr Chief Justice Marshall enunciated that principle to which, until today, his successors on this Court have been faithful "[T]he power over commerce is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are 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" [1] Only 34 years ago, reaffirmed that "[a]t the beginning Chief Justice Marshall made emphatic the embracing and penetrating nature of [Congress' commerce] power by *858 warning that effective restraints on its exercise must proceed from political rather than from judicial processes" My Brethren do not successfully obscure today's patent usurpation of the role reserved for the political process by their purported discovery in the Constitution of a restraint derived from sovereignty of the on Congress' exercise of the commerce power Mr Chief Justice Marshall recognized that limitations "prescribed in the constitution," restrain Congress' exercise of the power See ; ; United Thus laws within the commerce power may not infringe individual liberties protected by the First Amendment, ; the Fifth Amendment, ; or the Sixth Amendment, United But there is no restraint based on state sovereignty requiring or permitting judicial enforcement anywhere expressed in the Constitution; our decisions over the last century and a half have explicitly rejected the existence of any such restraint on the commerce power[2] *859 We said in United for example: "The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution [T]he power of the state is subordinate to the constitutional exercise of the granted federal power" This but echoed another principle emphasized by Mr Chief Justice Marshall: "If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action This would seem to result necessarily from its nature It is the government of all; its powers are delegated by all; it represents all, and acts for all "The government of the United then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, `any thing in the constitution or laws of any State to the contrary notwithstanding' " "[It] is not a controversy between equals" when the Federal Government "is asserting its sovereign power to regulate commerce [T]he interests of the nation are more important than those of any State" Sanitary The commerce power "is an affirmative power commensurate with the national needs" North American The Constitution reserves to the "only that authority which is consistent with and not opposed to the grant to Congress There is no room in our scheme of government for the assertion of state power in hostility to the authorized *860 exercise of Federal power" The Minnesota Rate Cases, (3) "The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject matter specifically committed to its charge" In re Rahrer, My Brethren thus have today manufactured an abstraction without substance, founded neither in the words of the Constitution nor on precedent An abstraction having such profoundly pernicious consequences is not made less so by characterizing the 4 amendments as legislation directed against the " qua " Ante, at 847 See ante, at 845, 854 Of course, regulations that this Court can say are not regulations of "commerce" cannot stand, Santa Cruz Fruit Packing and in this sense "[t]he Court has ample power to prevent `the utter destruction of the State as a sovereign political entity' " [3] But my *861 Brethren make no claim that the 4 amendments are not regulations of "commerce"; rather they overrule Wirtz in disagreement with historic principles that United reaffirmed: "[W]hile the commerce power has limits, valid general regulations of commerce do not cease to be regulations of commerce because a State is involved If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation" Wirtz, - Clearly, therefore, my Brethren are also repudiating the long line of our precedents holding that a judicial finding that Congress has not unreasonably regulated a subject matter of "commerce" brings to an end the judicial role "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" The reliance of my Brethren upon the Tenth Amendment as "an express declaration of [a state sovereignty] limitation," ante, at 842,[4] not only suggests that they *862 overrule governing decisions of this Court that address this question but must astound scholars of the Constitution For not only early decisions, 9 Wheat, ; ; and hold that nothing in the Tenth Amendment constitutes a limitation on congressional exercise of powers delegated by the Constitution to Congress See F Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 39-40 Rather, as the Tenth Amendment's significance was more recently summarized: "The amendment states but a truism that all is retained which has not been surrendered There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers "From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted *863 end" United [5] My Brethren purport to find support for their novel state-sovereignty doctrine in the concurring opinion of Mr Chief Justice Stone in New That reliance is plainly misplaced That case presented the question whether the Constitution either required immunity of New York State's mineral water business from federal taxation or denied to the Federal Government power to lay the tax The Court sustained the federal tax Mr Chief Justice Stone observed in his concurring opinion that "a federal tax which is not discriminatory as to the subject matter may nevertheless so affect the State, merely because it is a State that is being taxed, as to interfere unduly with the State's performance of its sovereign functions of government" But the Chief Justice was addressing not the question of a state-sovereignty restraint upon the exercise of the commerce power, but rather the principle of implied immunity of the *864 and Federal Government from taxation by the other: "The counterpart of such undue interference has been recognized since Marshall's day as the implied immunity of each of the dual sovereignties of our constitutional system from taxation by the other" In contrast, the apposite decision that Term to the question whether the Constitution implies a state-sovereignty restraint upon congressional exercise of the commerce power is The question there was whether the Emergency Price Control Act could apply to the sale by the State of Washington of timber growing on lands granted by Congress to the State for the support of common schools The State contended that "there is a 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' [and] that the Act cannot be applied to this sale because it was `for the purpose of gaining revenue to carry out an essential governmental function—the education of its citizens' " The Court emphatically rejected that argument, in an opinion joined by Mr Chief Justice Stone, reasoning: "Since the Emergency Price Control Act has been sustained as a congressional exercise of the war power, the [State's] argument is that the extent of that power as applied to state functions depends on whether these are `essential' to the state government The use of the same criterion in measuring the constitutional power of Congress to tax has proved to be unworkable, and we reject it as a guide in the field here involved Cf United -185" [6] *865 The footnote to this statement rejected the suggested dichotomy between essential and nonessential state governmental functions as having "proved to be unworkable" by referring to "the several opinions in New " n 7 Even more significant for our purposes is the Court's citation of United a case concerned with Congress' power to regulate commerce, as supporting the rejection of the State's contention that state sovereignty is a limitation on Congress' war power directly presented the question whether any state-sovereignty restraint precluded application of the Federal Safety Appliance Act to a state owned and operated railroad The State argued "that as the state is operating the railroad without profit, for the purpose of facilitating the commerce of the port, and is using the net proceeds of operation for harbor improvement, it is engaged in performing a public function in its sovereign capacity and for that reason cannot constitutionally be subjected to the provisions of the federal Act" 297 US, at 183 Mr Justice Stone rejected the contention in an opinion *866 for a unanimous Court His rationale is a complete refutation of today's holding: "That in operating its railroad [the State] is acting within a power reserved to the states cannot be doubted The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution "The analogy of the constitutional immunity of state instrumentalities from federal taxation, on which [] relies, is not illuminating That immunity is implied from the nature of our federal system and the relationship within it of state and national governments, and is equally a restriction on taxation by either of the instrumentalities of the other Its nature requires that it be so construed as to allow to each government reasonable scope for its taxing power which would be unduly curtailed if either by extending its activities could withdraw from the taxing power of the other subjects of taxation traditionally within it Hence we look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power But there is no such limitation upon the plenary power to regulate commerce The state can no more deny the power if its exercise has been authorized by Congress than can an individual" [7] *867 Today's repudiation of this unbroken line of precedents that firmly reject my Brethren's ill-conceived abstraction can only be regarded as a transparent cover for invalidating a congressional judgment with which they disagree[8] The only analysis even remotely resembling that *868 adopted today is found in a line of opinions dealing with the Commerce Clause and the Tenth Amendment that ultimately provoked a constitutional crisis for the Court in the 1930's E g, Carter v Carter Coal Co, 298 US 238 ; United v Butler, 297 US 1 ; Hammer v Dagenhart, 247 US 251 (8) See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv L Rev 645 We tend to forget that the Court invalidated legislation during the Great Depression, not solely under the Due Process Clause, but also and primarily under the Commerce Clause and the Tenth Amendment It may have been the eventual abandonment of that overly restrictive construction of the commerce power that spelled defeat for the Courtpacking plan, and preserved the integrity of this institution, id, see, e g, United ; Mulford v 307 US 38 ; NLRB v Jones & Laughlin Steel Corp, 301 US 1 but my Brethren today are transparently trying to cut back on that recognition of the scope of the commerce power My Brethren's approach to this case is not far different from the dissenting opinions in the cases that averted the crisis See, e g, Mulford v (Butler, J, dissenting); NLRB v Jones & Laughlin Steel Corp, (McReynolds, J, dissenting)[9] *869 That no precedent justifies today's result is particularly clear from the awkward extension of the doctrine of state immunity from federal taxation—an immunity conclusively distinguished by Mr Justice Stone in and an immunity that is "narrowly limited" because "the people of all the states have created the national government and are represented in Congress," Helvering v 304 US 405, (Stone, J)[10]—to fashion a judicially enforceable restraint on *870 Congress' exercise of the commerce power that the Court has time and again rejected as having no place in our constitutional jurisprudence[11] "[W]here [Congress] *871 keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere" 379 U S, at To argue, as do my Brethren, that the 4 amendments are directed at the " qua" and "displac[e] state policies regarding the manner in which they will structure delivery of those governmental services which their citizens require," ante, at 847, and therefore "directly penaliz[e] the for choosing to hire governmental employees on terms different from those which Congress has sought to impose," ante, at 849, is only to advance precisely the unsuccessful arguments made by the State of Washington in and the State of in United The 4 amendments are, however, an entirely legitimate exercise of the commerce power, not in the slightest restrained by any doctrine of state sovereignty cognizable in this Court, as United and our other pertinent precedents squarely and definitively establish Moreover, since is overruled, the Fair Labor Standards Act is invalidated in its application to all state employees "in [any areas] that the have regarded as integral parts of their governmental activities" Ante, at 854 n 18 This standard is a meaningless limitation on the Court's state-sovereignty doctrine, and thus today's holding goes beyond even what the of Washington and urged in and United and by its logic would overrule those cases and with them and certain reasoning in Employees v Missouri Public Health Dept, 411 US 279, (3) I cannot recall another instance in the Court's history when the reasoning of so many decisions covering so long a span of time has been *872 discarded in such a roughshod manner That this is done without any justification not already often advanced and consistently rejected, clearly renders today's decision an ipse dixit reflecting nothing but displeasure with a congressional judgment My Brethren's treatment of Fry v United 421 US 542 (5), further illustrates the paucity of legal reasoning or principle justifying today's result Although the Economic Stabilization Act "displace[d] the ' freedom," ante, at 852—the reason given for invalidating the 4 amendments—the result in Fry is not disturbed since the interference was temporary and only a national program enforced by the Federal Government could have alleviated the country's economic crisis Thus, although my Brethren by fiat strike down the 4 amendments without analysis of countervailing national considerations, Fry by contrary logic remains undisturbed because, on balance, countervailing national considerations override the interference with the State's freedom Moreover, it is sophistry to say the Economic Stabilization Act "displaced no state choices," ante, at 853, but that the 4 amendments do, ante, at 848 Obviously the Stabilization Act—no less than every exercise of a national power delegated to Congress by the Constitution —displaced the State's freedom It is absurd to suggest that there is a constitutionally significant distinction between curbs against increasing wages and curbs against paying wages lower than the federal minimum Today's holding patently is in derogation of the sovereign power of the Nation to regulate interstate commerce Can the engage in businesses competing with the private sector and then come to the courts arguing that withdrawing the employees of those businesses from the private sector evades the power of the Federal Government to regulate commerce? See New York v *873 United 326 U S, at 582 (opinion of Frankfurter, J) No principle given meaningful content by my Brethren today precludes the from doing just that Our historic decisions rejecting all suggestions that the stand in a different position from affected private parties when challenging congressional exercise of the commerce power reflect that very concern ; United Fry only last Term emphasized "that are not immune from all federal regulation under the Commerce Clause merely because of their sovereign status" 421 US, at 548 For "[b]y empowering Congress to regulate commerce the necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation" ; see Employees v Missouri Public Health Dept, Employment relations of that subject themselves to congressional regulation by participating in regulable commerce are subject to congressional regulation v Taylor, 353 US 553, Plainly it has gotten no earlier since we declared it "too late in the day to question the power of Congress under the Commerce Clause to regulate activities and instrumentalities [in interstate commerce] whether they be the activities and instrumentalities of private persons or of public agencies" v United 320 US 577, Also devoid of meaningful content is my Brethren's argument that the 4 amendments "displac[e] State policies" Ante, at 847 The amendments neither impose policy objectives on the nor deny the complete freedom to fix their own objectives My Brethren boldly assert that the decision as to wages and hours is an "undoubted attribute of state sovereignty," *874 ante, at 845, and then never say why Indeed, they disclaim any reliance on the costs of compliance with the amendments in reaching today's result Ante, at 846, 851 This would enable my Brethren to conclude that, however insignificant that cost, any federal regulation under the commerce power "will nonetheless significantly alter or displace the ' abilities to structure employer-employee relationships" Ante, at 851[12]*875 This then would mean that, whether or not state wages are paid for the performance of an "essential" state function (whatever that may mean), the newly discovered state-sovereignty constraint could operate as a flat and absolute prohibition against congressional regulation of the wages and hours of state employees under the Commerce Clause The portent of such a sweeping holding is so ominous for our constitutional jurisprudence as to leave one incredulous Certainly the paradigm of sovereign action—action qua State—is in the enactment and enforcement of state laws Is it possible that my Brethren are signaling abandonment of the heretofore unchallenged principle that Congress "can, if it chooses, entirely displace the to the full extent of the far-reaching Commerce Clause"? Bethlehem Steel Co v New York State Board, 330 US 767, (opinion of Frankfurter, J) Indeed, that principle sometimes invalidates state laws regulating subject matter of national importance even when Congress has been silent ; see Sanitary 266 U S, at 426 In either case the ouster of state laws obviously curtails or prohibits the ' prerogatives to make policy choices respecting subjects clearly of greater significance to the "State qua State" than the minimum wage paid to state employees The Supremacy Clause dictates this result under "the federal system of government embodied in the Constitution" Ante, at 852 My Brethren do more than turn aside longstanding constitutional jurisprudence that emphatically rejects today's conclusion More alarming is the startling restructuring of our federal system, and the role they create therein for the federal judiciary This Court is simply not at liberty to erect a mirror of its own conception of a desirable governmental structure If the 4 amendments *876 have any "vice," ante, at 849, my Brother STEVENS is surely right that it represents "merely a policy issue which has been firmly resolved by the branches of government having power to decide such questions" Post, at 881 It bears repeating "that effective restraints on exercise [of the commerce power] must proceed from political rather than from judicial processes" 317 U S, at It is unacceptable that the judicial process should be thought superior to the political process in this area Under the Constitution the Judiciary has no role to play beyond finding that Congress has not made an unreasonable legislative judgment respecting what is "commerce" My Brother BLACKMUN suggests that controlling judicial supervision of the relationship between the and our National Government by use of a balancing approach diminishes the ominous implications of today's decision Such an approach, however, is a thinly veiled rationalization for judicial supervision of a policy judgment that our system of government reserves to Congress Judicial restraint in this area merely recognizes that the political branches of our Government are structured to protect the interests of the as well as the Nation as a whole, and that the are fully able to protect their own interests in the premises Congress is constituted of representatives in both the Senate and House elected from the The No 45, pp 311-312, No 46, pp 317-318 (J Cooke ed 1) (J Madison) Decisions upon the extent of federal intervention under the Commerce Clause into the affairs of the are in that sense decisions of the themselves Judicial redistribution of powers granted the National Government by the terms of the Constitution violates the fundamental tenet of our federalism *877 that the extent of federal intervention into the ' affairs in the exercise of delegated powers shall be determined by the ' exercise of political power through their representatives in Congress See Wechsler, The Political Safeguards of Federalism: The Role of the in the Composition and Selection of the National Government, 54 Colo L Rev 543 (1954) There is no reason whatever to suppose that in enacting the 4 amendments Congress, even if it might extensively obliterate state sovereignty by fully exercising its plenary power respecting commerce, had any purpose to do so Surely the presumption must be to the contrary Any realistic assessment of our federal political system, dominated as it is by representatives of the people elected from the yields the conclusion that it is highly unlikely that those representatives will ever be motivated to disregard totally the concerns of these [13] The No 46, Certainly this was the premise upon which the Constitution, as authoritatively explicated in was founded Indeed, though the are represented in *878 the National Government, national interests are not similarly represented in the ' political processes Perhaps my Brethren's concern with the Judiciary's role in preserving federalism might better focus on whether Congress, not the is in greater need of this Court's protection See New 326 U S, at 582 (opinion of Frankfurter, J); Helvering v 304 U S, at A sense of the enormous impact of ' political power is gained by brief reference to the federal budget The largest estimate by any of the appellants of the cost impact of the 4 amendments—$1 billion—pales in comparison with the financial assistance the receive from the Federal Government In fiscal 7 the President's proposed budget recommends $605 billion in federal assistance to the exclusive of loans Office of Management and Budget, Special Analyses: Budget of the United Government, Fiscal Year 7, p 255 Appellants complain of the impact of the amended FLSA on police and fire departments, but the 7 budget contemplates outlays for law enforcement assistance of $716 million Concern is also expressed about the diminished ability to hire students in the summer if must pay them a minimum wage, but the Federal Government's "summer youth program" provides $400 million for 670,000 jobs Given this demonstrated ability to obtain funds from the Federal Government for needed state services, there is little doubt that the ' influence in the political process is adequate to safeguard their sovereignty[14] *879 My Brethren's disregard for precedents recognizing these long-settled constitutional principles is painfully obvious in their cavalier treatment of Without even a passing reference to the doctrine of stare decisis, Wirtz—regarded as controlling only last Term, Fry v United 421 U S, at 548, and as good law in Employees v Missouri Public Health Dept, 411 U S, at 283—is by exercise of raw judicial power overruled No effort is made to distinguish the FLSA amendments sustained in Wirtz from the 4 amendments We are told at the outset that "the `far-reaching implications' of Wirtz should be overruled," ante, at 840; later it is said that the "reasoning in Wirtz" is no longer "authoritative," ante, at 854 My Brethren then merely restate their essential-function test and say that Wirtz must "therefore" be overruled Ante, at 855-856 There is no analysis whether Wirtz reached the correct result, apart from any flaws in reasoning, even though we are told that "there are obvious differences" between this case and Wirtz Ante, at 855[15] Are state and federal *880 interests being silently balanced, as in the discussion of Fry, ante, at 853? The best I can make of it is that the 6 FLSA amendments are struck down and Wirtz is overruled on the basis of the conceptually unworkable essential-function test; and that the test is unworkable is demonstrated by my Brethren's inability to articulate any meaningful distinctions among state-operated railroads, see ante, at 854-855, n 18, state-operated schools and hospitals, and state-operated police and fire departments We are left then with a catastrophic judicial body blow at Congress' power under the Commerce Clause Even if Congress may nevertheless accomplish its objectives— for example, by conditioning grants of federal funds upon compliance with federal minimum wage and overtime standards, cf Oklahoma v CSC, 330 US 127, —there is an ominous portent of disruption of our constitutional structure implicit in today's mischievous decision I dissent MR

Justice Blackmun

majority

United States v. Sioux Nation

https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/

https://www.courtlistener.com/api/rest/v3/clusters/110335/

1979-150

This case concerns the Black Hills of South Dakota, the Great Sioux Reservation, and a colorful, and in many respects tragic, chapter in the history of the Nation's West. Although the litigation comes down to a claim of interest since 1877 on an award of over $17 million, it is necessary, in order to understand the controversy, to review at some length the chronology of the case and its factual setting. I For over a century now the Sioux Nation has claimed that the United States unlawfully abrogated the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635, in Art. II of which the United States pledged that the Great Sioux Reservation, including the Black Hills, would be "set apart for the absolute and undisturbed use and occupation of the Indians herein named." Id., at 636. The Fort Laramie Treaty was concluded at the culmination of the Powder River War of 1866-1867, a series of military engagements in which the Sioux tribes, led by their great chief, Red Cloud, fought to protect the integrity of earlier-recognized treaty lands from the incursion of white settlers.[1] The Fort Laramie Treaty included several agreements central to the issues presented in this case. First, it established the Great Sioux Reservation, a tract of land bounded on the east by the Missouri River, on the south by the northern border of the State of Nebraska, on the north by the forty-sixth parallel of north latitude, and on the west by the one *375 hundred and fourth meridian of west longitude,[2] in addition to certain reservations already existing east of the Missouri. The United States "solemnly agree[d]" that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in [this] territory." Ibid. Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. Id., at 637. In order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years. Id., at 639.[3] Third, in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 1851, to occupy territories outside the reservation, while reserving their "right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase." Ibid. The Indians also expressly agreed to withdraw all opposition to the building *376 of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River. Ibid. Fourth, Art. XII of the treaty provided: "No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians, occupying or interested in the same." Ibid.[4] The years following the treaty brought relative peace to the Dakotas, an era of tranquility that was disturbed, however, by renewed speculation that the Black Hills, which were included in the Great Sioux Reservation, contained vast quantities of gold and silver.[5] In 1874 the Army planned and undertook an exploratory expedition into the Hills, both for the purpose of establishing a military outpost from which to control those Sioux who had not accepted the terms of the Fort Laramie Treaty, and for the purpose of investigating "the country about which dreamy stories have been told." D. Jackson, Custer's Gold 14 (1966) (quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War). Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. *377 Custer's journey began at Fort Abraham Lincoln on the Missouri River on July 2, 1874. By the end of that month they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country.[6] Custer's florid descriptions of the mineral and timber resources of the Black Hills, and the land's suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the "opening" of the Hills for settlement.[7] The only obstacle to "progress" was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux. Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the Indians. For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that *378 he would "give a cordial support to the settlement of the Black Hills," should Congress decide to "open up the country for settlement, by extinguishing the treaty rights of the Indians." App. 62-63. Sheridan's instructions were published in local newspapers. See id., at 63.[8] Eventually, however, the Executive Branch of the Government decided to abandon the Nation's treaty obligation to preserve the integrity of the Sioux territory. In a letter dated November 9, 1875, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the Interior, and the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, "it being his belief that such resistance only increased their desire and complicated the troubles." Id., at 59. These orders were to be enforced "quietly," ibid., and the President's decision was to remain "confidential." Id., at 59-60 (letter from Sheridan to Sherman). With the Army's withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward *379 that end, the Secretary of the Interior, in the spring of 1875, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the Indians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.[9] In the winter of 1875-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 1875, for reasons that are not entirely clear, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as "hostiles." Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all hostile Sioux, including those Indians exercising their treaty-protected hunting rights, to the War Department. The Army's campaign against the "hostiles" led to Sitting Bull's notable victory over Custer's forces at the battle of the Little Big Horn on June 25. That victory, of course, was short-lived, and those Indians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government.[10] *380 In the meantime, Congress was becoming increasingly dissatisfied with the failure of the Sioux living on the reservation to become self-sufficient.[11] The Sioux' entitlement to subsistence rations under the terms of the Fort Laramie Treaty *381 had expired in 1872. Nonetheless, in each of the two following years, over $1 million was appropriated for feeding the Sioux. In August 1876, Congress enacted an appropriations bill providing that "hereafter there shall be no appropriation made for the subsistence" of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting. Act of Aug. 15, 1876, 19 Stat. 176, 192.[12] Toward this end, Congress requested the President to appoint another commission to negotiate with the Sioux for the cession of the Black Hills. This commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the Indians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux' survival. In setting out to obtain the tribes' agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. Instead, the treaty was presented just to Sioux *382 chiefs and their leading men. It was signed by only 10% of the adult male Sioux population.[13] Congress resolved the impasse by enacting the 1876 "agreement" into law as the Act of Feb. 28, 1877 (1877 Act). 19 Stat. 254. The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms *383 of the Manypenny Commission's "agreement" with the Sioux leaders.[14] The passage of the 1877 Act legitimized the settlers' invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this Nation's solemn obligation to reserve the Hills in perpetuity for occupation by the Indians. One historian of the Sioux Nation commented on Indian reaction to the Act in the following words: "The Sioux thus affected have not gotten over talking about that treaty yet, and during the last few years they have maintained an organization called the Black Hills Treaty Association, which holds meetings each year at the various agencies for the purpose of studying the *384 treaty with the intention of presenting a claim against the government for additional reimbursements for the territory ceded under it. Some think that Uncle Sam owes them about $9,000,000 on the deal, but it will probably be a hard matter to prove it." F. Fiske, The Taming of the Sioux 132 (1917). Fiske's words were to prove prophetic. II Prior to 1946, Congress had not enacted any mechanism of general applicability by which Indian tribes could litigate treaty claims against the United States.[15] The Sioux, however, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them a forum for adjudication of all claims against the United States "under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof." Act of June 3, 1920, ch. 222, 41 Stat. 738. Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in 1942. In a lengthy and unanimous opinion, the court concluded that it was not authorized by the Act of June 3, 1920, to question whether the compensation afforded the Sioux by Congress in 1877 was an adequate price for the Black Hills, and that the Sioux' claim in this regard was a moral claim not protected by the Just Compensation Clause. Sioux Tribe v. United States, 97 Ct. Cl. 613 (1942), cert. denied, 318 U.S. 789 (1943). In 1946, Congress passed the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S. C. § 70 et seq., creating a new forum to hear and determine all tribal grievances that had *385 arisen previously. In 1950, counsel for the Sioux resubmitted the Black Hills claim to the Indian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their case. Sioux Tribe v. United States, 2 Ind. Cl. Comm'n 646 (1954), aff'd, 146 F. Supp. 229 (Ct. Cl. 1956). The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance, alleging that the Commission's decision had been based on a record that was inadequate, due to the failings of the Sioux' former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence. On November 19, 1958, the Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. App. 265-266; see Sioux Tribe v. United States, 182 Ct. Cl. 912 (1968) (summary of proceedings). Following the Sioux' filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the Indians and the Government. Finally, in October 1968, the Commission set down three questions for briefing and determination: (1) What land and rights did the United States acquire from the Sioux by the 1877 Act? (2) What, if any, consideration was given for that land and those rights? And (3) if there was no consideration for the Government's acquisition of the land and rights under the 1877 Act, was there any payment for such acquisition? App. 266. Six years later, by a 4-to-1 vote, the Commission reached a preliminary decision on these questions. Sioux Nation v. United States, 33 Ind. Cl. Comm'n 151 (1974). The Commission first held that the 1942 Court of Claims decision did not bar the Sioux' Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier *386 suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. See n. 14, supra. Under these circumstances, the Commission concluded that the consideration given the Indians in the 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills Applying the principles announced by the Court of Claims in Three Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968), the Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the Indians just compensation for the taking of the Black Hills.[16] The Government filed an appeal with the Court of Claims *387 from the Commission's interlocutory order, arguing alternatively that the Sioux' Fifth Amendment claim should have been barred by principles of res judicata and collateral estoppel, or that the 1877 Act did not effect a taking of the Black Hills for which just compensation was due. Without reaching the merits, the Court of Claims held that the Black Hills claim was barred by the res judicata effect of its 1942 decision. United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298 (1975). The court's majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the Indians. This followed from the Government's failure to appeal the Commission's holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under § 2 of the Indian Claims Commission Act, 60 Stat. 1050, 25 U.S. C. § 70a (5). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to interest. 207 Ct. Cl., at 237, 518 F. 2d, at 1299.[17] *388 The court affirmed the Commission's holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17.5 million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act. See n. 16, supra. The court also remarked upon President Grant's duplicity in breaching the Government's treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: "A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe." 207 Ct. Cl., at 241, 518 F. 2d, at 1302. Nonetheless, the court held that the merits of the Sioux' taking claim had been reached in 1942, and whether resolved "rightly or wrongly," id., at 249, 518 F.2d, at 1306, the claim was now barred by res judicata. The court observed that interest could not be awarded the Sioux on judgments obtained pursuant to the Indian Claims Commission Act, and that while Congress could correct this situation, the court could not. Ibid.[18] The Sioux petitioned this Court for a writ of certiorari, but that petition was denied. 423 U.S. 1016 (1975). The case returned to the Indian Claims Commission, where the value of the rights-of-way obtained by the Government through the 1877 Act was determined to be $3,484, and where it was decided that the Government had made no payments to the Sioux that could be considered as offsets. App. 316. *389 The Government then moved the Commission to enter a final award in favor of the Sioux in the amount of $17.5 million, see n. 16, supra, but the Commission deferred entry of final judgment in view of legislation then pending in Congress that dealt with the case. On March 13, 1978, Congress passed a statute providing for Court of Claims review of the merits of the Indian Claims Commission's judgment that the 1877 Act effected a taking of the Black Hills, without regard to the defenses of res judicata and collateral estoppel. The statute authorized the Court of Claims to take new evidence in the case, and to conduct its review of the merits de novo. Pub. L. 95-243, 92 Stat. 153, amending § 20 (b) of the Indian Claims Commission Act. See 25 U.S. C. § 70s (b) (1976 ed., Supp. II). Acting pursuant to that statute, a majority of the Court of Claims, sitting en banc, in an opinion by Chief Judge Friedman, affirmed the Commission's holding that the 1877 Act effected a taking of the Black Hills and of rights-of-way across the reservation. 220 Ct. Cl. 442, 601 F.2d 1157 (1979).[19] In doing so, the court applied the test it had earlier articulated in Fort Berthold, 182 Ct. Cl., at 553, 390 F.2d, at 691, asking whether Congress had made "a good faith effort to give the Indians the full value of the land," 220 Ct. Cl., at 452, 601 F. 2d, at 1162, in order to decide whether the 1877 Act had effected a taking or whether it had been a noncompensable act of congressional guardianship over tribal property. The court characterized the Act as a taking, an exercise of Congress' power of eminent domain over Indian property. It distinguished broad statements seemingly leading to a contrary *390 result in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), as inapplicable to a case involving a claim for just compensation. 220 Ct. Cl., at 465, 601 F. 2d, at 1170.[20] The court thus held that the Sioux were entitled to an award of interest, at the annual rate of 5%, on the principal sum of $17.1 million, dating from 1877.[21] We granted the Government's petition for a writ of certiorari, 444 U.S. 989 (1979), in order to review the important constitutional questions presented by this case, questions not only of longstanding concern to the Sioux, but also of significant economic import to the Government. III Having twice denied petitions for certiorari in this litigation, see 318 U.S. 789 (1943); 423 U.S. 1016 (1975), we are confronted with it for a third time as a result of the amendment, above noted, to the Indian Claims Commission Act of 1946, 25 U.S. C. § 70s (b) (1976 ed., Supp. II), which *391 directed the Court of Claims to review the merits of the Black Hills takings claim without regard to the defense of res judicata. The amendment, approved March 13, 1978, provides: "Notwithstanding any other provision of law, upon application by the claimants within thirty days from the date of the enactment of this sentence, the Court of Claims shall review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the Indian Claims Commission entered February 15, 1974, adjudging that the Act of February 28, 1877 (19 Stat. 254), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. In conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo." 92 Stat. 153. Before turning to the merits of the Court of Claims' conclusion that the 1877 Act effected a taking of the Black Hills, we must consider the question whether Congress, in enacting this 1978 amendment, "has inadvertently passed the limit which separates the legislative from the judicial power." United States v. Klein, 13 Wall. 128, 147 (1872). A There are two objections that might be raised to the constitutionality of this amendment, each framed in terms of the doctrine of separation of powers. The first would be that Congress impermissibly has disturbed the finality of a judicial decree by rendering the Court of Claims' earlier judgments in this case mere advisory opinions. See Hayburn's Case, 2 Dall. 409, 410-414 (1792) (setting forth the views of three Circuit Courts, including among their complements Mr. Chief *392 Justice Jay, and Justices Cushing, Wilson, Blair, and Iredell, that the Act of Mar. 23, 1792, 1 Stat. 243, was unconstitutional because it subjected the decisions of the Circuit Courts concerning eligibility for pension benefits to review by the Secretary of War and the Congress). The objection would take the form that Congress, in directing the Court of Claims to reach the merits of the Black Hills claim, effectively reviewed and reversed that court's 1975 judgment that the claim was barred by res judicata, or its 1942 judgment that the claim was not cognizable under the Fifth Amendment. Such legislative review of a judicial decision would interfere with the independent functions of the Judiciary. The second objection would be that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left the court no adjudicatory function to perform. See United States v. Klein, 13 Wall., at 146; Yakus v. United States, 321 U.S. 414, 467-468 (1944) (Rutledge, J., dissenting). Of course, in the context of this amendment, that objection would have to be framed in terms of Congress' removal of a single issue from the Court of Claims' purview, the question whether res judicata or collateral estoppel barred the Sioux' claim. For in passing the amendment, Congress left no doubt that the Court of Claims was free to decide the merits of the takings claim in accordance with the evidence it found and applicable rules of law. See n. 23, infra. These objections to the constitutionality of the amendment were not raised by the Government before the Court of Claims. At oral argument in this Court, counsel for the United States, upon explicit questioning, advanced the position that the amendment was not beyond the limits of legislative power.[22] The question whether the amendment *393 impermissibly interfered with judicial power was debated, however, in the House of Representatives, and that body concluded that the Government's waiver of a "technical legal defense" in order to permit the Court of Claims to reconsider the merits of the Black Hills claim was within Congress' power to enact.[23] *394 The question debated on the floor of the House is one the answer to which is not immediately apparent. It requires us to examine the proper role of Congress and the courts in *395 recognizing and determining claims against the United States, in light of more general principles concerning the legislative and judicial roles in our tripartite system of government. Our examination of the amendment's effect, and of this Court's precedents, leads us to conclude that neither of the two separation-of-powers objections described above is presented by this legislation. B Our starting point is Cherokee Nation v. United States, 270 U.S. 476 (1926). That decision concerned the Special Act of Congress, dated March 3, 1919, 40 Stat. 1316, conferring jurisdiction upon the Court of Claims "to hear, consider, and determine the claim of the Cherokee Nation against the United States for interest, in addition to all other interest heretofore allowed and paid, alleged to be owing from the United States to the Cherokee Nation on the funds arising from the judgment of the Court of Claims of May eighteenth, nineteen hundred and five." In the judgment referred to by the Act, the Court of Claims had allowed 5% simple interest on four Cherokee claims, to accrue from the date of liability. Cherokee Nation v. United States, 40 Ct. Cl. 252 (1905). This Court had affirmed that judgment, including the interest award. United States v. Cherokee Nation, 202 U.S. 101, *396 123-126 (1906). Thereafter, and following payment of the judgment, the Cherokee presented to Congress a new claim that they were entitled to compound interest on the lump sum of principal and interest that had accrued up to 1895. It was this claim that prompted Congress, in 1919, to reconfer jurisdiction on the Court of Claims to consider the Cherokee's entitlement to that additional interest. Ultimately, this Court held that the Cherokee were not entitled to the payment of compound interest on the original judgment awarded by the Court of Claims. 270 U.S., at 487-496. Before turning to the merits of the interest claim, however, the Court considered "the effect of the Act of 1919 in referring the issue in this case to the Court of Claims." Id., at 485-486. The Court's conclusion concerning that question bears close examination: "The judgment of this Court in the suit by the Cherokee Nation against the United States, in April, 1906 (202 U.S. 101), already referred to, awarded a large amount of interest. The question of interest was considered and decided, and it is quite clear that but for the special Act of 1919, above quoted, the question here mooted would have been foreclosed as res judicata. In passing the Act, Congress must have been well advised of this, and the only possible construction therefore to be put upon it is that Congress has therein expressed its desire, so far as the question of interest is concerned, to waive the effect of the judgment as res judicata, and to direct the Court of Claims to re-examine it and determine whether the interest therein allowed was all that should have been allowed, or whether it should be found to be as now claimed by the Cherokee Nation. The Solicitor General, representing the Government, properly concedes this to be the correct view. The power of Congress to waive such an adjudication of course is clear." Id., at 486 (last emphasis supplied). *397 The holding in Cherokee Nation that Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States is dispositive of the question considered here. Moreover, that holding is consistent with a substantial body of precedent affirming the broad constitutional power of Congress to define and "to pay the Debts . . . of the United States." U. S. Const., Art. I, § 8, cl. 1. That precedent speaks directly to the separation-of-powers objections discussed above. The scope of Congress' power to pay the Nation's debts seems first to have been construed by this Court in United States v. Realty Co., 163 U.S. 427 (1896). There, the Court stated: "The term `debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a `debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded." Id., at 440. Other decisions clearly establish that Congress may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim against the United States, as Congress did in this case and in Cherokee Nation. Although the Court in Cherokee Nation did not expressly tie its conclusion that Congress had the power to waive the res judicata effect of a judgment in favor of the United States to Congress' constitutional *398 power to pay the Nation's debts, the Cherokee Nation opinion did rely on the decision in Nock v. United States, 2 Ct. Cl. 451 (1867). See 270 U.S., at 486. In Nock, the Court of Claims was confronted with the precise question whether Congress invaded judicial power when it enacted a joint resolution, 14 Stat. 608, directing that court to decide a damages claim against the United States "in accordance with the principles of equity and justice," even though the merits of the claim previously had been resolved in the Government's favor. The court rejected the Government's argument that the joint resolution was unconstitutional as an exercise of "judicial powers" because it had the effect of setting aside the court's prior judgment. Rather, the court concluded: "It is unquestionable that the Constitution has invested Congress with no judicial powers; it cannot be doubted that a legislative direction to a court to find a judgment in a certain way would be little less than a judgment rendered directly by Congress. But here Congress do not attempt to award judgment, nor to grant a new trial judicially; neither have they reversed a decree of this court; nor attempted in any way to interfere with the administration of justice. Congress are here to all intents and purposes the defendants, and as such they come into court through this resolution and say that they will not plead the former trial in bar, nor interpose the legal objection which defeated a recovery before." 2 Ct. Cl., at 457-458 (emphases in original). The Nock court thus expressly rejected the applicability of separation-of-powers objections to a congressional decision to waive the res judicata effect of a judgment in the Government's favor.[24] *399 The principles set forth in Cherokee Nation and Nock were substantially reaffirmed by this Court in Pope v. United States, 323 U.S. 1 (1944). There Congress had enacted special legislation conferring jurisdiction upon the Court of *400 Claims, "notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon" certain claims against the United States arising out of a construction contract. Special Act of Feb. 27, 1942, § 1, 56 Stat. 1122. The court was also directed to determine Pope's claims and render judgment upon them according to a particular formula for measuring the value of the work that he had performed. The Court of Claims construed the Special Act as deciding the questions of law presented by the case, and leaving it the role merely of computing the amount of the judgment for the claimant according to a mathematical formula. Pope v. United States, 100 Ct. Cl. 375, 379-380, 53 F. Supp 570, 571-572 (1944). Based upon that reading of the Act, and this Court's decision in United States v. Klein, 13 Wall. 128 (1872) (see discussion infra, at 402-405), the Court of Claims held that the Act unconstitutionally interfered with judicial independence. 100 Ct. Cl., at 380-382, 53 F. Supp., at 572-573. It distinguished Cherokee Nation as a case in which Congress granted a claimant a new trial, without directing the courts how to decide the case. 100 Ct. Cl., at 387, and n. 5, 53 F. Supp., at 575, and n. 5. This Court reversed the Court of Claims' judgment. In *401 doing so, the Court differed with the Court of Claims' interpretation of the effect of the Special Act. First, the Court held that the Act did not disturb the earlier judgment denying Pope's claim for damages. "While inartistically drawn the Act's purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner's claims where no obligation existed before." 323 U.S., at 9. Second, the Court held that Congress' recognition of Pope's claim was within its power to pay the Nation's debts, and that its use of the Court of Claims as an instrument for exercising that power did not impermissibly invade the judicial function: "We perceive no constitutional obstacle to Congress' imposing on the Government a new obligation where there had been none before, for work performed by petitioner which was beneficial to the Government and for which Congress thought he had not been adequately compensated. The power of Congress to provide for the payment of debts, conferred by § 8 of Article I of the Constitution, is not restricted to payment of those obligations which are legally binding on the Government. It extends to the creation of such obligations in recognition of claims which are merely moral or honorary. . . . United States v. Realty Co., 163 U.S. 427. . . . Congress, by the creation of a legal, in recognition of a moral, obligation to pay petitioner's claims plainly did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. [Footnote citing Nock and other cases omitted.] Nor do we think it did so by directing that court to pass upon petitioner's claims in conformity to the particular rule of liability prescribed by the Special Act and to give judgment accordingly. . . . See Cherokee Nation v. United States, 270 U.S. 476, 486." Id., at 9-10. *402 In explaining its holding that the Special Act did not invade the judicial province of the Court of Claims by directing it to reach its judgment with reference to a specified formula, the Court stressed that Pope was required to pursue his claim in the usual manner, that the earlier factual findings made by the Court of Claims were not necessarily rendered conclusive by the Act, and that, even if Congress had stipulated to the facts, it was still a judicial function for the Court of Claims to render judgment on consent. Id., at 10-12. To be sure, the Court in Pope specifically declined to consider "just what application the principles announced in the Klein case could rightly be given to a case in which Congress sought, pendente lite, to set aside the judgment of the Court of Claims in favor of the Government and to require relitigation of the suit." Id., at 8-9. The case before us might be viewed as presenting that question. We conclude, however, that the separation-of-powers question presented in this case has already been answered in Cherokee Nation, and that that answer is completely consistent with the principles articulated in Klein. The decision in United States v. Klein, 13 Wall. 128 (1872), arose from the following facts: Klein was the administrator of the estate of V. F. Wilson, the deceased owner of property that had been sold by agents of the Government during the War Between the States. Klein sued the United States in the Court of Claims for the proceeds of that sale. His lawsuit was based on the Abandoned and Captured Property Act of March 3, 1863, 12 Stat. 820, which afforded such a cause of action to noncombatant property owners upon proof that they had "never given any aid or comfort to the present rebellion." Following the enactment of this legislation, President Lincoln had issued a proclamation granting "a full pardon" to certain persons engaged "in the existing rebellion" who desired to resume their allegiance to the Government, upon the condition that they take and maintain a prescribed *403 oath. This pardon was to have the effect of restoring those persons' property rights. See 13 Stat. 737. The Court of Claims held that Wilson's taking of the amnesty oath had cured his participation in "the . . . rebellion," and that his administrator. Klein, was thus entitled to the proceeds of the sale. Wilson v. United States, 4 Ct. Cl. 559 (1869). The Court of Claims' decision in Klein's case was consistent with this Court's later decision in a similar case, United States v. Padelford, 9 Wall. 531 (1870), holding that the Presidential pardon purged a participant "of whatever offence against the laws of the United States he had committed . . . and relieved [him] from any penalty which he might have incurred." Id., at 543. Following the Court's announcement of the judgment in Padelford, however, Congress enacted a proviso to the appropriations bill for the Court of Claims. The proviso had three effects: First, no Presidential pardon or amnesty was to be admissible in evidence on behalf of a claimant in the Court of Claims as the proof of loyalty required by the Abandoned and Captured Property Act. Second, the Supreme Court was to dismiss, for want of jurisdiction, any appeal from a judgment of the Court of Claims in favor of a claimant who had established his loyalty through a pardon. Third, the Court of Claims henceforth was to treat a claimant's receipt of a Presidential pardon, without protest, as conclusive evidence that he had given aid and comfort to the rebellion, and to dismiss any lawsuit on his behalf for want of jurisdiction. Act of July 12, 1870, ch. 251, 16 Stat. 230, 235. The Government's appeal from the judgment in Klein's case was decided by this Court following the enactment of the appropriations proviso. This Court held the proviso unconstitutional notwithstanding Congress' recognized power "to make `such exceptions from the appellate jurisdiction' [of the Supreme Court] as should seem to it expedient." 13 Wall., at 145. See U. S. Const., Art. III, § 2, cl. 2. This *404 holding followed from the Court's interpretation of the proviso's effect: "[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have." 13 Wall., at 145. Thus construed, the proviso was unconstitutional in two respects: First, it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor. "The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it? ..... ". . . Can [Congress] prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself." Id., at 146-147. Second, the rule prescribed by the proviso "is also liable to just exception as impairing the effect of a pardon, and thus *405 infringing the constitutional power of the Executive." Id., at 147. The Court held that it would not serve as an instrument toward the legislative end of changing the effect of a Presidential pardon. Id., at 148. It was, of course, the former constitutional objection held applicable to the legislative proviso in Klein that the Court was concerned about in Pope. But that objection is not applicable to the case before us for two reasons. First, of obvious importance to the Klein holding was the fact that Congress was attempting to decide the controversy at issue in the Government's own favor. Thus, Congress' action could not be grounded upon its broad power to recognize and pay the Nation's debts. Second, and even more important, the proviso at issue in Klein had attempted "to prescribe a rule for the decision of a cause in a particular way." 13 Wall., at 146. The amendment at issue in the present case, however, like the Special Act at issue in Cherokee Nation, waived the defense of res judicata so that a legal claim could be resolved on the merits. Congress made no effort in either instance to control the Court of Claims' ultimate decision of that claim. See n. 23, supra.[25] *406 C When Congress enacted the amendment directing the Court of Claims to review the merits of the Black Hills claim, it neither brought into question the finality of that court's earlier judgments, nor interfered with that court's judicial function in deciding the merits of the claim. When the Sioux returned to the Court of Claims following passage of the *407 amendment, they were there in pursuit of judicial enforcement of a new legal right. Congress had not "reversed" the Court of Claims' holding that the claim was barred by res judicata, nor, for that matter, had it reviewed the 1942 decision rejecting the Sioux' claim on the merits. As Congress explicitly recognized, it only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments. Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits. That court was left completely free to reaffirm its 1942 judgment that the Black Hills claim was not cognizable under the Fifth Amendment, if upon its review of the facts and law, such a decision was warranted. In this respect, the amendment before us is a far cry from the legislatively enacted "consent judgment" called into question in Pope, yet found constitutional as a valid exercise of Congress' broad power to pay the Nation's debts. And, for the same reasons, this amendment clearly is distinguishable from the proviso to this Court's appellate jurisdiction held unconstitutional in Klein. In sum, as this Court implicitly held in Cherokee Nation, Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does not violate the doctrine of separation of powers. IV A In reaching its conclusion that the 1877 Act effected a taking of the Black Hills for which just compensation was due the Sioux under the Fifth Amendment, the Court of Claims *408 relied upon the "good faith effort" test developed in its earlier decision in Three Tribes of Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d 686 (1968). The Fort Berthold test had been designed to reconcile two lines of cases decided by this Court that seemingly were in conflict. The first line, exemplified by Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), recognizes "that Congress possesse[s] a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians." Id., at 565. The second line, exemplified by the more recent decision in Shoshone Tribe v. United States, 299 U.S. 476 (1937), concedes Congress' paramount power over Indian property, but holds, nonetheless, that "[t]he power does not extend so far as to enable the Government `to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation.'" Id., at 497 (quoting United States v. Creek Nation, 295 U.S. 103, 110 (1935)). In Shoshone Tribe, Mr. Justice Cardozo, in speaking for the Court, expressed the distinction between the conflicting principles in a characteristically pithy phrase: "Spoliation is not management." 299 U.S., at 498. The Fort Berthold test distinguishes between cases in which one or the other principle is applicable: "It is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the Indians, exercising its plenary powers over the Indians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the Indians' property within the meaning of the Fifth Amendment to the Constitution. In any given situation in which Congress has acted with regard to Indian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time. *409 "Some guideline must be established so that a court can identify in which capacity Congress is acting. The following guideline would best give recognition to the basic distinction between the two types of congressional action: Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee." 182 Ct. Cl., at 553, 390 F.2d, at 691. Applying the Fort Berthold test to the facts of this case, the Court of Claims concluded that, in passing the 1877 Act, Congress had not made a good-faith effort to give the Sioux the full value of the Black Hills. The principal issue presented by this case is whether the legal standard applied by the Court of Claims was erroneous.[26] B The Government contends that the Court of Claims erred insofar as its holding that the 1877 Act effected a taking of the Black Hills was based on Congress' failure to indicate affirmatively that the consideration given the Sioux was of *410 equivalent value to the property rights ceded to the Government. It argues that "the true rule is that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 52. The Government derives support for this rule principally from this Court's decision in Lone Wolf v. Hitchcock. In Lone Wolf, representatives of the Kiowa, Comanche, and Apache Tribes brought an equitable action against the Secretary of the Interior and other governmental officials to enjoin them from enforcing the terms of an Act of Congress that called for the sale of lands held by the Indians pursuant to the Medicine Lodge Treaty of 1867, 15 Stat. 581. That treaty, like the Fort Laramie Treaty of 1868, included a provision that any future cession of reservation lands would be without validity or force "unless executed and signed by at least three fourths of all the adult male Indians occupying the same." Id., at 585. The legislation at issue, Act of June 6, 1900, 31 Stat. 672, was based on an agreement with the Indians that had not been signed by the requisite number of adult males residing on the reservation. This Court's principal holding in Lone Wolf was that "the legislative power might pass laws in conflict with treaties made with the Indians." 187 U.S., at 566. The Court stated: "The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, *411 and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians." Ibid. (Emphasis in original.)[27] The Court, therefore, was not required to consider the contentions of the Indians that the agreement ceding their lands had been obtained by fraud, and had not been signed by the requisite number of adult males. "[A]ll these matters, in any event, were solely within the domain of the legislative authority and its action is conclusive upon the courts." Id., at 568. In the penultimate paragraph of the opinion, however, the Court in Lone Wolf went on to make some observations seemingly directed to the question whether the Act at issue might constitute a taking of Indian property without just compensation. The Court there stated: "The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U.S. 294, decided at this term, where it was held that full administrative power was possessed by Congress over Indian *412 tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional." Ibid. (Emphasis supplied.) The Government relies on the italicized sentence in the quotation above to support its view "that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 52. Several adjoining passages in the paragraph, however, lead us to doubt whether the Lone Wolf Court meant to state a general rule applicable to cases such as the one before us. First, Lone Wolf presented a situation in which Congress "purported to give an adequate consideration" for the treaty lands taken from the Indians. In fact, the Act at issue set aside for the Indians a sum certain of $2 million for surplus reservation lands surrendered to the United States. 31 Stat. 678; see 187 U.S., at 555. In contrast, the background of the 1877 Act "reveals a situation where Congress did not `purport' to provide `adequate consideration,' nor was there *413 any meaningful negotiation or arm's-length bargaining, nor did Congress consider it was paying a fair price." 220 Ct. Cl., at 475, 601 F. 2d, at 1176 (concurring opinion). Second, given the provisions of the Act at issue in Lone Wolf, the Court reasonably was able to conclude that "the action of Congress now complained of was but . . . a mere change in the form of investment of Indian tribal property." Under the Act of June 6, 1900, each head of a family was to be allotted a tract of land within the reservation of not less than 320 acres, an additional 480,000 acres of grazing land were set aside for the use of the tribes in common, and $2 million was paid to the Indians for the remaining surplus. 31 Stat. 677-678. In contrast, the historical background to the opening of the Black Hills for settlement, and the terms of the 1877 Act itself, see Part I, supra, would not lead one to conclude that the Act effected "a mere change in the form of investment of Indian tribal property." Third, it seems significant that the views of the Court in Lone Wolf were based, in part, on a holding that "Congress possessed full power in the matter." Earlier in the opinion the Court stated: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government." 187 U.S., at 565. Thus, it seems that the Court's conclusive presumption of congressional good faith was based in large measure on the idea that relations between this Nation and the Indian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in takings cases, and was expressly laid to rest in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 (1977).[28] *414 Fourth, and following up on the political question holding, the Lone Wolf opinion suggests that where the exercise of congressional power results in injury to Indian rights, "relief must be sought by an appeal to that body for redress and not to the courts." Unlike Lone Wolf, this case is one in which the Sioux have sought redress from Congress, and the Legislative Branch has responded by referring the matter to the courts for resolution. See Parts II and III, supra. Where Congress waives the Government's sovereign immunity, and expressly directs the courts to resolve a taking claim on the merits, there would appear to be far less reason to apply Lone Wolf's principles of deference. See United States v. Tillamooks, 329 U.S. 40, 46 (1946) (plurality opinion). The foregoing considerations support our conclusion that the passage from Lone Wolf here relied upon by the Government has limited relevance to this case. More significantly, Lone Wolf's presumption of congressional good faith has little to commend it as an enduring principle for deciding questions *415 of the kind presented here. In every case where a taking of treaty-protected property is alleged,[29] a reviewing court must recognize that tribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that "this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in . . . a guardianship and to pertinent constitutional restrictions." United States v. Creek Nation, 295 U. S., at 109-110. Accord: Menominee Tribe v. United States, 391 U.S. 404, 413 (1968); FPC v. Tuscarora Indian Nation, 362 U.S. 99, 122 (1960); United States v. Klamath Indians, 304 U.S. 119, 123 (1938); United States v. Shoshone Tribe, 304 U.S. 111, 115-116 (1938); Shoshone Tribe v. United States, 299 U.S. 476, 497-498 (1937). As the Court of Claims recognized in its decision below, the question whether a particular measure was appropriate for protecting and advancing the tribe's interests, and therefore not subject to the constitutional command of the Just Compensation Clause, is factual in nature. The answer must be based on a consideration of all the evidence presented. We do not mean to imply that a reviewing court is to second-guess, from the perspective of hindsight, a legislative judgment that a particular measure would serve the best interests of the tribe. We do mean to require courts, in considering whether a particular congressional action was taken in pursuance of Congress' power to manage and control tribal lands *416 for the Indians' welfare, to engage in a thoroughgoing and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry. C We turn to the question whether the Court of Claims' inquiry in this case was guided by an appropriate legal standard. We conclude that it was. In fact, we approve that court's formulation of the inquiry as setting a standard that ought to be emulated by courts faced with resolving future cases presenting the question at issue here: "In determining whether Congress has made a good faith effort to give the Indians the full value of their lands when the government acquired [them], we therefore look to the objective facts as revealed by Acts of Congress, congressional committee reports, statements submitted to Congress by government officials, reports of special commissions appointed by Congress to treat with the Indians, and similar evidence relating to the acquisition. . . . "The `good faith effort' and `transmutation of property' concepts referred to in Fort Berthold are opposite sides of the same coin. They reflect the traditional rule that a trustee may change the form of trust assets as long as he fairly (or in good faith) attempts to provide his ward with property of equivalent value. If he does that, he cannot be faulted if hindsight should demonstrate a lack of precise equivalence. On the other hand, if a trustee (or the government in its dealings with the Indians) does not attempt to give the ward the fair equivalent of what he acquires from him, the trustee to that extent has taken rather than transmuted the property of the ward. In other words, an essential element of the inquiry under the Fort Berthold guideline is determining the adequacy of the consideration the government gave for the Indian lands it acquired. That inquiry *417 cannot be avoided by the government's simple assertion that it acted in good faith in its dealings with the Indians." 220 Ct. Cl., at 451, 601 F. 2d, at 1162.[30] D We next examine the factual findings made by the Court of Claims, which led it to the conclusion that the 1877 Act effected a taking. First, the Court found that "[t]he only item of `consideration' that possibly could be viewed as showing an attempt by Congress to give the Sioux the `full value' of the land the government took from them was the requirement to furnish them with rations until they became self-sufficient." 220 Ct. Cl., at 458, 601 F. 2d, at 1166. This finding is fully supported by the record, and the Government does not seriously contend otherwise.[31] *418 Second, the court found, after engaging in an exhaustive review of the historical record, that neither the Manypenny Commission, nor the congressional Committees that approved the 1877 Act, nor the individual legislators who spoke on its behalf on the floor of Congress, ever indicated a belief that the Government's obligation to provide the Sioux with rations constituted a fair equivalent for the value of the Black Hills and the additional property rights the Indians were forced to *419 surrender. See id., at 458-462, 601 F.2d, at 1166-1168. This finding is unchallenged by the Government. A third finding lending some weight to the Court's legal conclusion was that the conditions placed by the Government on the Sioux' entitlement to rations, see n. 14, supra, "further show that the government's undertaking to furnish rations to the Indians until they could support themselves did not reflect a congressional decision that the value of the rations was the equivalent of the land the Indians were giving up, but instead was an attempt to coerce the Sioux into capitulating to congressional demands." 220 Ct. Cl., at 461, 601 F. 2d, at 1168. We might add only that this finding is fully consistent with similar observations made by this Court nearly a century ago in an analogous case. In Choctaw Nation v. United States, 119 U.S. 1, 35 (1886), the Court held, over objections by the Government, that an earlier award made by the Senate on an Indian tribe's treaty claim "was fair, just, and equitable." The treaty at issue had called for the removal of the Choctaw Nation from treaty-protected lands in exchange for payments for the tribe's subsistence for one year, payments for cattle and improvements on the new reservation, an annuity of $20,000 for 20 years commencing upon removal, and the provision of educational and agricultural services. Id., at 38. Some years thereafter the Senate had awarded the Indians a substantial recovery based on the latter treaty's failure to compensate the Choctaw for the lands they had ceded. Congress later enacted a jurisdictional statute which permitted the United States to contest the fairness of the Senate's award as a settlement of the Indian's treaty claim. In rejecting the Government's arguments, and accepting the Senate's award as "furnish[ing] the nearest approximation to the justice and right of the case," id., at 35, this Court observed: "It is notorious as a historical fact, as it abundantly appears from the record in this case, that great pressure *420 had to be brought to bear upon the Indians to effect their removal, and the whole treaty was evidently and purposely executed, not so much to secure to the Indians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is, that no money consideration is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside in the Choctaw Nation, and computed to amount to over ten millions of acres." Id., at 37-38. As for the payments that had been made to the Indians in order to induce them to remove themselves from their treaty lands, the Court, in words we find applicable to the 1877 Act, concluded: "It is nowhere expressed in the treaty that these payments are to be made as the price of the lands ceded; and they are all only such expenditures as the government of the United States could well afford to incur for the mere purpose of executing its policy in reference to the removal of the Indians to their new homes. As a consideration for the value of the lands ceded by the treaty, they must be regarded as a meagre pittance." Id., at 38 (emphasis supplied). These conclusions, in light of the historical background to the opening of the Black Hills for settlement, see Part I, supra, seem fully applicable to Congress' decision to remove the Sioux from that valuable tract of land, and to extinguish their off-reservation hunting rights. Finally, the Court of Claims rejected the Government's contention that the fact that it subsequently had spent at least $43 million on rations for the Sioux (over the course of three-quarters of a century) established that the 1877 Act was an act of guardianship taken in the Sioux' best interest. The court concluded: "The critical inquiry is what Congress *421 did—and how it viewed the obligation it was assuming—at the time it acquired the land, and not how much it ultimately cost the United States to fulfill the obligation." 220 Ct. Cl., at 462, 601 F. 2d, at 1168. It found no basis for believing that Congress, in 1877, anticipated that it would take the Sioux such a lengthy period of time to become self-sufficient, or that the fulfillment of the Government's obligation to feed the Sioux would entail the large expenditures ultimately made on their behalf. Ibid. We find no basis on which to question the legal standard applied by the Court of Claims, or the findings it reached, concerning Congress' decision to provide the Sioux with rations. E The aforementioned findings fully support the Court of Claims' conclusion that the 1877 Act appropriated the Black Hills "in circumstances which involved an implied undertaking by [the United States] to make just compensation to the tribe."[32]United States v. Creek Nation, 295 U. S., at 111. *422 We make only two additional observations about this case. First, dating at least from the decision in Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 657 (1890), this Court has recognized that Indian lands, to which a tribe holds recognized title, "are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner." In the same decision the Court emphasized that the owner of such lands "is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed." Id., at 659. The Court of Claims gave effect to this principle when it held that the Government's uncertain and indefinite obligation to provide the Sioux with rations until they became self-sufficient did not constitute adequate consideration for the Black Hills. Second, it seems readily apparent to us that the obligation to provide rations to the Sioux was undertaken in order to ensure them a means of surviving their transition from the nomadic life of the hunt to the agrarian lifestyle Congress had chosen for them. Those who have studied the Government's reservation policy during this period of our Nation's history agree. See n. 11, supra. It is important to recognize *423 that the 1877 Act, in addition to removing the Black Hills from the Great Sioux Reservation, also ceded the Sioux' hunting rights in a vast tract of land extending beyond the boundaries of that reservation. See n. 14, supra. Under such circumstances, it is reasonable to conclude that Congress' undertaking of an obligation to provide rations for the Sioux was a quid pro quo for depriving them of their chosen way of life, and was not intended to compensate them for the taking of the Black Hills.[33] V In sum, we conclude that the legal analysis and factual findings of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect "a mere change in the form of investment of Indian tribal property." Lone *424 Wolf v. Hitchcock, 187 U. S., at 568. Rather, the 1877 Act effected a taking of tribal property, property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to the Sioux Nation, and that obligation, including an award of interest, must now, at last, be paid. The judgment of the Court of Claims is affirmed. It is so ordered. MR. JUSTICE WHITE, concurring in part and concurring in the judgment.

This case concerns the Black Hills of South Dakota, the Great Sioux Reservation, and a colorful, and in many respects tragic, chapter in the history of the 's West. Although the litigation comes down to a claim of interest since 1877 on an award of over $17 million, it is necessary, in order to understand the controversy, to review at some length the chronology of the case and its factual setting. For over a century now the Sioux has claimed that the United States unlawfully abrogated the Fort Laramie Treaty of April 29, 1868, in Art. of which the United States pledged that the Great Sioux Reservation, including the Black Hills, would be "set apart for the absolute and undisturbed use and occupation of the ndians herein named." The Fort Laramie Treaty was concluded at the culmination of the Powder River War of 1866-, a series of military engagements in which the Sioux tribes, led by their great chief, Red Cloud, fought to protect the integrity of earlier-recognized treaty lands from the incursion of white settlers.[1] The Fort Laramie Treaty included several agreements central to the issues presented in this First, it established the Great Sioux Reservation, a tract of land bounded on the east by the Missouri River, on the south by the northern border of the State of Nebraska, on the north by the forty-sixth parallel of north latitude, and on the west by the one *37 hundred and fourth meridian of west longitude,[2] in addition to certain reservations already existing east of the Missouri. The United States "solemnly agree[d]" that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in [this] territory." Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. n order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years.[3] Third, in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 181, to occupy territories outside the reservation, while reserving their "right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase." The ndians also expressly agreed to withdraw all opposition to the building *376 of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River. Fourth, Art. X of the treaty provided: "No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said ndians, unless executed and signed by at least three fourths of all the adult male ndians, occupying or interested in the same." [4] The years following the treaty brought relative peace to the Dakotas, an era of tranquility that was disturbed, however, by renewed speculation that the Black Hills, which were included in the Great Sioux Reservation, contained vast quantities of gold and silver.[] n 1874 the Army planned and undertook an exploratory expedition into the Hills, both for the purpose of establishing a military outpost from which to control those Sioux who had not accepted the terms of the Fort Laramie Treaty, and for the purpose of investigating "the country about which dreamy stories have been told." D. Jackson, Custer's Gold (1966) (quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War). Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. *377 Custer's journey began at Fort Abraham Lincoln on the Missouri River on July 2, 1874. By the end of that month they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country.[6] Custer's florid descriptions of the mineral and timber resources of the Black Hills, and the land's suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the "opening" of the Hills for settlement.[7] The only obstacle to "progress" was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux. Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the ndians. For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that *378 he would "give a cordial support to the settlement of the Black Hills," should Congress decide to "open up the country for settlement, by extinguishing the treaty rights of the ndians." App. 62-63. Sheridan's instructions were published in local newspapers. See[8] Eventually, however, the Executive Branch of the Government decided to abandon the 's treaty obligation to preserve the integrity of the Sioux territory. n a letter dated November 9, 187, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the nterior, and the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, "it being his belief that such resistance only increased their desire and complicated the troubles." These orders were to be enforced "quietly," ib and the President's decision was to remain "confidential." -60 With the Army's withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward *379 that end, the Secretary of the nterior, in the spring of 187, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the ndians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.[9] n the winter of 187-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 187, for reasons that are not entirely clear, the Commissioner of ndian Affairs sent instructions to the ndian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as "hostiles." Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the nterior nonetheless relinquished jurisdiction over all hostile Sioux, including those ndians exercising their treaty-protected hunting rights, to the War Department. The Army's campaign against the "hostiles" led to Sitting Bull's notable victory over Custer's forces at the battle of the Little Big Horn on June 2. That victory, of course, was short-lived, and those ndians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government.[10] *380 n the meantime, Congress was becoming increasingly dissatisfied with the failure of the Sioux living on the reservation to become self-sufficient.[] The Sioux' entitlement to subsistence rations under the terms of the Fort Laramie Treaty *381 had expired in 1872. Nonetheless, in each of the two following years, over $1 million was appropriated for feeding the Sioux. n August 1876, Congress enacted an appropriations bill providing that "hereafter there shall be no appropriation made for the subsistence" of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting. Act of Aug. 1, 1876, 192.[12] Toward this end, Congress requested the President to appoint another commission to negotiate with the Sioux for the cession of the Black Hills. This commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the ndians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux' survival. n setting out to obtain the tribes' agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. nstead, the treaty was presented just to Sioux *382 chiefs and their leading men. t was signed by only 10% of the adult male Sioux population.[13] Congress resolved the impasse by enacting the 1876 "agreement" into law as the Act of Feb. 28, 1877 (1877 Act). The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms *383 of the Manypenny Commission's "agreement" with the Sioux leaders.[] The passage of the 1877 Act legitimized the settlers' invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this 's solemn obligation to reserve the Hills in perpetuity for occupation by the ndians. One historian of the Sioux commented on ndian reaction to the Act in the following words: "The Sioux thus affected have not gotten over talking about that treaty yet, and during the last few years they have maintained an organization called the Black Hills Treaty Association, which holds meetings each year at the various agencies for the purpose of studying the *3 treaty with the intention of presenting a claim against the government for additional reimbursements for the territory ceded under it. Some think that Uncle Sam owes them about $9,000,000 on the deal, but it will probably be a hard matter to prove it." F. Fiske, The Taming of the Sioux 132 (1917). Fiske's words were to prove prophetic. Prior to 19, Congress had not enacted any mechanism of general applicability by which ndian tribes could litigate treaty claims against the United States.[1] The Sioux, however, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them a forum for adjudication of all claims against the United States "under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof." Act of June 3, 1920, ch. 222, Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in n a lengthy and unanimous opinion, the court concluded that it was not authorized by the Act of June 3, 1920, to question whether the compensation afforded the Sioux by Congress in 1877 was an adequate price for the Black Hills, and that the Sioux' claim in this regard was a moral claim not protected by the Just Compensation Clause. Sioux cert. denied, n 19, Congress passed the ndian Claims Commission Act, 2 U.S. C. 70 et seq., creating a new forum to hear and determine all tribal grievances that had *38 arisen previously. n 190, counsel for the Sioux resubmitted the Black Hills claim to the ndian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their Sioux 2 nd. Cl. Comm'n 6 (194), aff'd, The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance, alleging that the Commission's decision had been based on a record that was inadequate, due to the failings of the Sioux' former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence. On November 19, 198, the Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. App. 26-266; see Sioux Following the Sioux' filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the ndians and the Government. Finally, in October the Commission set down three questions for briefing and determination: (1) What land and rights did the United States acquire from the Sioux by the 1877 Act? (2) What, if any, consideration was given for that land and those rights? And (3) if there was no consideration for the Government's acquisition of the land and rights under the 1877 Act, was there any payment for such acquisition? App. 266. Six years later, by a 4-to-1 vote, the Commission reached a preliminary decision on these questions. Sioux 33 nd. Cl. Comm'n (1974). The Commission first held that the Court of Claims decision did not bar the Sioux' Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier *386 suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. See n. Under these circumstances, the Commission concluded that the consideration given the ndians in the 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills Applying the principles announced by the Court of Claims in Three Tribes of Fort the Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the ndians just compensation for the taking of the Black Hills.[] The Government filed an appeal with the Court of Claims *387 from the Commission's interlocutory order, arguing alternatively that the Sioux' Fifth Amendment claim should have been barred by principles of res judicata and collateral estoppel, or that the 1877 Act did not effect a taking of the Black Hills for which just compensation was due. Without reaching the merits, the Court of Claims held that the Black Hills claim was barred by the res judicata effect of its decision. United The court's majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the ndians. This followed from the Government's failure to appeal the Commission's holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under 2 of the ndian Claims Commission Act, 2 U.S. C. 70a (). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to 18 F. 2d, at 1299.[17] *388 The court affirmed the Commission's holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17. million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act. See n. The court also remarked upon President Grant's duplicity in breaching the Government's treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: "A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe." 18 F. 2d, at 1302. Nonetheless, the court held that the merits of the Sioux' taking claim had been reached in and whether resolved "rightly or wrongly," the claim was now barred by res judicata. The court observed that interest could not be awarded the Sioux on judgments obtained pursuant to the ndian Claims Commission Act, and that while Congress could correct this situation, the court could not. [18] The Sioux petitioned this Court for a writ of certiorari, but that petition was denied. 423 U.S. 10 The case returned to the ndian Claims Commission, where the value of the rights-of-way obtained by the Government through the 1877 Act was determined to be $3,4, and where it was decided that the Government had made no payments to the Sioux that could be considered as offsets. App. 3. *389 The Government then moved the Commission to enter a final award in favor of the Sioux in the amount of $17. million, see n. but the Commission deferred entry of final judgment in view of legislation then pending in Congress that dealt with the On March 13, 1978, Congress passed a statute providing for Court of Claims review of the merits of the ndian Claims Commission's judgment that the 1877 Act effected a taking of the Black Hills, without regard to the defenses of res judicata and collateral estoppel. The statute authorized the Court of Claims to take new evidence in the case, and to conduct its review of the merits de novo. Stat. 13, amending 20 (b) of the ndian Claims Commission Act. See 2 U.S. C. 70s (b) (1976 ed., Supp. ). Acting pursuant to that statute, a majority of the Court of Claims, sitting en banc, in an opinion by Chief Judge Friedman, affirmed the Commission's holding that the 1877 Act effected a taking of the Black Hills and of rights-of-way across the reservation.[19] n doing so, the court applied the test it had earlier articulated in Fort asking whether Congress had made "a good faith effort to give the ndians the full value of the land," 601 F. 2d, at 12, in order to decide whether the 1877 Act had effected a taking or whether it had been a noncompensable act of congressional guardianship over tribal property. The court characterized the Act as a taking, an exercise of Congress' power of eminent domain over ndian property. t distinguished broad statements seemingly leading to a contrary *390 result in Lone as inapplicable to a case involving a claim for just 601 F. 2d, at 70.[20] The court thus held that the Sioux were entitled to an award of interest, at the annual rate of %, on the principal sum of $17.1 million, dating from 1877.[21] We granted the Government's petition for a writ of certiorari, in order to review the important constitutional questions presented by this case, questions not only of longstanding concern to the Sioux, but also of significant economic import to the Government. Having twice denied petitions for certiorari in this litigation, see ; 423 U.S. 10 we are confronted with it for a third time as a result of the amendment, above noted, to the ndian Claims Commission Act of 19, 2 U.S. C. 70s (b) (1976 ed., Supp. ), which *391 directed the Court of Claims to review the merits of the Black Hills takings claim without regard to the defense of res judicata. The amendment, approved March 13, 1978, provides: "Notwithstanding any other provision of law, upon application by the claimants within thirty days from the date of the enactment of this sentence, the Court of Claims shall review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the ndian Claims Commission entered February 1, 1974, adjudging that the Act of February 28, 1877 (), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. n conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo." Before turning to the merits of the Court of Claims' conclusion that the 1877 Act effected a taking of the Black Hills, we must consider the question whether Congress, in enacting this 1978 amendment, "has inadvertently passed the limit which separates the legislative from the judicial power." United 7 A There are two objections that might be raised to the constitutionality of this amendment, each framed in terms of the doctrine of separation of powers. The first would be that Congress impermissibly has disturbed the finality of a judicial decree by rendering the Court of Claims' earlier judgments in this case mere advisory opinions. See Hayburn's Case, 410-4 (setting forth the views of three Circuit Courts, including among their complements Mr. Chief *392 Justice Jay, and Justices Cushing, Wilson, Blair, and redell, that the Act of Mar. 23, 1792, was unconstitutional because it subjected the decisions of the Circuit Courts concerning eligibility for pension benefits to review by the Secretary of War and the Congress). The objection would take the form that Congress, in directing the Court of Claims to reach the merits of the Black Hills claim, effectively reviewed and reversed that court's judgment that the claim was barred by res judicata, or its judgment that the claim was not cognizable under the Fifth Amendment. Such legislative review of a judicial decision would interfere with the independent functions of the Judiciary. The second objection would be that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left the court no adjudicatory function to perform. See United 13 Wall., at 6; 321 U.S. 4, Of course, in the context of this amendment, that objection would have to be framed in terms of Congress' removal of a single issue from the Court of Claims' purview, the question whether res judicata or collateral estoppel barred the Sioux' claim. For in passing the amendment, Congress left no doubt that the Court of Claims was free to decide the merits of the takings claim in accordance with the evidence it found and applicable rules of law. See n. 23, infra. These objections to the constitutionality of the amendment were not raised by the Government before the Court of At oral argument in this Court, counsel for the United States, upon explicit questioning, advanced the position that the amendment was not beyond the limits of legislative power.[22] The question whether the amendment *393 impermissibly interfered with judicial power was debated, however, in the House of Representatives, and that body concluded that the Government's waiver of a "technical legal defense" in order to permit the Court of Claims to reconsider the merits of the Black Hills claim was within Congress' power to enact.[23] *394 The question debated on the floor of the House is one the answer to which is not immediately apparent. t requires us to examine the proper role of Congress and the courts in *39 recognizing and determining claims against the United States, in light of more general principles concerning the legislative and judicial roles in our tripartite system of government. Our examination of the amendment's effect, and of this Court's precedents, leads us to conclude that neither of the two separation-of-powers objections described above is presented by this legislation. B Our starting point is Cherokee That decision concerned the Special Act of Congress, dated March 3, 1919, 40 Stat. 13, conferring jurisdiction upon the Court of Claims "to hear, consider, and determine the claim of the Cherokee against the United States for interest, in addition to all other interest heretofore allowed and paid, alleged to be owing from the United States to the Cherokee on the funds arising from the judgment of the Court of Claims of May eighteenth, nineteen hundred and five." n the judgment referred to by the Act, the Court of Claims had allowed % simple interest on four Cherokee claims, to accrue from the date of liability. Cherokee This Court had affirmed that judgment, including the interest award. United Thereafter, and following payment of the judgment, the Cherokee presented to Congress a new claim that they were entitled to compound interest on the lump sum of principal and interest that had accrued up to 189. t was this claim that prompted Congress, in 1919, to reconfer jurisdiction on the Court of Claims to consider the Cherokee's entitlement to that additional Ultimately, this Court held that the Cherokee were not entitled to the payment of compound interest on the original judgment awarded by the Court of -496. Before turning to the merits of the interest claim, however, the Court considered "the effect of the Act of 1919 in referring the issue in this case to the Court of " The Court's conclusion concerning that question bears close examination: "The judgment of this Court in the suit by the Cherokee against the United States, in April, 1906 (), already referred to, awarded a large amount of The question of interest was considered and decided, and it is quite clear that but for the special Act of 1919, above quoted, the question here mooted would have been foreclosed as res judicata. n passing the Act, Congress must have been well advised of this, and the only possible construction therefore to be put upon it is that Congress has therein expressed its desire, so far as the question of interest is concerned, to waive the effect of the judgment as res judicata, and to direct the Court of Claims to re-examine it and determine whether the interest therein allowed was all that should have been allowed, or whether it should be found to be as now claimed by the Cherokee The Solicitor General, representing the Government, properly concedes this to be the correct view. The power of Congress to waive such an adjudication of course is clear." *397 The holding in Cherokee that Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States is dispositive of the question considered here. Moreover, that holding is consistent with a substantial body of precedent affirming the broad constitutional power of Congress to define and "to pay the Debts of the United States." U. S. Const., Art. 8, cl. 1. That precedent speaks directly to the separation-of-powers objections discussed above. The scope of Congress' power to pay the 's debts seems first to have been construed by this Court in United 3 U.S. 427 There, the Court stated: "The term `debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a `debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded." Other decisions clearly establish that Congress may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim against the United States, as Congress did in this case and in Cherokee Although the Court in Cherokee did not expressly tie its conclusion that Congress had the power to waive the res judicata effect of a judgment in favor of the United States to Congress' constitutional *398 power to pay the 's debts, the Cherokee opinion did rely on the decision in See 270 U.S., n Nock, the Court of Claims was confronted with the precise question whether Congress invaded judicial power when it enacted a joint resolution, Stat. 608, directing that court to decide a damages claim against the United States "in accordance with the principles of equity and justice," even though the merits of the claim previously had been resolved in the Government's favor. The court rejected the Government's argument that the joint resolution was unconstitutional as an exercise of "judicial powers" because it had the effect of setting aside the court's prior judgment. Rather, the court concluded: "t is unquestionable that the Constitution has invested Congress with no judicial powers; it cannot be doubted that a legislative direction to a court to find a judgment in a certain way would be little less than a judgment rendered directly by Congress. But here Congress do not attempt to award judgment, nor to grant a new trial judicially; neither have they reversed a decree of this court; nor attempted in any way to interfere with the administration of justice. Congress are here to all intents and purposes the defendants, and as such they come into court through this resolution and say that they will not plead the former trial in bar, nor interpose the legal objection which defeated a recovery before." -48 The Nock court thus expressly rejected the applicability of separation-of-powers objections to a congressional decision to waive the res judicata effect of a judgment in the Government's favor.[24] *399 The principles set forth in Cherokee and Nock were substantially reaffirmed by this Court in There Congress had enacted special legislation conferring jurisdiction upon the Court of *400 Claims, "notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon" certain claims against the United States arising out of a construction contract. Special Act of Feb. 27, 1, The court was also directed to determine Pope's claims and render judgment upon them according to a particular formula for measuring the value of the work that he had performed. The Court of Claims construed the Special Act as deciding the questions of law presented by the case, and leaving it the role merely of computing the amount of the judgment for the claimant according to a mathematical formula. Based upon that reading of the Act, and this Court's decision in United the Court of Claims held that the Act unconstitutionally interfered with judicial -73. t distinguished Cherokee as a case in which Congress granted a claimant a new trial, without directing the courts how to decide the and n. and n. This Court reversed the Court of Claims' judgment. n *401 doing so, the Court differed with the Court of Claims' interpretation of the effect of the Special Act. First, the Court held that the Act did not disturb the earlier judgment denying Pope's claim for damages. "While inartistically drawn the Act's purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner's claims where no obligation existed before." Second, the Court held that Congress' recognition of Pope's claim was within its power to pay the 's debts, and that its use of the Court of Claims as an instrument for exercising that power did not impermissibly invade the judicial function: "We perceive no constitutional obstacle to Congress' imposing on the Government a new obligation where there had been none before, for work performed by petitioner which was beneficial to the Government and for which Congress thought he had not been adequately compensated. The power of Congress to provide for the payment of debts, conferred by 8 of Article of the Constitution, is not restricted to payment of those obligations which are legally binding on the Government. t extends to the creation of such obligations in recognition of claims which are merely moral or honorary. United 3 U.S. 427. Congress, by the creation of a legal, in recognition of a moral, obligation to pay petitioner's claims plainly did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. [Footnote citing Nock and other cases omitted.] Nor do we think it did so by directing that court to pass upon petitioner's claims in conformity to the particular rule of liability prescribed by the Special Act and to give judgment accordingly. See Cherokee" *402 n explaining its holding that the Special Act did not invade the judicial province of the Court of Claims by directing it to reach its judgment with reference to a specified formula, the Court stressed that Pope was required to pursue his claim in the usual manner, that the earlier factual findings made by the Court of Claims were not necessarily rendered conclusive by the Act, and that, even if Congress had stipulated to the facts, it was still a judicial function for the Court of Claims to render judgment on consent. To be sure, the Court in Pope specifically declined to consider "just what application the principles announced in the case could rightly be given to a case in which Congress sought, pendente lite, to set aside the judgment of the Court of Claims in favor of the Government and to require relitigation of the suit." The case before us might be viewed as presenting that question. We conclude, however, that the separation-of-powers question presented in this case has already been answered in Cherokee and that that answer is completely consistent with the principles articulated in The decision in United arose from the following facts: was the administrator of the estate of V. F. Wilson, the deceased owner of property that had been sold by agents of the Government during the War Between the States. sued the United States in the Court of Claims for the proceeds of that sale. His lawsuit was based on the Abandoned and Captured Property Act of March 3, 1863, which afforded such a cause of action to noncombatant property owners upon proof that they had "never given any aid or comfort to the present rebellion." Following the enactment of this legislation, President Lincoln had issued a proclamation granting "a full pardon" to certain persons engaged "in the existing rebellion" who desired to resume their allegiance to the Government, upon the condition that they take and maintain a prescribed *403 oath. This pardon was to have the effect of restoring those persons' property rights. See The Court of Claims held that Wilson's taking of the amnesty oath had cured his participation in "the rebellion," and that his administrator. was thus entitled to the proceeds of the sale. 4 Ct. Cl. 9 The Court of Claims' decision in 's case was consistent with this Court's later decision in a similar case, United 9 Wall. 31 holding that the Presidential pardon purged a participant "of whatever offence against the laws of the United States he had committed and relieved [him] from any penalty which he might have incurred." at 43. Following the Court's announcement of the judgment in Padelford, however, Congress enacted a proviso to the appropriations bill for the Court of The proviso had three effects: First, no Presidential pardon or amnesty was to be admissible in evidence on behalf of a claimant in the Court of Claims as the proof of loyalty required by the Abandoned and Captured Property Act. Second, the Supreme Court was to dismiss, for want of jurisdiction, any appeal from a judgment of the Court of Claims in favor of a claimant who had established his loyalty through a pardon. Third, the Court of Claims henceforth was to treat a claimant's receipt of a Presidential pardon, without protest, as conclusive evidence that he had given aid and comfort to the rebellion, and to dismiss any lawsuit on his behalf for want of jurisdiction. Act of July 12, 1870, ch. 21, Stat. 230, 23. The Government's appeal from the judgment in 's case was decided by this Court following the enactment of the appropriations proviso. This Court held the proviso unconstitutional notwithstanding Congress' recognized power "to make `such exceptions from the appellate jurisdiction' [of the Supreme Court] as should seem to it expedient." 13 Wall., at See U. S. Const., Art. 2, cl. 2. This *404 holding followed from the Court's interpretation of the proviso's effect: "[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. ts great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have." 13 Wall., at Thus construed, the proviso was unconstitutional in two respects: First, it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor. "The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? n the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it? ". Can [Congress] prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself." at 6-7. Second, the rule prescribed by the proviso "is also liable to just exception as impairing the effect of a pardon, and thus *40 infringing the constitutional power of the Executive." at 7. The Court held that it would not serve as an instrument toward the legislative end of changing the effect of a Presidential pardon. at 8. t was, of course, the former constitutional objection held applicable to the legislative proviso in that the Court was concerned about in Pope. But that objection is not applicable to the case before us for two reasons. First, of obvious importance to the holding was the fact that Congress was attempting to decide the controversy at issue in the Government's own favor. Thus, Congress' action could not be grounded upon its broad power to recognize and pay the 's debts. Second, and even more important, the proviso at issue in had attempted "to prescribe a rule for the decision of a cause in a particular way." 13 Wall., at 6. The amendment at issue in the present case, however, like the Special Act at issue in Cherokee waived the defense of res judicata so that a legal claim could be resolved on the merits. Congress made no effort in either instance to control the Court of Claims' ultimate decision of that claim. See n. 23, [2] *406 C When Congress enacted the amendment directing the Court of Claims to review the merits of the Black Hills claim, it neither brought into question the finality of that court's earlier judgments, nor interfered with that court's judicial function in deciding the merits of the claim. When the Sioux returned to the Court of Claims following passage of the *407 amendment, they were there in pursuit of judicial enforcement of a new legal right. Congress had not "reversed" the Court of Claims' holding that the claim was barred by res judicata, nor, for that matter, had it reviewed the decision rejecting the Sioux' claim on the merits. As Congress explicitly recognized, it only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments. Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits. That court was left completely free to reaffirm its judgment that the Black Hills claim was not cognizable under the Fifth Amendment, if upon its review of the facts and law, such a decision was warranted. n this respect, the amendment before us is a far cry from the legislatively enacted "consent judgment" called into question in Pope, yet found constitutional as a valid exercise of Congress' broad power to pay the 's debts. And, for the same reasons, this amendment clearly is distinguishable from the proviso to this Court's appellate jurisdiction held unconstitutional in n sum, as this Court implicitly held in Cherokee Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does not violate the doctrine of separation of powers. V A n reaching its conclusion that the 1877 Act effected a taking of the Black Hills for which just compensation was due the Sioux under the Fifth Amendment, the Court of Claims *408 relied upon the "good faith effort" test developed in its earlier decision in Three Tribes of Fort The Fort test had been designed to reconcile two lines of cases decided by this Court that seemingly were in conflict. The first line, exemplified by Lone recognizes "that Congress possesse[s] a paramount power over the property of the ndians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the ndians." at 6. The second line, exemplified by the more recent decision in Shoshone concedes Congress' paramount power over ndian property, but holds, nonetheless, that "[t]he power does not extend so far as to enable the Government `to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just '" (quoting United 29 U.S. 103, (193)). n Shoshone Tribe, Mr. Justice Cardozo, in speaking for the Court, expressed the distinction between the conflicting principles in a characteristically pithy phrase: "Spoliation is not management." The Fort test distinguishes between cases in which one or the other principle is applicable: "t is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the ndians, exercising its plenary powers over the ndians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the ndians' property within the meaning of the Fifth Amendment to the Constitution. n any given situation in which Congress has acted with regard to ndian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time. *409 "Some guideline must be established so that a court can identify in which capacity Congress is acting. The following guideline would best give recognition to the basic distinction between the two types of congressional action: Where Congress makes a good faith effort to give the ndians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee." Applying the Fort test to the facts of this case, the Court of Claims concluded that, in passing the 1877 Act, Congress had not made a good-faith effort to give the Sioux the full value of the Black Hills. The principal issue presented by this case is whether the legal standard applied by the Court of Claims was erroneous.[26] B The Government contends that the Court of Claims erred insofar as its holding that the 1877 Act effected a taking of the Black Hills was based on Congress' failure to indicate affirmatively that the consideration given the Sioux was of *410 equivalent value to the property rights ceded to the Government. t argues that "the true rule is that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 2. The Government derives support for this rule principally from this Court's decision in Lone n Lone Wolf, representatives of the Kiowa, Comanche, and Apache Tribes brought an equitable action against the Secretary of the nterior and other governmental officials to enjoin them from enforcing the terms of an Act of Congress that called for the sale of lands held by the ndians pursuant to the Medicine Lodge Treaty of 1 Stat. 81. That treaty, like the Fort Laramie Treaty of 1868, included a provision that any future cession of reservation lands would be without validity or force "unless executed and signed by at least three fourths of all the adult male ndians occupying the same." at 8. The legislation at issue, Act of June 6, 1900, was based on an agreement with the ndians that had not been signed by the requisite number of adult males residing on the reservation. This Court's principal holding in Lone Wolf was that "the legislative power might pass laws in conflict with treaties made with the ndians." 187 U.S., at 66. The Court stated: "The power exists to abrogate the provisions of an ndian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the ndians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of ndians it was never doubted that the power to abrogate existed in Congress, *4 and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the ndians." [27] The Court, therefore, was not required to consider the contentions of the ndians that the agreement ceding their lands had been obtained by fraud, and had not been signed by the requisite number of adult males. "[A]ll these matters, in any event, were solely within the domain of the legislative authority and its action is conclusive upon the courts." at 68. n the penultimate paragraph of the opinion, however, the Court in Lone Wolf went on to make some observations seemingly directed to the question whether the Act at issue might constitute a taking of ndian property without just The Court there stated: "The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the ndians or reserved for their benefit. ndeed, the controversy which this case presents is concluded by the decision in Cherokee decided at this term, where it was held that full administrative power was possessed by Congress over ndian *412 tribal property. n effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of ndian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the ndians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. n any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. f injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional." The Government relies on the italicized sentence in the quotation above to support its view "that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 2. Several adjoining passages in the paragraph, however, lead us to doubt whether the Lone Wolf Court meant to state a general rule applicable to cases such as the one before us. First, Lone Wolf presented a situation in which Congress "purported to give an adequate consideration" for the treaty lands taken from the ndians. n fact, the Act at issue set aside for the ndians a sum certain of $2 million for surplus reservation lands surrendered to the United States. ; see 187 U.S., at n contrast, the background of the 1877 Act "reveals a situation where Congress did not `purport' to provide `adequate consideration,' nor was there * any meaningful negotiation or arm's-length bargaining, nor did Congress consider it was paying a fair price." 220 Ct. Cl., at 47, 601 F. 2d, at 76 (concurring opinion). Second, given the provisions of the Act at issue in Lone Wolf, the Court reasonably was able to conclude that "the action of Congress now complained of was but a mere change in the form of investment of ndian tribal property." Under the Act of June 6, 1900, each head of a family was to be allotted a tract of land within the reservation of not less than 320 acres, an additional 480,000 acres of grazing land were set aside for the use of the tribes in common, and $2 million was paid to the ndians for the remaining surplus. -678. n contrast, the historical background to the opening of the Black Hills for settlement, and the terms of the 1877 Act itself, see Part would not lead one to conclude that the Act effected "a mere change in the form of investment of ndian tribal property." Third, it seems significant that the views of the Court in Lone Wolf were based, in part, on a holding that "Congress possessed full power in the matter." Earlier in the opinion the Court stated: "Plenary authority over the tribal relations of the ndians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government." 187 U.S., at 6. Thus, it seems that the Court's conclusive presumption of congressional good faith was based in large measure on the idea that relations between this and the ndian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in takings cases, and was expressly laid to rest in Delaware Tribal Business[28] *4 Fourth, and following up on the political question holding, the Lone Wolf opinion suggests that where the exercise of congressional power results in injury to ndian rights, "relief must be sought by an appeal to that body for redress and not to the courts." Unlike Lone Wolf, this case is one in which the Sioux have sought redress from Congress, and the Legislative Branch has responded by referring the matter to the courts for resolution. See Parts and Where Congress waives the Government's sovereign immunity, and expressly directs the courts to resolve a taking claim on the merits, there would appear to be far less reason to apply Lone Wolf's principles of deference. See United The foregoing considerations support our conclusion that the passage from Lone Wolf here relied upon by the Government has limited relevance to this More significantly, Lone Wolf's presumption of congressional good faith has little to commend it as an enduring principle for deciding questions *41 of the kind presented here. n every case where a taking of treaty-protected property is alleged,[29] a reviewing court must recognize that tribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that "this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in a guardianship and to pertinent constitutional restrictions." United 29 U. S., at 109-. Accord: Menominee ; FPC v. Tuscarora ndian ; United States v. Klamath ndians, ; United -1 ; Shoshone As the Court of Claims recognized in its decision below, the question whether a particular measure was appropriate for protecting and advancing the tribe's interests, and therefore not subject to the constitutional command of the Just Compensation Clause, is factual in nature. The answer must be based on a consideration of all the evidence presented. We do not mean to imply that a reviewing court is to second-guess, from the perspective of hindsight, a legislative judgment that a particular measure would serve the best interests of the tribe. We do mean to require courts, in considering whether a particular congressional action was taken in pursuance of Congress' power to manage and control tribal lands *4 for the ndians' welfare, to engage in a thoroughgoing and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry. C We turn to the question whether the Court of Claims' inquiry in this case was guided by an appropriate legal standard. We conclude that it was. n fact, we approve that court's formulation of the inquiry as setting a standard that ought to be emulated by courts faced with resolving future cases presenting the question at issue here: "n determining whether Congress has made a good faith effort to give the ndians the full value of their lands when the government acquired [them], we therefore look to the objective facts as revealed by Acts of Congress, congressional committee reports, statements submitted to Congress by government officials, reports of special commissions appointed by Congress to treat with the ndians, and similar evidence relating to the acquisition. "The `good faith effort' and `transmutation of property' concepts referred to in Fort are opposite sides of the same coin. They reflect the traditional rule that a trustee may change the form of trust assets as long as he fairly (or in good faith) attempts to provide his ward with property of equivalent value. f he does that, he cannot be faulted if hindsight should demonstrate a lack of precise equivalence. On the other hand, if a trustee (or the government in its dealings with the ndians) does not attempt to give the ward the fair equivalent of what he acquires from him, the trustee to that extent has taken rather than transmuted the property of the ward. n other words, an essential element of the inquiry under the Fort guideline is determining the adequacy of the consideration the government gave for the ndian lands it acquired. That inquiry *417 cannot be avoided by the government's simple assertion that it acted in good faith in its dealings with the ndians." 220 Ct. Cl., at 41, 601 F. 2d, at 12.[30] D We next examine the factual findings made by the Court of Claims, which led it to the conclusion that the 1877 Act effected a taking. First, the Court found that "[t]he only item of `consideration' that possibly could be viewed as showing an attempt by Congress to give the Sioux the `full value' of the land the government took from them was the requirement to furnish them with rations until they became self-sufficient." 220 Ct. Cl., at 48, 601 F. 2d, at This finding is fully supported by the record, and the Government does not seriously contend otherwise.[31] *418 Second, the court found, after engaging in an exhaustive review of the historical record, that neither the Manypenny Commission, nor the congressional Committees that approved the 1877 Act, nor the individual legislators who spoke on its behalf on the floor of Congress, ever indicated a belief that the Government's obligation to provide the Sioux with rations constituted a fair equivalent for the value of the Black Hills and the additional property rights the ndians were forced to *419 surrender. See at 48-2, 601 F.2d, at -18. This finding is unchallenged by the Government. A third finding lending some weight to the Court's legal conclusion was that the conditions placed by the Government on the Sioux' entitlement to rations, see n. "further show that the government's undertaking to furnish rations to the ndians until they could support themselves did not reflect a congressional decision that the value of the rations was the equivalent of the land the ndians were giving up, but instead was an attempt to coerce the Sioux into capitulating to congressional demands." 220 Ct. Cl., at 1, 601 F. 2d, at 18. We might add only that this finding is fully consistent with similar observations made by this Court nearly a century ago in an analogous n Choctaw 3 the Court held, over objections by the Government, that an earlier award made by the Senate on an ndian tribe's treaty claim "was fair, just, and equitable." The treaty at issue had called for the removal of the Choctaw from treaty-protected lands in exchange for payments for the tribe's subsistence for one year, payments for cattle and improvements on the new reservation, an annuity of $20,000 for 20 years commencing upon removal, and the provision of educational and agricultural services. Some years thereafter the Senate had awarded the ndians a substantial recovery based on the latter treaty's failure to compensate the Choctaw for the lands they had ceded. Congress later enacted a jurisdictional statute which permitted the United States to contest the fairness of the Senate's award as a settlement of the ndian's treaty claim. n rejecting the Government's arguments, and accepting the Senate's award as "furnish[ing] the nearest approximation to the justice and right of the case," at 3, this Court observed: "t is notorious as a historical fact, as it abundantly appears from the record in this case, that great pressure *420 had to be brought to bear upon the ndians to effect their removal, and the whole treaty was evidently and purposely executed, not so much to secure to the ndians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is, that no money consideration is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside in the Choctaw and computed to amount to over ten millions of acres." As for the payments that had been made to the ndians in order to induce them to remove themselves from their treaty lands, the Court, in words we find applicable to the 1877 Act, concluded: "t is nowhere expressed in the treaty that these payments are to be made as the price of the lands ceded; and they are all only such expenditures as the government of the United States could well afford to incur for the mere purpose of executing its policy in reference to the removal of the ndians to their new homes. As a consideration for the value of the lands ceded by the treaty, they must be regarded as a meagre pittance." These conclusions, in light of the historical background to the opening of the Black Hills for settlement, see Part seem fully applicable to Congress' decision to remove the Sioux from that valuable tract of land, and to extinguish their off-reservation hunting rights. Finally, the Court of Claims rejected the Government's contention that the fact that it subsequently had spent at least $43 million on rations for the Sioux (over the course of three-quarters of a century) established that the 1877 Act was an act of guardianship taken in the Sioux' best The court concluded: "The critical inquiry is what Congress *421 did—and how it viewed the obligation it was assuming—at the time it acquired the land, and not how much it ultimately cost the United States to fulfill the obligation." 220 Ct. Cl., at 2, 601 F. 2d, at 18. t found no basis for believing that Congress, in 1877, anticipated that it would take the Sioux such a lengthy period of time to become self-sufficient, or that the fulfillment of the Government's obligation to feed the Sioux would entail the large expenditures ultimately made on their behalf. We find no basis on which to question the legal standard applied by the Court of Claims, or the findings it reached, concerning Congress' decision to provide the Sioux with rations. E The aforementioned findings fully support the Court of Claims' conclusion that the 1877 Act appropriated the Black Hills "in circumstances which involved an implied undertaking by [the United States] to make just compensation to the tribe."[32]United 29 U. S., at 1. *422 We make only two additional observations about this First, dating at least from the decision in Cherokee v. Southern Kansas R. Co., 13 U.S. 641, 67 this Court has recognized that ndian lands, to which a tribe holds recognized title, "are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner." n the same decision the Court emphasized that the owner of such lands "is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed." at 69. The Court of Claims gave effect to this principle when it held that the Government's uncertain and indefinite obligation to provide the Sioux with rations until they became self-sufficient did not constitute adequate consideration for the Black Hills. Second, it seems readily apparent to us that the obligation to provide rations to the Sioux was undertaken in order to ensure them a means of surviving their transition from the nomadic life of the hunt to the agrarian lifestyle Congress had chosen for them. Those who have studied the Government's reservation policy during this period of our 's history agree. See n. t is important to recognize *423 that the 1877 Act, in addition to removing the Black Hills from the Great Sioux Reservation, also ceded the Sioux' hunting rights in a vast tract of land extending beyond the boundaries of that reservation. See n. Under such circumstances, it is reasonable to conclude that Congress' undertaking of an obligation to provide rations for the Sioux was a quid pro quo for depriving them of their chosen way of life, and was not intended to compensate them for the taking of the Black Hills.[33] V n sum, we conclude that the legal analysis and factual findings of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect "a mere change in the form of investment of ndian tribal property." Lone *424 187 U. S., at 68. Rather, the 1877 Act effected a taking of tribal property, property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to the Sioux and that obligation, including an award of interest, must now, at last, be paid. The judgment of the Court of Claims is affirmed. t is so ordered. MR. JUSTCE WHTE, concurring in part and concurring in the judgment.

per_curiam

per_curiam

Newport v. Iacobucci

https://www.courtlistener.com/opinion/111776/newport-v-iacobucci/

https://www.courtlistener.com/api/rest/v3/clusters/111776/

1986-009

In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell *93 liquor for consumption on the premises.[1] A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981) (per curiam), as being within the State's broad power under the Twenty-first Amendment[2] to regulate the sale of liquor within its boundaries. Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U.S. C. § 1983 against its enforcement.[3] The District Court ruled that the ordinance was constitutional, stating that it "is squarely within the doctrine *94 of Bellanca . . . and must be upheld on that basis." App. to Pet. for Cert. 50a. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. 785 F.2d 1354 (1986). It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth's Constitution,[4] Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky. Rev. Stat. §§ 242.010-242.990 (1981 and Supp. 1986). Noting this Court's statement in Bellanca that "[t]he State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs," 452 U.S., at 717, the Court of Appeals' majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca "doctrine" or "rationale" because the city "cannot exercise in part a power it does not hold in full." 785 F.2d, at 1358. The court remanded the case for a determination, among other things, of the city's authority to enact the ordinance under its police power. The dissenting judge argued that the majority read Bellanca too narrowly, and he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry. We agree with the dissent's conclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of *95 the Twenty-first Amendment is certainly not without limit,[5] but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States. "While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals." California v. LaRue, 409 U.S. 109, 114 (1972). This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. "In LaRue . . . we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program." Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975). In Bellanca, the Court upheld a state statute imposing just such a ban. The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the "doctrine" or "rationale" of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot *96 regulate nude dancing in bars. In holding that a State "has broad power . . . to regulate the times, places, and circumstances under which liquor may be sold," Bellanca, 452 U. S., at 715, this Court has never attached any constitutional significance to a State's division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit.[6] There is certainly no constitutional requirement that the same governmental unit must grant liquor licenses, revoke licenses, and regulate the circumstances under which liquor may be sold. Indeed, while Kentucky provides that the question of local prohibition is to be decided by popular election, the parties are in agreement that the city is vested with the power to revoke a liquor license upon a finding of a violation of state law, a state liquor regulation, or a city ordinance. See Brief in Opposition 7. Yet, the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine the manner of regulation. Thus, if respondents were to prevail in their argument that only voters can ban nudity because only voters have the authority to ban the sale of alcohol, it is possible that nude dancing in bars would be immune from any regulation. The Newport City Commission, in the preamble to the ordinance, determined that nude dancing in establishments serving liquor was "injurious to the citizens" of the city. It found the ordinance necessary to a range of purposes, including "prevent[ing] blight and the deterioration of the City's neighborhoods" *97 and "decreas[ing] the incidence of crime, disorderly conduct and juvenile delinquency." See 785 F.2d, at 1360. "Given the added presumption in favor of the validity of the . . . regulation in this area that the Twenty-first Amendment requires," California v. LaRue, 409 U. S., at 118-119, it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude. The fact that the Commonwealth of Kentucky has delegated one portion of its power under the Twenty-first Amendment to the electorate — the power to decide if liquor may be served in local establishments — does not differentiate this case from Bellanca. The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA would grant the petition for a writ of certiorari and set the case for oral argument. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g., Acosta v. Louisiana Dept. of Health and Human Resources, 478 U.S. 251 (1986) (MARSHALL, J., dissenting).

In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell *93 liquor for consumption on the premises.[1] A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor as being within the State's broad power under the Twenty-first Amendment[2] to regulate the sale of liquor within its boundaries. Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U.S. C. 1983 against its enforcement.[3] The District Court ruled that the ordinance was constitutional, stating that it "is squarely within the doctrine *94 of Bellanca and must be upheld on that basis." App. to Pet. for Cert. 50a. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth's Constitution,[4] Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky. Rev. Stat. 242.010-242.990 Noting this Court's statement in Bellanca that "[t]he State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs," the Court of Appeals' majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca "doctrine" or "rationale" because the city "cannot exercise in part a power it does not hold in full." The court remanded the case for a determination, among other things, of the city's authority to enact the ordinance under its police power. The dissenting judge argued that the majority read Bellanca too narrowly, and he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry. We agree with the dissent's conclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of *95 the Twenty-first Amendment is certainly not without limit,[5] but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States. "While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals." This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. "In we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program." In Bellanca, the Court upheld a state statute imposing just such a ban. The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the "doctrine" or "rationale" of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot *96 regulate nude dancing in bars. In holding that a State "has broad power to regulate the times, places, and circumstances under which liquor may be sold," Bellanca, this Court has never attached any constitutional significance to a State's division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit.[6] There is certainly no constitutional requirement that the same governmental unit must grant liquor licenses, revoke licenses, and regulate the circumstances under which liquor may be sold. Indeed, while Kentucky provides that the question of local prohibition is to be decided by popular election, the parties are in agreement that the city is vested with the power to revoke a liquor license upon a finding of a violation of state law, a state liquor regulation, or a city ordinance. See Brief in Opposition 7. Yet, the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine the manner of regulation. Thus, if respondents were to prevail in their argument that only voters can ban nudity because only voters have the authority to ban the sale of alcohol, it is possible that nude dancing in bars would be immune from any regulation. The Newport City Commission, in the preamble to the ordinance, determined that nude dancing in establishments serving liquor was "injurious to the citizens" of the city. It found the ordinance necessary to a range of purposes, including "prevent[ing] blight and the deterioration of the City's neighborhoods" *97 and "decreas[ing] the incidence of crime, disorderly conduct and juvenile delinquency." See "Given the added presumption in favor of the validity of the regulation in this area that the Twenty-first Amendment requires," -119, it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude. The fact that the Commonwealth of Kentucky has delegated one portion of its power under the Twenty-first Amendment to the electorate — the power to decide if liquor may be served in local establishments — does not differentiate this case from Bellanca. The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA would grant the petition for a writ of certiorari and set the case for oral argument. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g.,

Justice Blackmun

majority

Department of Treasury v. Fabe

https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/

https://www.courtlistener.com/api/rest/v3/clusters/112880/

1992-092

The federal priority statute, 31 U.S. C. § 3713, accords first priority to the United States with respect to a bankrupt debtor's obligations. An Ohio statute confers only fifth priority upon claims of the United States in proceedings to liquidate an insolvent insurance company. Ohio Rev. Code Ann. § 3903.42 (1989). The federal priority statute preempts the inconsistent Ohio law unless the latter is exempt from pre-emption under the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S. C. § 1011 et seq. In order to resolve this case, we must decide whether a state statute establishing the priority of creditors' claims in a proceeding to liquidate an insolvent insurance company is a law enacted "for the purpose of regulating the business of insurance," within the meaning of § 2(b) of the McCarran-Ferguson Act, 15 U.S. C. § 1012(b). We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders. Accordingly, Ohio may effectively afford priority, over claims of the United States, to the insurance claims of policyholders and to the costs and expenses of administering the liquidation. *494 But when Ohio attempts to rank other categories of claims above those pressed by the United States, it is not free from federal pre-emption under the McCarran-Ferguson Act. I The Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from inception to dissolution. The statute proclaims, as its purpose, "the protection of the interests of insureds, claimants, creditors, and the public generally." § 3903.02(D). Chapter 3903 broadly empowers the State's Superintendent of Insurance to place a financially impaired insurance company under his supervision, or into rehabilitation, or into liquidation. The last is authorized when the superintendent finds that the insurer is insolvent, that placement in supervision or rehabilitation would be futile, and that "further transaction of business would be hazardous, financially or otherwise, to [the insurer's] policyholders, its creditors, or the public." § 3903.17(C). As liquidator, the superintendent is entitled to take title to all assets, § 3903.18(A); to collect and invest moneys due the insurer, § 3903.21(A)(6); to continue to prosecute and commence in the name of the insurer any and all suits and other legal proceedings, § 3903.21(A)(12); to collect reinsurance and unearned premiums due the insurer, §§ 3903.32 and 3903.33; to evaluate all claims against the estate, § 3903.43; and to make payments to claimants to the extent possible, § 3903.44. It seems fair to say that the effect of all this is to empower the liquidator to continue to operate the insurance company in all ways but one—the issuance of new policies. Pursuant to this statutory framework, the Court of Common Pleas for Franklin County, Ohio, on April 30, 1986, declared American Druggists' Insurance Company insolvent. The court directed that the company be liquidated, and it appointed respondent, Ohio's Superintendent of Insurance, to serve as liquidator. The United States, as obligee *495 on various immigration, appearance, performance, and payment bonds issued by the company as surety, filed claims in excess of $10.7 million in the state liquidation proceedings. The United States asserted that its claims were entitled to first priority under the federal statute, 31 U.S. C. § 3713(a)(1)(A)(iii), which provides: "A claim of the United States Government shall be paid first when . . . a person indebted to the Government is insolvent and . . . an act of bankruptcy is committed."[1] Respondent Superintendent brought a declaratory judgment action in the United States District Court for the Southern District of Ohio seeking to establish that the federal priority statute does not pre-empt the Ohio law designating the priority of creditors' claims in insuranceliquidation proceedings. Under the Ohio statute, as noted above, claims of federal, state, and local governments are entitled only to fifth priority, ranking behind (1) administrative expenses, (2) specified wage claims, (3) policyholders' claims, and (4) claims of general creditors. § 3903.42.[2]*496 Respondent argued that the Ohio priority scheme, rather than the federal priority statute, governs the priority of claims of the United States because it falls within the antipre-emption *497 provisions of the McCarran-Ferguson Act, 15 U.S. C. § 1012.[3] The District Court granted summary judgment for the United States. Relying upon the tripartite standard for divining what constitutes the "business of insurance," as articulated in Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982), the court considered three factors: "`first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance *498 industry.'" App. to Pet. for Cert. 36a (quoting Pireno, 458 U. S., at 129). Reasoning that the liquidation of an insolvent insurer possesses none of these attributes, the court concluded that the Ohio priority statute does not involve the "business of insurance." App. to Pet. for Cert. 45a. A divided Court of Appeals reversed. 939 F.2d 341 (CA6 1991). The court held that the Ohio priority scheme regulates the "business of insurance" because it protects the interests of the insured. Id., at 350-351. Applying Pireno, the court determined that the Ohio statute (1) transfers and spreads the risk of insurer insolvency; (2) involves an integral part of the policy relationship because it is designed to maintain the reliability of the insurance contract; and (3) focuses upon the protection of policyholders by diverting the scarce resources of the liquidating entity away from other creditors. 939 F.2d, at 351-352.[4] Relying upon the same test to reach a different result, one judge dissented. He reasoned that the liquidation of insolvent insurers is not a part of the "business of insurance" because it (1) has nothing to do with the transfer of risk between insurer and insured that is effected by means of the insurance contract and that is complete at the time the contract is entered; (2) does not address the relationship between insurer and the insured, but the relationship among those left at the demise of the insurer; and (3) is not confined to policyholders, but governs the rights of all creditors. Id., at 353-354 (opinion of Jones, J.). We granted certiorari, 504 U.S. 907 (1992), to resolve the conflict among the Courts of Appeals on the question whether a state statute governing the priority of claims *499 against an insolvent insurer is a "law enacted . . . for the purpose of regulating the business of insurance," within the meaning of § 2(b) of the McCarran-Ferguson Act.[5] II The McCarran-Ferguson Act was enacted in response to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). Prior to that decision, it had been assumed that "[i]ssuing a policy of insurance is not a transaction of commerce," Paul v. Virginia, 8 Wall. 168, 183 (1869), subject to federal regulation. Accordingly, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539 (1978). The emergence of an interconnected and interdependent national economy, however, prompted a more expansive jurisprudential image of interstate commerce. In the intervening years, for example, the Court held that interstate commerce encompasses the movement of lottery tickets from State to State, Lottery Case, 188 U.S. 321 (1903), the transport of five quarts of whiskey across state lines in a private automobile, United States v. Simpson, 252 U.S. 465 (1920), and the transmission of an electrical impulse over a wire between Alabama and Florida, Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878). It was not long before the Court was forced to come to terms with these decisions in the insurance context. Thus, in South-Eastern Underwriters, it held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust laws. This result, naturally, was widely perceived as a threat to state power to tax and regulate the *500 insurance industry. To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation. It enacted the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters. The first section of the McCarran-Ferguson Act makes its mission very clear: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U.S. C. § 1011. Shortly after passage of the Act, the Court observed: "Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance." Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429 (1946). Congress achieved this purpose in two ways. The first "was by removing obstructions which might be thought to flow from [Congress'] own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation." Id., at 429-430. The second "was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it `shall be subject to' the laws of the several states in these respects." Id., at 430. III "[T]he starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210 (1979). Section 2(b) of the McCarran-Ferguson Act provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business *501 of insurance . .. unless such Act specifically relates to the business of insurance." 15 U.S. C. § 1012(b). The parties agree that application of the federal priority statute would "invalidate, impair, or supersede" the Ohio priority scheme and that the federal priority statute does not "specifically relat[e] to the business of insurance." All that is left for us to determine, therefore, is whether the Ohio priority statute is a law enacted "for the purpose of regulating the business of insurance." This Court has had occasion to construe this phrase only once. On that occasion, it observed: "Statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the `business of insurance,'" within the meaning of the phrase. SEC v. National Securities, Inc., 393 U.S. 453, 460 (1969). The opinion emphasized that the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders: "The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement—these were the core of the `business of insurance.' Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus was—it was on the relationship between the insurance company and the policyholder." Ibid. In that case, two Arizona insurance companies merged and received approval from the Arizona Director of Insurance, as required by state law. The Securities and Exchange Commission sued to rescind the merger, alleging that the merger-solicitation papers contained material misstatements, in violation of federal law. This Court held that, insofar as the Arizona law was an attempt to protect the interests *502 of an insurance company's shareholders, it did not fall within the scope of the McCarran-Ferguson Act. Ibid. The Arizona statute, however, also required the Director, before granting approval, to make sure that the proposed merger "would not `substantially reduce the security of and service to be rendered to policyholders.'" Id., at 462. The Court observed that this section of the statute "clearly relates to the `business of insurance.'" Ibid. But because the "paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders," id., at 463, the Arizona statute did not preclude application of the federal securities laws. In the present case, on the other hand, there is a direct conflict between the federal priority statute and Ohio law. Under the terms of the McCarran-Ferguson Act, 15 U.S. C. § 1012(b), therefore, federal law must yield to the extent the Ohio statute furthers the interests of policyholders. Minimizing the analysis of National Securities, petitioners invoke Royal Drug and Pireno in support of their argument that the liquidation of an insolvent insurance company is not part of the "business of insurance" exempt from pre-emption under the McCarran-Ferguson Act. Those cases identified the three criteria, noted above, that are relevant in determining what activities constitute the "business of insurance." See Pireno, 458 U. S., at 129. Petitioners argue that the Ohio priority statute satisfies none of these criteria. According to petitioners, the Ohio statute merely determines the order in which creditors' claims will be paid, and has nothing to do with the transfer of risk from insured to insurer. Petitioners also contend that the Ohio statute is not an integral part of the policy relationship between insurer and insured and is not limited to entities within the insurance industry because it addresses only the relationship between policyholders and other creditors of the defunct corporation. To be sure, the Ohio statute does not directly regulate the "business of insurance" by prescribing the terms of the *503 insurance contract or by setting the rate charged by the insurance company. But we do not read Pireno to suggest that the business of insurance is confined entirely to the writing of insurance contracts, as opposed to their performance. Pireno and Royal Drug held only that "ancillary activities" that do not affect performance of the insurance contract or enforcement of contractual obligations do not enjoy the antitrust exemption for laws regulating the "business of insurance." Pireno, 458 U. S., at 134, n. 8. In Pireno, we held that use of a peer review committee to advise the insurer as to whether charges for chiropractic services were reasonable and necessary was not part of the business of insurance. The peer review practice at issue in that case had nothing to do with whether the insurance contract was performed; it dealt only with calculating what fell within the scope of the contract's coverage. Id., at 130. We found the peer review process to be "a matter of indifference to the policyholder, whose only concern is whether his claim is paid, not why it is paid" (emphases in original). Id., at 132. Similarly, in Royal Drug, we held that an insurer's agreements with participating pharmacies to provide benefits to policyholders was not part of the business of insurance. "The benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." 440 U.S., at 213-214 (footnote omitted). There can be no doubt that the actual performance of an insurance contract falls within the "business of insurance," as we understood that phrase in Pireno and Royal Drug. To hold otherwise would be mere formalism. The Court's statement in Pireno that the "transfer of risk from insured to insurer is effected by means of the contract between the parties . . . and . . . is complete at the time that the contract is entered," 458 U.S., at 130, presumes that the insurance *504 contract in fact will be enforced. Without performance of the terms of the insurance policy, there is no risk transfer at all. Moreover, performance of an insurance contract also satisfies the remaining prongs of the Pireno test: It is central to the policy relationship between insurer and insured and is confined entirely to entities within the insurance industry. The Ohio priority statute is designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders' claims despite the insurance company's intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio's law is one "enacted by any State for the purpose of regulating the business of insurance." 15 U.S. C. § 1012(b). Both Royal Drug and Pireno, moreover, involved the scope of the antitrust immunity located in the second clause of § 2(b). We deal here with the first clause, which is not so narrowly circumscribed. The language of § 2(b) is unambiguous: The first clause commits laws "enacted . . . for the purpose of regulating the business of insurance" to the States, while the second clause exempts only "the business of insurance" itself from the antitrust laws. To equate laws "enacted . . . for the purpose of regulating the business of insurance" with the "business of insurance" itself, as petitioners urge us to do, would be to read words out of the statute. This we refuse to do.[6] *505 The broad category of laws enacted "for the purpose of regulating the business of insurance" consists of laws that possess the "end, intention, or aim" of adjusting, managing, or controlling the business of insurance. Black's Law Dictionary 1236, 1286 (6th ed. 1990). This category necessarily encompasses more than just the "business of insurance." For the reasons expressed above, we believe that the actual performance of an insurance contract is an essential part of the "business of insurance." Because the Ohio statute is "aimed at protecting or regulating" the performance of an insurance contract, National Securities, 393 U. S., at 460, it follows that it is a law "enacted for the purpose of regulating the business of insurance," within the meaning of the first clause of § 2(b). Our plain reading of the McCarran-Ferguson Act also comports with the statute's purpose. As was stated in Royal Drug, the first clause of § 2(b) was intended to further Congress' primary objective of granting the States broad regulatory authority over the business of insurance. The second clause accomplishes Congress' secondary goal, which was to carve out only a narrow exemption for "the business of insurance" from the federal antitrust laws. 440 U.S., at 218, n. 18. Cf. D. Howard, Uncle Sam versus the Insurance Commissioners: A Multi-Level Approach to Defining the "Business of Insurance" Under the McCarran-Ferguson Act, 25 Willamette L. Rev. 1 (1989) (advocating an interpretation of the two clauses that would reflect their dual purposes); Note, The Definition of "Business of Insurance" Under the McCarran-Ferguson Act After Royal Drug, 80 Colum. L. Rev. 1475 (1980) (same). Petitioners, however, also contend that the Ohio statute is not an insurance law but a bankruptcy law because it comes into play only when the insurance company has become insolvent and is in liquidation, at which point the insurance company no longer exists. We disagree. The primary purpose of a statute that distributes the insolvent insurer's assets to *506 policyholders in preference to other creditors is identical to the primary purpose of the insurance company itself: the payment of claims made against policies. And "mere matters of form need not detain us." National Securities, 393 U. S., at 460. The Ohio statute is enacted "for the purpose of regulating the business of insurance" to the extent that it serves to ensure that, if possible, policyholders ultimately will receive payment on their claims. That the policyholder has become a creditor and the insurer a debtor is not relevant. IV Finding little support in the plain language of the statute, petitioners resort to its legislative history. Petitioners rely principally upon a single statement in a House Report: "It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case." H. R. Rep. No. 143, 79th Cong., 1st Sess., 3 (1945). From this statement, petitioners argue that the McCarranFerguson Act was an attempt to "turn back the clock" to the time prior to South-Eastern Underwriters. At that time, petitioners maintain, the federal priority statute would have superseded any inconsistent state law. Even if we accept petitioners' premise, the state of the law prior to South-Eastern Underwriters is far from clear. Petitioners base their argument upon United States v. Knott, 298 U.S. 544 (1936), which involved the use and disposition of funds placed with the Florida treasurer as a condition of an insurer's conducting business in the State. According to petitioners, Knott stands for the proposition that the federal priority statute pre-empted inconsistent state laws even before South-Eastern Underwriters. But this proffered analogy to Knott unravels upon closer inspection. In that case, *507 the Court applied the federal priority statute only when the State had not specifically legislated the priority of claims. 298 U.S., at 549-550 ("But it is settled that an inchoate lien is not enough to defeat the [Federal Government's] priority . . .. Unless the law of Florida effected . .. either a transfer of title from the company, or a specific perfected lien in favor of the Florida creditors, the United States is entitled to priority"). Moreover, other cases issued at the same time reached a different result. See, e. g., Conway v. Imperial Life Ins. Co., 207 La. 285, 21 So. 2d 151 (1945) (Louisiana statute specifically providing that deposited securities are held by state treasurer in trust for benefit and protection of policyholders supersedes federal priority statute). More importantly, petitioners' interpretation of the statute is at odds with its plain language. The McCarran-Ferguson Act did not simply overrule South-Eastern Underwriters and restore the status quo. To the contrary, it transformed the legal landscape by overturning the normal rules of preemption. Ordinarily, a federal law supersedes any inconsistent state law. The first clause of § 2(b) reverses this by imposing what is, in effect, a clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of insurance" do not yield to conflicting federal statutes unless a federal statute specifically requires otherwise. That Congress understood the effect of its language becomes apparent when we examine other parts of the legislative history.[7] The second clause of § 2(b) also broke new ground: It *508 "embod[ied] a legislative rejection of the concept that the insurance industry is outside the scope of the antitrust laws—a concept that had prevailed before the South-Eastern Underwriters decision." Royal Drug, 440 U. S., at 220. Petitioners' argument appears to find its origin in the Court's statement in National Securities that "[t]he McCarran-Ferguson Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." 393 U.S., at 459. The Court was referring to the primary purpose underlying the Act, namely, to restore to the States broad authority to tax and regulate the insurance industry. Petitioners would extrapolate from this general statement an invitation to engage in a detailed point-by-point comparison between the regime created by McCarran-Ferguson and the one that existed before. But it is impossible to compare our present world to the one that existed at a time when the business of insurance was believed to be beyond the reach of Congress' power under the Commerce Clause. V We hold that the Ohio priority statute, to the extent that it regulates policyholders, is a law enacted for the purpose of regulating the business of insurance. To the extent that it is designed to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance. Of course, every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company. This argument, however, goes too far: "But in that sense, every business decision made by an insurance company has some impact on its reliability. . . and its status as a reliable insurer." Royal Drug, 440 U. S., at 216-217. Royal Drug rejected the notion that such *509 indirect effects are sufficient for a state law to avoid preemption under the McCarran-Ferguson Act. Id., at 217.[8] We also hold that the preference accorded by Ohio to the expenses of administering the insolvency proceeding is reasonably necessary to further the goal of protecting policyholders. Without payment of administrative costs, liquidation could not even commence. The preferences conferred upon employees and other general creditors, however, do not escape pre-emption because their connection to the ultimate aim of insurance is too tenuous. Cf. Langdeau v. United States, 363 S.W.2d 327 (Tex. Civ. App. 1962) (state statute according preference to employee wage claims is not a law enacted for the purpose of regulating the business of insurance). By this decision, we rule only upon the clash of priorities as pronounced by the respective provisions of the federal statute and the Ohio Code. The effect of this decision upon the Ohio Code's remaining priority provisions—including *510 any issue of severability—is a question of state law to be addressed upon remand. Cf. Stanton v. Stanton, 421 U.S. 7, 17-18 (1975) (invalidating state statute specifying greater age of majority for males than for females and remanding to state court to determine age of majority applicable to both groups under state law). The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.

The federal priority statute, 31 U.S. C. 3713, accords first priority to the United States with respect to a bankrupt debtor's obligations. An Ohio statute confers only fifth priority upon claims of the United States in proceedings to liquidate an insolvent insurance company. Ohio Rev. Code Ann. 3903.42 The federal priority statute preempts the inconsistent Ohio law unless the latter is exempt from pre-emption under the McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq. In order to resolve this case, we must decide whether a state statute establishing the priority of creditors' claims in a proceeding to liquidate an insolvent insurance company is a law enacted "for the purpose of regulating the business of insurance," within the meaning of 2(b) of the McCarran-Ferguson Act, 15 U.S. C. 1012(b). We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders. Accordingly, Ohio may effectively afford priority, over claims of the United States, to the insurance claims of policyholders and to the costs and expenses of administering the liquidation. *494 But when Ohio attempts to rank other categories of claims above those pressed by the United States, it is not free from federal pre-emption under the McCarran-Ferguson Act. I The Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from inception to dissolution. The statute proclaims, as its purpose, "the protection of the interests of insureds, claimants, creditors, and the public generally." 3903.02(D). Chapter 3903 broadly empowers the State's Superintendent of Insurance to place a financially impaired insurance company under his supervision, or into rehabilitation, or into liquidation. The last is authorized when the superintendent finds that the insurer is insolvent, that placement in supervision or rehabilitation would be futile, and that "further transaction of business would be hazardous, financially or otherwise, to [the insurer's] policyholders, its creditors, or the public." 3903.17(C). As liquidator, the superintendent is entitled to take title to all assets, 3903.18(A); to collect and invest moneys due the insurer, 3903.21(A)(6); to continue to prosecute and commence in the name of the insurer any and all suits and other legal proceedings, 3903.21(A)(12); to collect reinsurance and unearned premiums due the insurer, 3903.32 and 3903.33; to evaluate all claims against the estate, 3903.43; and to make payments to claimants to the extent possible, 3903.44. It seems fair to say that the effect of all this is to empower the liquidator to continue to operate the insurance company in all ways but one—the issuance of new policies. Pursuant to this statutory framework, the Court of Common Pleas for Franklin County, Ohio, on April 30, 1986, declared American gists' Insurance Company insolvent. The court directed that the company be liquidated, and it appointed respondent, Ohio's Superintendent of Insurance, to serve as liquidator. The United States, as obligee *495 on various immigration, appearance, performance, and payment bonds issued by the company as surety, filed claims in excess of $10.7 million in the state liquidation proceedings. The United States asserted that its claims were entitled to first priority under the federal statute, 31 U.S. C. 3713(a)(1)(A)(iii), which provides: "A claim of the United States Government shall be paid first when a person indebted to the Government is insolvent and an act of bankruptcy is committed."[1] Respondent Superintendent brought a declaratory judgment action in the United States District Court for the Southern District of Ohio seeking to establish that the federal priority statute does not pre-empt the Ohio law designating the priority of creditors' claims in insuranceliquidation proceedings. Under the Ohio statute, as noted above, claims of federal, state, and local governments are entitled only to fifth priority, ranking behind (1) administrative expenses, (2) specified wage claims, (3) policyholders' claims, and (4) claims of general creditors. 3903.42.[2]*496 Respondent argued that the Ohio priority scheme, rather than the federal priority statute, governs the priority of claims of the United States because it falls within the antipre-emption *497 provisions of the McCarran-Ferguson Act, 15 U.S. C. 1012.[3] The District Court granted summary judgment for the United States. Relying upon the tripartite standard for divining what constitutes the "business of insurance," as articulated in Union Labor Life Ins. the court considered three factors: "`first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance *498 industry.'" App. to Pet. for Cert. 36a (quoting ). Reasoning that the liquidation of an insolvent insurer possesses none of these attributes, the court concluded that the Ohio priority statute does not involve the "business of insurance." App. to Pet. for Cert. 45a. A divided Court of Appeals reversed. The court held that the Ohio priority scheme regulates the "business of insurance" because it protects the interests of the insured. Applying the court determined that the Ohio statute (1) transfers and spreads the risk of insurer insolvency; (2) involves an integral part of the policy relationship because it is designed to maintain the reliability of the insurance contract; and (3) focuses upon the protection of policyholders by diverting the scarce resources of the liquidating entity away from other creditors. -352.[4] Relying upon the same test to reach a different result, one judge dissented. He reasoned that the liquidation of insolvent insurers is not a part of the "business of insurance" because it (1) has nothing to do with the transfer of risk between insurer and insured that is effected by means of the insurance contract and that is complete at the time the contract is entered; (2) does not address the relationship between insurer and the insured, but the relationship among those left at the demise of the insurer; and (3) is not confined to policyholders, but governs the rights of all creditors. We granted certiorari, to resolve the conflict among the Courts of Appeals on the question whether a state statute governing the priority of claims *499 against an insolvent insurer is a "law enacted for the purpose of regulating the business of insurance," within the meaning of 2(b) of the McCarran-Ferguson Act.[5] II The McCarran-Ferguson Act was enacted in response to this Court's decision in United Prior to that decision, it had been assumed that "[i]ssuing a policy of insurance is not a transaction of commerce," subject to federal regulation. Accordingly, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. The emergence of an interconnected and interdependent national economy, however, prompted a more expansive jurisprudential image of interstate commerce. In the intervening years, for example, the Court held that interstate commerce encompasses the movement of lottery tickets from State to State, Lottery Case, the transport of five quarts of whiskey across state lines in a private automobile, United and the transmission of an electrical impulse over a wire between Alabama and Florida, Pensacola Telegraph It was not long before the Court was forced to come to terms with these decisions in the insurance context. Thus, in South-Eastern Underwriters, it held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust This result, naturally, was widely perceived as a threat to state power to tax and regulate the *500 insurance industry. To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation. It enacted the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters. The first section of the McCarran-Ferguson Act makes its mission very clear: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U.S. C. 1011. Shortly after passage of the Act, the Court observed: "Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance." Prudential Ins. Congress achieved this purpose in two ways. The first "was by removing obstructions which might be thought to flow from [Congress'] own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation." at -430. The second "was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it `shall be subject to' the laws of the several states in these respects." III "[T]he starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself." Group Life & Health Ins. Section 2(b) of the McCarran-Ferguson Act provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business *501 of insurance unless such Act specifically relates to the business of insurance." 15 U.S. C. 1012(b). The parties agree that application of the federal priority statute would "invalidate, impair, or supersede" the Ohio priority scheme and that the federal priority statute does not "specifically relat[e] to the business of insurance." All that is left for us to determine, therefore, is whether the Ohio priority statute is a law enacted "for the purpose of regulating the business of insurance." This Court has had occasion to construe this phrase only once. On that occasion, it observed: "Statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the `business of insurance,'" within the meaning of the phrase. The opinion emphasized that the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders: "The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcement—these were the core of the `business of insurance.' Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus was—it was on the relationship between the insurance company and the policyholder." In that case, two Arizona insurance companies merged and received approval from the Arizona Director of Insurance, as required by state law. The Securities and Exchange Commission sued to rescind the merger, alleging that the merger-solicitation papers contained material misstatements, in violation of federal law. This Court held that, insofar as the Arizona law was an attempt to protect the interests *502 of an insurance company's shareholders, it did not fall within the scope of the McCarran-Ferguson Act. The Arizona statute, however, also required the Director, before granting approval, to make sure that the proposed merger "would not `substantially reduce the security of and service to be rendered to policyholders.'" The Court observed that this section of the statute "clearly relates to the `business of insurance.'" But because the "paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders," the Arizona statute did not preclude application of the federal securities In the present case, on the other hand, there is a direct conflict between the federal priority statute and Ohio law. Under the terms of the McCarran-Ferguson Act, 15 U.S. C. 1012(b), therefore, federal law must yield to the extent the Ohio statute furthers the interests of policyholders. Minimizing the analysis of National Securities, petitioners invoke Royal and in support of their argument that the liquidation of an insolvent insurance company is not part of the "business of insurance" exempt from pre-emption under the McCarran-Ferguson Act. Those cases identified the three criteria, noted above, that are relevant in determining what activities constitute the "business of insurance." See Petitioners argue that the Ohio priority statute satisfies none of these criteria. According to petitioners, the Ohio statute merely determines the order in which creditors' claims will be paid, and has nothing to do with the transfer of risk from insured to insurer. Petitioners also contend that the Ohio statute is not an integral part of the policy relationship between insurer and insured and is not limited to entities within the insurance industry because it addresses only the relationship between policyholders and other creditors of the defunct corporation. To be sure, the Ohio statute does not directly regulate the "business of insurance" by prescribing the terms of the *503 insurance contract or by setting the rate charged by the insurance company. But we do not read to suggest that the business of insurance is confined entirely to the writing of insurance contracts, as opposed to their performance. and Royal held only that "ancillary activities" that do not affect performance of the insurance contract or enforcement of contractual obligations do not enjoy the antitrust exemption for laws regulating the "business of insurance." n. 8. In we held that use of a peer review committee to advise the insurer as to whether charges for chiropractic services were reasonable and necessary was not part of the business of insurance. The peer review practice at issue in that case had nothing to do with whether the insurance contract was performed; it dealt only with calculating what fell within the scope of the contract's coverage. We found the peer review process to be "a matter of indifference to the policyholder, whose only concern is whether his claim is paid, not why it is paid" (emphases in original). Similarly, in Royal we held that an insurer's agreements with participating pharmacies to provide benefits to policyholders was not part of the business of insurance. "The benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." -214 There can be no doubt that the actual performance of an insurance contract falls within the "business of insurance," as we understood that phrase in and Royal To hold otherwise would be mere formalism. The Court's statement in that the "transfer of risk from insured to insurer is effected by means of the contract between the parties and is complete at the time that the contract is entered," 458 U.S., presumes that the insurance *504 contract in fact will be enforced. Without performance of the terms of the insurance policy, there is no risk transfer at all. Moreover, performance of an insurance contract also satisfies the remaining prongs of the test: It is central to the policy relationship between insurer and insured and is confined entirely to entities within the insurance industry. The Ohio priority statute is designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders' claims despite the insurance company's intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio's law is one "enacted by any State for the purpose of regulating the business of insurance." 15 U.S. C. 1012(b). Both Royal and moreover, involved the scope of the antitrust immunity located in the second clause of 2(b). We deal here with the first clause, which is not so narrowly circumscribed. The language of 2(b) is unambiguous: The first clause commits laws "enacted for the purpose of regulating the business of insurance" to the States, while the second clause exempts only "the business of insurance" itself from the antitrust To equate laws "enacted for the purpose of regulating the business of insurance" with the "business of insurance" itself, as petitioners urge us to do, would be to read words out of the statute. This we refuse to do.[6] *505 The broad category of laws enacted "for the purpose of regulating the business of insurance" consists of laws that possess the "end, intention, or aim" of adjusting, managing, or controlling the business of insurance. Black's Law Dictionary 1236, 1286 (6th ed. 1990). This category necessarily encompasses more than just the "business of insurance." For the reasons expressed above, we believe that the actual performance of an insurance contract is an essential part of the "business of insurance." Because the Ohio statute is "aimed at protecting or regulating" the performance of an insurance contract, National Securities, 393 U. S., at it follows that it is a law "enacted for the purpose of regulating the business of insurance," within the meaning of the first clause of 2(b). Our plain reading of the McCarran-Ferguson Act also comports with the statute's purpose. As was stated in Royal the first clause of 2(b) was intended to further Congress' primary objective of granting the States broad regulatory authority over the business of insurance. The second clause accomplishes Congress' secondary goal, which was to carve out only a narrow exemption for "the business of insurance" from the federal antitrust n. 18. Cf. D. Howard, Uncle Sam versus the Insurance Commissioners: A Multi-Level Approach to Defining the "Business of Insurance" Under the McCarran-Ferguson Act, ; Note, The Definition of "Business of Insurance" Under the McCarran-Ferguson Act After Royal Petitioners, however, also contend that the Ohio statute is not an insurance law but a bankruptcy law because it comes into play only when the insurance company has become insolvent and is in liquidation, at which point the insurance company no longer exists. We disagree. The primary purpose of a statute that distributes the insolvent insurer's assets to *506 policyholders in preference to other creditors is identical to the primary purpose of the insurance company itself: the payment of claims made against policies. And "mere matters of form need not detain us." National Securities, 393 U. S., at The Ohio statute is enacted "for the purpose of regulating the business of insurance" to the extent that it serves to ensure that, if possible, policyholders ultimately will receive payment on their claims. That the policyholder has become a creditor and the insurer a debtor is not relevant. IV Finding little support in the plain language of the statute, petitioners resort to its legislative history. Petitioners rely principally upon a single statement in a House Report: "It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case." H. R. Rep. No. 143, 79th Cong., 1st Sess., 3 From this statement, petitioners argue that the McCarranFerguson Act was an attempt to "turn back the clock" to the time prior to South-Eastern Underwriters. At that time, petitioners maintain, the federal priority statute would have superseded any inconsistent state law. Even if we accept petitioners' premise, the state of the law prior to South-Eastern Underwriters is far from clear. Petitioners base their argument upon United which involved the use and disposition of funds placed with the Florida treasurer as a condition of an insurer's conducting business in the State. According to petitioners, Knott stands for the proposition that the federal priority statute pre-empted inconsistent state laws even before South-Eastern Underwriters. But this proffered analogy to Knott unravels upon closer inspection. In that case, *507 the Court applied the federal priority statute only when the State had not specifically legislated the priority of claims. -550 ("But it is settled that an inchoate lien is not enough to defeat the [Federal Government's] priority Unless the law of Florida effected either a transfer of title from the company, or a specific perfected lien in favor of the Florida creditors, the United States is entitled to priority"). Moreover, other cases issued at the same time reached a different result. See, e. g., More importantly, petitioners' interpretation of the statute is at odds with its plain language. The McCarran-Ferguson Act did not simply overrule South-Eastern Underwriters and restore the status quo. To the contrary, it transformed the legal landscape by overturning the normal rules of preemption. Ordinarily, a federal law supersedes any inconsistent state law. The first clause of 2(b) reverses this by imposing what is, in effect, a clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of insurance" do not yield to conflicting federal statutes unless a federal statute specifically requires otherwise. That Congress understood the effect of its language becomes apparent when we examine other parts of the legislative history.[7] The second clause of 2(b) also broke new ground: It *508 "embod[ied] a legislative rejection of the concept that the insurance industry is outside the scope of the antitrust laws—a concept that had prevailed before the South-Eastern Underwriters decision." Royal Petitioners' argument appears to find its origin in the Court's statement in National Securities that "[t]he McCarran-Ferguson Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." The Court was referring to the primary purpose underlying the Act, namely, to restore to the States broad authority to tax and regulate the insurance industry. Petitioners would extrapolate from this general statement an invitation to engage in a detailed point-by-point comparison between the regime created by McCarran-Ferguson and the one that existed before. But it is impossible to compare our present world to the one that existed at a time when the business of insurance was believed to be beyond the reach of Congress' power under the Commerce Clause. V We hold that the Ohio priority statute, to the extent that it regulates policyholders, is a law enacted for the purpose of regulating the business of insurance. To the extent that it is designed to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance. Of course, every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company. This argument, however, goes too far: "But in that sense, every business decision made by an insurance company has some impact on its reliability. and its status as a reliable insurer." Royal -217. Royal rejected the notion that such *509 indirect effects are sufficient for a state law to avoid preemption under the McCarran-Ferguson Act.[8] We also hold that the preference accorded by Ohio to the expenses of administering the insolvency proceeding is reasonably necessary to further the goal of protecting policyholders. Without payment of administrative costs, liquidation could not even commence. The preferences conferred upon employees and other general creditors, however, do not escape pre-emption because their connection to the ultimate aim of insurance is too tenuous. Cf. By this decision, we rule only upon the clash of priorities as pronounced by the respective provisions of the federal statute and the Ohio Code. The effect of this decision upon the Ohio Code's remaining priority provisions—including *510 any issue of severability—is a question of state law to be addressed upon remand. Cf. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.

Justice Stevens

second_dissenting

Pennsylvania v. Bruder

https://www.courtlistener.com/opinion/112152/pennsylvania-v-bruder/

https://www.courtlistener.com/api/rest/v3/clusters/112152/

1988-002

The Court explains why it reverses the decision of the Superior Court of Pennsylvania in this drunken driving case, but it does not explain why it granted certiorari. In Berkemer v. McCarty, 468 U.S. 420, 440-442 (1984), the Court concluded that Miranda warnings are not required during a traffic stop unless the citizen is taken into custody; that there is no bright-line rule for determining when detentions short of formal arrest constitute custody; and that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation," 468 U.S., at 442. The rule applied in Pennsylvania is strikingly similar to this Court's statement in Berkemer. As the Pennsylvania Superior Court explained in this case: "In Pennsylvania, `custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest. . . . Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.' Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980) (quoting Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977). . . . "In Commonwealth v. Meyer, the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for *13 purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been suppressed. 488 Pa. at 307, 412 A. 2d at 522." 365 Pa. Super. 106, 111-112, 528 A.2d 1385, 1387 (1987). In its Berkemer opinion, this Court cited the Pennsylvania Supreme Court's opinion in Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980), with approval. 468 U.S., at 441, n. 34. Thus, there appears to be no significant difference between the rule of law that is generally applied to traffic stops in Pennsylvania and the rule that this Court would approve in other States. There is, however, a difference of opinion on the question whether the rule was correctly applied in this case. The Superior Court of Pennsylvania was divided on the issue. See 365 Pa. Super., at 117, 528 A. 2d, at 1390 (Rowley, J., concurring and dissenting). It was therefore quite appropriate for the prosecutor to seek review in the Supreme Court of Pennsylvania. That court summarily denied review without opinion. See 518 Pa. 635, 542 A.2d 1365 (1988). That action was quite appropriate for the highest court of a large State like Pennsylvania because such a court is obviously much too busy to review every arguable misapplication of settled law in cases of this kind. For reasons that are unclear to me, however, this Court seems to welcome the opportunity to perform an error-correcting function in cases that do not merit the attention of the highest court of a sovereign State. See, e. g., Florida v. Meyers, 466 U.S. 380 (1984) (per curiam); Illinois v. Batchelder, 463 U.S. 1112 (1983) (per curiam). Although there are cases in which "there are special and important reasons" for correcting an error that is committed by another court, see this Court's Rule 17.1, this surely is not such a case. The Court does not suggest that this case involves an *14 important and unsettled question of federal law or that there is confusion among the state and federal courts concerning what legal rules govern the application of Miranda to ordinary traffic stops. Rather, the Court simply holds that the Superior Court of Pennsylvania misapplied our decision in Berkemer to "[t]he facts in this record." Ante, at 11. In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance "beyond the facts and parties involved," Boag v. MacDougall, 454 U.S. 364, 368 (1982) (REHNQUIST, J., dissenting), than in our acting as "self-appointed . . . supervisors of the administration of justice in the state judicial systems," Florida v. Meyers, 466 U. S., at 385 (STEVENS, J., dissenting). Accordingly, because I would not disturb the decision of the Supreme Court of Pennsylvania — which, incidentally, is the court to which the petitioner asks us to direct the writ of certiorari — I respectfully dissent.

The Court explains why it reverses the decision of the Superior Court of Pennsylvania in this drunken driving case, but it does not explain why it granted certiorari. In the Court concluded that Miranda warnings are not required during a traffic stop unless the citizen is taken into custody; that there is no bright-line rule for determining when detentions short of formal arrest constitute custody; and that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation," The rule applied in Pennsylvania is strikingly similar to this Court's statement in Berkemer. As the Pennsylvania Superior Court explained in this case: "In Pennsylvania, `custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest. Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.' "In the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for *13 purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been 488 Pa. at" In its Berkemer opinion, this Court cited the Pennsylvania Supreme Court's opinion in with n. 34. Thus, there appears to be no significant difference between the rule of law that is generally applied to traffic stops in Pennsylvania and the rule that this Court would approve in other States. There is, however, a difference of opinion on the question whether the rule was correctly applied in this case. The Superior Court of Pennsylvania was divided on the issue. See It was therefore quite appropriate for the prosecutor to seek review in the Supreme Court of Pennsylvania. That court summarily denied review without opinion. See That action was quite appropriate for the highest court of a large State like Pennsylvania because such a court is obviously much too busy to review every arguable misapplication of settled law in cases of this kind. For reasons that are unclear to me, however, this Court seems to welcome the opportunity to perform an error-correcting function in cases that do not merit the attention of the highest court of a sovereign State. See, e. g., ; Although there are cases in which "there are special and important reasons" for correcting an error that is committed by another court, see this Court's Rule 17.1, this surely is not such a case. The Court does not suggest that this case involves an *14 important and unsettled question of federal law or that there is confusion among the state and federal courts concerning what legal rules govern the application of Miranda to ordinary traffic stops. Rather, the Court simply holds that the Superior Court of Pennsylvania misapplied our decision in Berkemer to "[t]he facts in this record." Ante, at 11. In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance "beyond the facts and parties involved," than in our acting as "self-appointed supervisors of the administration of justice in the state judicial systems," Accordingly, because I would not disturb the decision of the Supreme Court of Pennsylvania — which, incidentally, is the court to which the petitioner asks us to direct the writ of certiorari — I respectfully dissent.

Justice Blackmun

majority

Bellotti v. Baird

https://www.courtlistener.com/opinion/109531/bellotti-v-baird/

https://www.courtlistener.com/api/rest/v3/clusters/109531/

1975-172

In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may *134 be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by the Supreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal. I On August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled "An Act to protect unborn children and maternal health within present constitutional limits." The Act, Mass. Acts and Resolves 1974, c. 706, § 1, amended Mass. Gen. Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding §§ 12H through 12R.[1] Section 12P provides: "(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior *135 court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother. "If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient. "(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files. "Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R." All nonemergency abortions are made subject to the provisions of § 12P by § 12N.[2] Violations of § 12N are *136 punishable under § 12Q by a fine of not less than $100 nor more than $2,000.[3] Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.[4] II On October 30, 1974, one day prior to the effective date of the Act,[5] plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U.S. C. §§ 1343 (3), 1331, and 2201, and 42 U.S. C. § 1983, and claiming that § 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U.S. C. §§ 2281 and 2284. On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of § 12P, and accepting the request for a three-judge court.[6] Record Doc. 2. *137 The plaintiffs, and the classes they purported to represent, are: 1. William Baird, a citizen of New York. 2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 13, 43. 3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents.[7]Id., at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable *138 of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by § 12P. App. 13, 43. 4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. Ibid. The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth. Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated.[8] App. 24. On November 13, appellants filed a "Motion to dismiss and/or for summary judgment," arguing, inter alia, that the District Court "should abstain from deciding any issue in this case." Id., at 23. In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that § 12P, particularly in view of its judicial-review provision, "was *139 susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question." Record Doc. 5, p. 12. They cited Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941), and Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 510-511 (1972), for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained. The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, 1975, the three-judge District Court, by a divided vote, handed down a decision holding § 12P unconstitutional and void. 393 F. Supp. 847. An order was entered declaring § 12P "and such other portions of the chapter [112] insofar as they make specific reference thereto" void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34. The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed classes, 393 F. Supp., at 850-852,[9] and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, id., at 849-850. It found that "a substantial number of females under the age of 18 are capable of forming a valid consent," and viewed the overall question as "whether the state can be permitted *140 to restrain the free exercise of that consent, to the extent that it has endeavored to do so." Id., at 855. In regard to the meaning of § 12P, the majority made the following comments: "1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it. "2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute's provision calling for the minor's own consent recognizes that at least some minors can consent, but the minor's consent must be supplemented in every case, either by the consent of both parents, or by a court order. ..... "4. The statute does not purport simply to provide a check on the validity of the minor's consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests." 393 F. Supp., at 855. "The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation." Id., at 855 n. 10. "The parents not only must be consulted, they are given a veto." Id., at 856. The majority observed that " `neither the Fourteenth *141 Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967, 387 U.S. 1, 13," ibid., and, accordingly, held that the State cannot control a minor's abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that "the statute is cast not in terms of protecting the minor . . . but in recognizing independent rights of parents," the majority concluded that "[t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own?" Ibid. The majority found that in the instant situation, unlike others, the parents' interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central Missouri v. Danforth, 392 F. Supp. 1362 (ED Mo. 1975), see ante, p. 52, concluded: "But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child's, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected." 393 F. Supp., at 857. The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, "have been deprived of their legal rights without due process of law," ibid., that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Id., at 857-865. Most important, however, the dissent's view of the *142 statute differed markedly from the interpretation adopted by the majority. The dissent stated: "I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents[[*]] ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents' refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion." Id., at 864. The indicated footnote reads: "The majority speculate concerning possible interpretations of the `for good cause shown' language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute." Id., at 864 n. 15. *143 Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central Missouri v. Danforth, ante, p. 52, and its companion cross-appeal. 423 U.S. 982 (1975). III Appellants and intervenor-appellant attack the District Court's majority decision on a number of grounds. They argue, inter alia, and each in their or her own way, that § 12P properly preserves the primacy of the family unit by reinforcing the role of parents in fundamental decisions affecting family members; that the District Court erred in failing to join Moe I's parents; that it abused its discretion by failing to appoint a guardian ad litem; and that it erred in finding the statute facially invalid when it was capable of a construction that would withstand constitutional analysis. The interpretation placed on the statute by appellants in this Court is of some importance and merits attention, for they are the officials charged with enforcement of the statute.[10] *144 Appellants assert, first, that under the statute parental consent may not be refused on the basis of concerns exclusively of the parent. Indeed, "the `competing' parental right consists exclusively of the right to assess independently, for their minor child, what will serve that child's best interest. . . . [I]n operation, the parents' actual deliberation must range no further than would that of a pregnant adult making her own abortion decision." Brief for Appellants 23. And the superior court's review will ensure that parental objection based upon other considerations will not operate to bar the minor's abortion. Id., at 22-23. See also Brief for Intervenor-Appellant 26. Second, appellants argue that the last paragraph of § 12P[11] preserves the "mature minor" rule in Massachusetts, under which a child determined by a court to be capable of giving informed consent will be allowed to do so. Appellants argue that under this rule a pregnant minor could file a complaint in superior court seeking authorization for an abortion, and, "[i]mportantly, such a complaint could be filed regardless of whether the parents had been consulted or had withheld their consent." Brief for Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the intervenor-appellant assert that the procedure employed would be structured *145 so as to be speedy and nonburdensome, and would ensure anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26. Finally, appellants argue that under § 12P, a judge of the superior court may permit an abortion without parental consent for a minor incapable of rendering informed consent, provided that there is "good cause shown." Brief for Appellants 38. "Good cause" includes a showing that the abortion is in the minor's best interests. Id., at 39. The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a "parental veto."[12] Appellees, however, on their part, take an entirely different view of the statute. They argue that the statute *146 creates a right to a parental veto,[13] that it creates an irrebuttable presumption that a minor is incapable of informed consent,[14] and that the statute does not permit abortion without parental consent in the case of a mature minor or, in the case of a minor incapable of giving consent, where the parents are irrationally opposed to abortion.[15] Appellees specifically object to abstention. Their objection is based upon their opinion that "the statute gives to parents of minors an unbridled veto," Brief for Appellees 49, and that once that veto is exercised, the minor has the burden of proving to the superior court judge that "good cause" exists. Ibid. They view the "good cause" hearing as forcing the judge to choose "between the privacy rights of the young woman and the rights of the parents as established by the statute." Ibid. Assuming that "good cause" has a broader meaning, appellees argue that the hearing itself makes the statute unconstitutional, because of the burden it imposes and the delay it entails. Ibid. IV In deciding this case, we need go no further than the claim that the District Court should have abstained pending construction of the statute by the Massachusetts courts. As we have held on numerous occasions, abstention *147 is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." Harrison v. NAACP, 360 U.S. 167, 177 (1959). See also Colorado River Cons. Dist. v. United States, 424 U.S. 800, 813-814 (1976); Carey v. Sugar, 425 U.S. 73, 78-79 (1976); Kusper v. Pontikes, 414 U.S. 51, 54-55 (1973); Lake Carriers' Assn. v. MacMullan, 406 U. S., at 510-511; Zwickler v. Koota, 389 U.S. 241, 249 (1967); Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent. In Planned Parenthood of Central Missouri v. Danforth, we today struck down a statute that created a parental veto. Ante, at 72-75. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult is not unconstitutional unless it unduly burdens the right to seek an abortion. In this case, we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent. Without holding that a requirement of a court hearing would not unduly burden the rights of a mature adult, cf. Doe v. Rampton, 366 F. Supp. 189 (Utah 1973), we think it clear that in the instant litigation adoption of appellants' interpretation would "at least materially change the nature of the problem" that appellants claim is presented. Harrison v. NAACP, 360 U. S., at 177. Whether the Supreme Judicial Court will so interpret *148 the statute, or whether it will interpret the statute to require consideration of factors not mentioned above, impose burdens more serious than those suggested, or create some unanticipated interference with the doctor-patient relationship, we cannot now determine.[16] Nor need we determine what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome. It is sufficient that the statute is susceptible of the interpretation offered by appellants, and we so find, and that such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute, as it clearly would. Indeed, in the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented. Appellees also raise, however, a claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion, and the consent required in regard to other medical procedures. This issue has come to the fore through the advent of a Massachusetts statute, enacted subsequent to the decision of the District Court, dealing with consent by minors to medical procedures other than abortion and sterilization.[17] As *149 we hold today in Planned Parenthood, however, not all distinction between abortion and other procedures is forbidden. Ante, at 80-81. The constitutionality of such *150 distinction will depend upon its degree and the justification for it. The constitutional issue cannot now be defined, however, for the degree of distinction between the consent procedure for abortions and the consent procedures for other medical procedures cannot be established until the nature of the consent required for abortions is established. In these circumstances, the federal court should stay its hand to the same extent as in a challenge directly to the burdens created by the statute. Finally, we note that the Supreme Judicial Court of Massachusetts has adopted a Rule of Court under which an issue of interpretation of Massachusetts law may be certified directly to that court for prompt resolution. Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 (1976). This Court often has remarked that the equitable practice of abstention is limited by considerations of " `the delay and expense to which application of the abstention doctrine inevitably gives rise.' " Lake Carriers' Assn. v. MacMullan, 406 U. S., at 509, quoting England v. Medical Examiners, 375 U.S. 411, 418 (1964). See Kusper v. Pontikes, 414 U. S., at 54. As we have also noted, however, the availability of an adequate certification procedure[18] "does, of course, in the long run save time, *151 energy, and resources and helps build a cooperative judicial federalism." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974). This Court has utilized certification procedures in the past, as have courts of appeals. Ibid. and cases cited therein at 390 nn. 5 and 6. The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis. Further, in light of our disapproval of a "parental veto" today in Planned Parenthood, we must assume that the lower Massachusetts courts, if called upon to enforce the statute pending interpretation by the Supreme Judicial Court, will not impose this most serious barrier. Insofar as the issue thus ceases to become one of total denial of access and becomes one rather of relative burden, the cost of abstention is reduced and the desirability of that equitable remedy accordingly increased. V We therefore hold that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of § 12P and the procedure it imposes. In regard to the claim of impermissible discrimination due to the 1975 statute, a claim not raised in the District Court but subject to inquiry through an amended complaint, or perhaps by other means, we believe that it would not be inappropriate for the District Court, when any procedural requirement *152 has been complied with, also to certify a question concerning the meaning of the new statute, and the extent to which its procedures differ from the procedures that must be followed under § 12P. The judgment of the District Court is vacated, and the cases are remanded to that court for proceedings consistent with this opinion. It is so ordered.

In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may *4 be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by the Supreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal. I On August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled "An Act to protect unborn children and maternal health within present constitutional limits." The Act, Mass. Acts and Resolves 1974, c. 706, 1, amended Mass. Gen. Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding 12H through 12R.[1] Section 12P provides: "(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior *5 court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother. "If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient. "(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files. "Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R." All nonemergency abortions are made subject to the provisions of 12P by 12N.[2] Violations of 12N are *6 punishable under 12Q by a fine of not less than $100 nor more than $2,000.[3] Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.[4] II On October 30, 1974, one day prior to the effective date of the Act,[5] plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U.S. C. 43 (3), 31, and 2201, and 42 U.S. C. 1983, and claiming that 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U.S. C. 2281 and 2284. On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of 12P, and accepting the request for a three-judge court.[6] Record Doc. 2. *7 The plaintiffs, and the they purported to represent, are: 1. William Baird, a citizen of New York. 2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 43. 3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents.[7] at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable *8 of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by 12P. App. 43. 4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth. Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated.[8] App. 24. On November appellants filed a "Motion to dismiss and/or for summary judgment," arguing, inter alia, that the District Court "should abstain from deciding any issue in this case." In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that 12P, particularly in view of its judicial-review provision, "was *9 susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question." Record Doc. 5, p. 12. They cited Railroad and Lake Carriers' for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained. The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, the three-judge District Court, by a divided vote, handed down a decision holding 12P unconstitutional and void. An order was entered declaring 12P "and such other portions of the chapter [112] insofar as they make specific reference thereto" void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34. The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed -852,[9] and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, It found that "a substantial number of females under the age of 18 are capable of forming a valid consent," and viewed the overall question as "whether the state can be permitted *140 to restrain the free exercise of that consent, to the extent that it has endeavored to do so." In regard to the meaning of 12P, the majority made the following comments: "1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it. "2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute's provision calling for the minor's own consent recognizes that at least some minors can consent, but the minor's consent must be supplemented in every case, either by the consent of both parents, or by a court order. "4. The statute does not purport simply to provide a check on the validity of the minor's consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests." 393 F. Supp., "The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation." n. 10. "The parents not only must be consulted, they are given a veto." The majority observed that " `neither the Fourteenth *141 Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967," ib and, accordingly, held that the State cannot control a minor's abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that "the statute is cast not in terms of protecting the minor but in recognizing independent rights of parents," the majority concluded that "[t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own?" The majority found that in the instant situation, unlike others, the parents' interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central 392 F. Supp. 62 see ante, p. 52, concluded: "But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child's, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected." The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, "have been deprived of their legal rights without due process of law," ib that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Most important, however, the dissent's view of the *142 statute differed markedly from the interpretation adopted by the majority. The dissent stated: "I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents[[*]] ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents' refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion." The indicated footnote reads: "The majority speculate concerning possible interpretations of the `for good cause shown' language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute." n. 15. *143 Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central ante, p. 52, and its companion cross-appeal. III Appellants and intervenor-appellant attack the District Court's majority decision on a number of grounds. They argue, inter alia, and each in their or her own way, that 12P properly preserves the primacy of the family unit by reinforcing the role of parents in fundamental decisions affecting family members; that the District Court erred in failing to join Moe I's parents; that it abused its discretion by failing to appoint a guardian ad litem; and that it erred in finding the statute facially invalid when it was capable of a construction that would withstand constitutional analysis. The interpretation placed on the statute by appellants in this Court is of some importance and merits attention, for they are the officials charged with enforcement of the statute.[10] *144 Appellants assert, first, that under the statute parental consent may not be refused on the basis of concerns exclusively of the parent. Indeed, "the `competing' parental right consists exclusively of the right to assess independently, for their minor child, what will serve that child's best interest. [I]n operation, the parents' actual deliberation must range no further than would that of a pregnant adult making her own abortion decision." Brief for Appellants 23. And the superior court's review will ensure that parental objection based upon other considerations will not operate to bar the minor's abortion. See also Brief for Intervenor-Appellant 26. Second, appellants argue that the last paragraph of 12P[11] preserves the "mature minor" rule in Massachusetts, under which a child determined by a court to be capable of giving informed consent will be allowed to do so. Appellants argue that under this rule a pregnant minor could file a complaint in superior court seeking authorization for an abortion, and, "[i]mportantly, such a complaint could be filed regardless of whether the parents had been consulted or had withheld their consent." Brief for Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the intervenor-appellant assert that the procedure employed would be structured *145 so as to be speedy and nonburdensome, and would ensure anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26. Finally, appellants argue that under 12P, a judge of the superior court may permit an abortion without parental consent for a minor incapable of rendering informed consent, provided that there is "good cause shown." Brief for Appellants 38. "Good cause" includes a showing that the abortion is in the minor's best interests. The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a "parental veto."[12] Appellees, however, on their part, take an entirely different view of the statute. They argue that the statute *146 creates a right to a parental veto,[] that it creates an irrebuttable presumption that a minor is incapable of informed consent,[14] and that the statute does not permit abortion without parental consent in the case of a mature minor or, in the case of a minor incapable of giving consent, where the parents are irrationally opposed to abortion.[15] Appellees specifically object to abstention. Their objection is based upon their opinion that "the statute gives to parents of minors an unbridled veto," Brief for Appellees 49, and that once that veto is exercised, the minor has the burden of proving to the superior court judge that "good cause" exists. They view the "good cause" hearing as forcing the judge to choose "between the privacy rights of the young woman and the rights of the parents as established by the statute." Assuming that "good cause" has a broader meaning, appellees argue that the hearing itself makes the statute unconstitutional, because of the burden it imposes and the delay it entails. IV In deciding this case, we need go no further than the claim that the District Court should have abstained pending construction of the statute by the Massachusetts courts. As we have held on numerous occasions, abstention *147 is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." See also Colorado River Cons. 8-814 ; ; ; Lake Carriers' 406 U. S., at ; ; Railroad We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent. In Planned Parenthood of Central we today struck down a statute that created a parental veto. Ante, at 72-75. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult is not unconstitutional unless it unduly burdens the right to seek an abortion. In this case, we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent. Without holding that a requirement of a court hearing would not unduly burden the rights of a mature adult, cf. we think it clear that in the instant litigation adoption of appellants' interpretation would "at least materially change the nature of the problem" that appellants claim is presented. 360 U. S., at Whether the Supreme Judicial Court will so interpret *148 the statute, or whether it will interpret the statute to require consideration of factors not mentioned above, impose burdens more serious than those suggested, or create some unanticipated interference with the doctor-patient relationship, we cannot now determine.[16] Nor need we determine what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome. It is sufficient that the statute is susceptible of the interpretation offered by appellants, and we so find, and that such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute, as it clearly would. Indeed, in the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented. Appellees also raise, however, a claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion, and the consent required in regard to other medical procedures. This issue has come to the fore through the advent of a Massachusetts statute, enacted subsequent to the decision of the District Court, dealing with consent by minors to medical procedures other than abortion and sterilization.[17] As *149 we hold today in Planned Parenthood, however, not all distinction between abortion and other procedures is forbidden. Ante, at 80-81. The constitutionality of such *150 distinction will depend upon its degree and the justification for it. The constitutional issue cannot now be defined, however, for the degree of distinction between the consent procedure for abortions and the consent procedures for other medical procedures cannot be established until the nature of the consent required for abortions is established. In these circumstances, the federal court should stay its hand to the same extent as in a challenge directly to the burdens created by the statute. Finally, we note that the Supreme Judicial Court of Massachusetts has adopted a Rule of Court under which an issue of interpretation of Massachusetts law may be certified directly to that court for prompt resolution. Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 This Court often has remarked that the equitable practice of abstention is limited by considerations of " `the delay and expense to which application of the abstention doctrine inevitably gives rise.' " Lake Carriers' quoting See As we have also noted, however, the availability of an adequate certification procedure[18] "does, of course, in the long run save time, *151 energy, and resources and helps build a cooperative judicial federalism." Lehman This Court has utilized certification procedures in the past, as have courts of appeals. and cases cited therein 0 nn. 5 and 6. The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis. Further, in light of our disapproval of a "parental veto" today in Planned Parenthood, we must assume that the lower Massachusetts courts, if called upon to enforce the statute pending interpretation by the Supreme Judicial Court, will not impose this most serious barrier. Insofar as the issue thus ceases to become one of total denial of access and becomes one rather of relative burden, the cost of abstention is reduced and the desirability of that equitable remedy accordingly increased. V We therefore hold that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of 12P and the procedure it imposes. In regard to the claim of impermissible discrimination due to the statute, a claim not raised in the District Court but subject to inquiry through an amended complaint, or perhaps by other means, we believe that it would not be inappropriate for the District Court, when any procedural requirement *152 has been complied with, also to certify a question concerning the meaning of the new statute, and the extent to which its procedures differ from the procedures that must be followed under 12P. The judgment of the District Court is vacated, and the cases are remanded to that court for proceedings consistent with this opinion. It is so ordered.

Justice Scalia

majority

Thompson v. North American Stainless, LP

https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/

https://www.courtlistener.com/api/rest/v3/clusters/183480/

2010-014

Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S. C. §2000e et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 (ED Ky. 2006). After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. 567 F.3d 804 (2009). The court reasoned that because Thompson did not “engag[e] in any statutorily protected 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” Id., at 807–808. We granted certiorari. 561 U. S. ___ (2010). I Title VII provides that “[i]t shall be an unlawful em­ ployment practice for an employer to discriminate against any of his employees . . . because he has made a charge” under Title VII. 42 U.S. C. §2000e–3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought . . . by the person claiming to be aggrieved . . . by the al­ leged unlawful employment practice.” §2000e–5(b), (f)(1). It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action? II With regard to the first question, we have little diffi­ culty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (2006), we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title Cite as: 562 U. S. ____ (2011) 3 Opinion of the Court VII’s antiretaliation provision with its substantive antidis­ crimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to . . . compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment oppor­ tunities or otherwise adversely affect his status as an employee.’ ” Id., at 62 (quoting 42 U.S. C. §2000e–2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are prohibited. 548 U.S., at 62 (quoting §2000e–3(a) (empha­ sis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ­ ment.” Id., at 64. Rather, Title VII’s antiretaliation pro­ vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted). We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Burlington. Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems con­ cerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argues, 4 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court will place the employer at risk any time it fires any em­ ployee who happens to have a connection to a different employee who filed a charge with the EEOC. Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text. We must also decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U.S., at 69, “the signifi­ cance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which re­ taliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68–69. III The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S. C. §2000e–5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement Cite as: 562 U. S. ____ (2011) 5 Opinion of the Court that the plaintiff have Article III standing. 567 F.3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the mini­ mal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue. We have suggested in dictum that the Title VII ag­ grievement requirement conferred a right to sue on all who satisfied Article III standing. Trafficante v. Metro politan Life Ins. Co., 409 U.S. 205 (1972), involved the “person aggrieved” provision of Title VIII (the Fair Hous­ ing Act) rather than Title VII. In deciding the case, how­ ever, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “con­ cluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Id., at 209 (quoting Hackett v. McGuire Bros., Inc., 445 F.2d 442, 446 (1971)). We think that dictum regarding Title VII was too expan­ sive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coexten­ sive with Article III “insofar as tenants of the same hous ing unit that is charged with discrimination are con cerned.” 409 U.S., at 209 (emphasis added). Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III per­ mits, see Bennett v. Spear, 520 U.S. 154, 165–166 (1997); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 6 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court 109 (1979), though the holdings of those cases are com­ patible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum. We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd conse­ quences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and there­ fore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III. At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the em­ ployee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] ag­ grieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning. In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Cite as: 562 U. S. ____ (2011) 7 Opinion of the Court Act, 5 U.S. C. §551 et seq., authorizes suit to challenge a federal agency by any “person . . . adversely affected or aggrieved . . . within the meaning of a relevant statute.” §702. We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Fed eration, 497 U.S. 871, 883 (1990). We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in­ consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400 (1987). We hold that the term “ag­ grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 495 (1998) (internal quotation marks omitted), while excluding plain­ tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII. Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation— collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue. 8 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court * * * The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. ____ (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–291 _________________ ERIC L. THOMPSON, PETITIONER v.

Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. The court reasoned that because Thompson did not “engag[e] in any statutorily protected 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” at 807–808. We granted certiorari. 561 U. S. (2010). I Title VII provides that “[i]t shall be an unlawful em­ ployment practice for an employer to discriminate against any of his employees because he has made a charge” under Title VII. 42 U.S. C. –3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought by the person claiming to be aggrieved by the al­ leged unlawful employment practice.” –5(b), (f)(1). It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action? II With regard to the first question, we have little diffi­ culty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In N. & S. F. R. we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title Cite as: 562 U. S. (2011) 3 Opinion of the Court VII’s antiretaliation provision with its substantive antidis­ crimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment oppor­ tunities or otherwise adversely affect his status as an employee.’ ” (quoting 42 U.S. C. –2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are 548 U.S., (quoting –3(a) (empha­ sis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ­ ment.” Rather, Title VII’s antiretaliation pro­ vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted). We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems con­ cerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the standard to third-party reprisals, NAS argues, 4 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court will place the employer at risk any time it fires any em­ ployee who happens to have a connection to a different employee who filed a charge with the EEOC. Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text. We must also decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ ways meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in “the signifi­ cance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which re­ taliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” –69. III The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought by the person claiming to be aggrieved.” 42 U.S. C. –5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement Cite as: 562 U. S. (2011) 5 Opinion of the Court that the plaintiff have Article III standing. 567 F.3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the mini­ mal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue. We have suggested in dictum that the Title VII ag­ grievement requirement conferred a right to sue on all who satisfied Article III standing. involved the “person aggrieved” provision of Title VIII (the Fair Hous­ ing Act) rather than Title VII. In deciding the case, how­ ever, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “con­ cluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” ). We think that dictum regarding Title VII was too expan­ sive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coexten­ sive with Article III “insofar as tenants of the same hous ing unit that is charged with discrimination are con cerned.” 409 U.S., Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III per­ mits, see ; Gladstone, 6 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court 109 (1979), though the holdings of those cases are com­ patible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum. We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd conse­ quences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and there­ fore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III. At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the em­ ployee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] ag­ grieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning. In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Cite as: 562 U. S. (2011) 7 Opinion of the Court Act, 5 U.S. C. et seq., authorizes suit to challenge a federal agency by any “person adversely affected or aggrieved within the meaning of a relevant statute.” We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in­ consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400 (1987). We hold that the term “ag­ grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., (internal quotation marks omitted), while excluding plain­ tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII. Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation— collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue. 8 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court * * * The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–291 ERIC L. THOMPSON, PETITIONER v.

Justice Kennedy

majority

Ashcroft v. Iqbal

https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/

https://www.courtlistener.com/api/rest/v3/clusters/145875/

2008-056

Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners' official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court's decision. Respondent's account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, *1943 plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent's pleadings are insufficient. I Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 "the FBI had received more than 96,000 tips or potential leads from the public." Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11-12 (Apr.2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/ 0306/ full.pdf?bcsi_scan_61073EC0F74759AD=0 & bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court's case file). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Id., at 1. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be "of `high interest'" to the investigation. Id., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. Id., at 112-113. Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Iqbal v. Hasty, 490 F.3d 143, 147-148 (C.A.2 2007). Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person "of high interest" to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Id., at 148. As the facility's name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. Ibid. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Ibid. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. Id., at 149. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 "John Doe" federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners—officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04-CV-1809 (JG)(JA), ¶¶ 10-11, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent's arrest or his confinement in the MDC's general prison population. Rather, it concentrates on his *1944 treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent's jailors "kicked him in the stomach, punched him in the face, and dragged him across" his cell without justification, id., ¶ 113, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, id., ¶¶ 143-145, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be "[n]o prayers for terrorists," id., ¶ 154, App. to Pet. for Cert. 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11." Id., ¶ 47, at 164a. It further alleges that "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were `cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001." Id., ¶ 69, at 168a. Lastly, the complaint posits that petitioners "each knew of, condoned, and willfully and maliciously agreed to subject" respondent to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Id., ¶ 96, at 172a-173a. The pleading names Ashcroft as the "principal architect" of the policy, id., ¶ 10, at 157a, and identifies Mueller as "instrumental in [its] adoption, promulgation, and implementation." Id., ¶ 11, at 157a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent's complaint as true, the court held that "it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against" petitioners. Id., at 136a-137a (relying on Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. The Court of Appeals considered Twombly's applicability to this case. Acknowledging that Twombly retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals' opinion discussed at length how to apply this Court's "standard for assessing the adequacy of pleadings." 490 F.3d, at 155. It concluded that Twombly called for a "flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Id., at 157-158. The court found that petitioners' appeal did not present one of "those contexts" requiring amplification. As a consequence, it held respondent's pleading adequate to allege petitioners' personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Id., at 174. *1945 Judge Cabranes concurred. He agreed that the majority's "discussion of the relevant pleading standards reflect[ed] the uneasy compromise . . . between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure." Id., at 178 (internal quotation marks and citations omitted). Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials—entitled to assert the defense of qualified immunity and charged with responding to "a national and international security emergency unprecedented in the history of the American Republic"—to the burdens of discovery on the basis of a complaint as nonspecific as respondent's. Id., at 179. Reluctant to vindicate that concern as a member of the Court of Appeals, ibid., Judge Cabranes urged this Court to address the appropriate pleading standard "at the earliest opportunity." Id., at 178. We granted certiorari, 554 U.S. ___, 128 S. Ct. 2931, 171 L. Ed. 2d 863 (2008), and now reverse. II We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court's order denying petitioners' motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subjectmatter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (citing United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002)). According to respondent, the District Court's order denying petitioners' motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A With exceptions inapplicable here, Congress has vested the courts of appeals with "jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Though the statute's finality requirement ensures that "interlocutory appeals—appeals before the end of district court proceedings—are the exception, not the rule," Johnson v. Jones, 515 U.S. 304, 309, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995), it does not prevent "review of all prejudgment orders." Behrens v. Pelletier, 516 U.S. 299, 305, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996). Under the collateral-order doctrine a limited set of district-court orders are reviewable "though short of final judgment." Ibid. The orders within this narrow category "are immediately appealable because they `finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'" Ibid. (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949)). A district-court decision denying a Government officer's claim of qualified immunity can fall within the narrow class of appealable orders despite "the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). This is so because qualified immunity—which shields Government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights," Harlow v. Fitzgerald, *1946 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)—is both a defense to liability and a limited "entitlement not to stand trial or face the other burdens of litigation." Mitchell, supra, 472 U.S., at 526, 105 S. Ct. 2806. Provided it "turns on an issue of law," id., at 530, 105 S. Ct. 2806, a district-court order denying qualified immunity "`conclusively determine[s]'" that the defendant must bear the burdens of discovery; is "conceptually distinct from the merits of the plaintiff's claim"; and would prove "effectively unreviewable on appeal from a final judgment." Id., at 527-528 (citing Cohen, supra, at 546, 69 S. Ct. 1221). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a "final decision" within the meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners' appeal. The District Court's order denying petitioners' motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision "subject to immediate appeal." Ibid. Respondent says that "a qualified immunity appeal based solely on the complaint's failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction." Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. In Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006), the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff "must plead and prove in order to win" a First Amendment retaliation claim. Id., at 257, n. 5, 126 S. Ct. 1695. Similarly, two Terms ago in Wilkie v. Robbins, 551 U.S. 537, 127 S. Ct. 2588, 168 L. Ed. 2d 389 (2007), the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property rights. 551 U.S., at 549, n. 4, 127 S. Ct. 2588. These cases cannot be squared with respondent's argument that the collateralorder doctrine restricts appellate jurisdiction to the "ultimate issu[e]" whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in Hartman and Wilkie, since whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent's pleadings is both "inextricably intertwined with," Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995), and "directly implicated by," Hartman, supra, at 257, n. *1947 5, 126 S. Ct. 1695, the qualified immunity defense. Respondent counters that our holding in Johnson, 515 U.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238, confirms the want of subjectmatter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered "the appealability of a portion of" the District Court's summary judgment order that, "though entered in a `qualified immunity' case, determine[d] only" that there was a genuine issue of material fact that three of the defendants participated in the beating. Id., at 313, 115 S. Ct. 2151. In finding that order not a "final decision" for purposes of § 1291, the Johnson Court cited Mitchell for the proposition that only decisions turning "`on an issue of law'" are subject to immediate appeal. 515 U.S., at 313, 115 S. Ct. 2151. Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a "factrelated" legal inquiry. Id., at 314, 115 S. Ct. 2151. To conduct it, a court of appeals may be required to consult a "vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials." Id., at 316, 115 S. Ct. 2151. That process generally involves matters more within a district court's ken and may replicate inefficiently questions that will arise on appeal following final judgment. Ibid. Finding those concerns predominant, Johnson held that the collateral orders that are "final" under Mitchell turn on "abstract," rather than "fact-based," issues of law. 515 U.S., at 317, 115 S. Ct. 2151. The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of "factbased" and "abstract" legal questions used to guide the Court's decision in Johnson are not well defined. Here, however, the order denying petitioners' motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent's complaint; resort to a "vast pretrial record" on petitioners' motion to dismiss was unnecessary. Id., at 316, 115 S. Ct. 2151. And determining whether respondent's complaint has the "heft" to state a claim is a task well within an appellate court's core competency. Twombly, 550 U.S., at 557, 127 S. Ct. 1955. Evaluating the sufficiency of a complaint is not a "fact-based" question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court's order denying petitioners' motion to dismiss is a final decision under the collateral-order doctrine over which the Court of Appeals had, and this Court has, jurisdiction. We proceed to consider the merits of petitioners' appeal. III In Twombly, supra, at 553-554, 127 S. Ct. 1955, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity. In Bivens—proceeding on the theory that a right suggests a remedy—this Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 *1948 (2001). Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants." 534 U.S., at 68, 122 S. Ct. 515. See also Wilkie, 551 U.S., at 549-550, 127 S. Ct. 2588. That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent's First Amendment claim is actionable under Bivens. In the limited settings where Bivens does apply, the implied cause of action is the "federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983." Hartman, 547 U.S., at 254, n. 2, 126 S. Ct. 1695. Cf. Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 ("[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior"). See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (finding no vicarious liability for a municipal "person" under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L. Ed. 329 (1812) (a federal official's liability "will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S. Ct. 1286, 3 L. Ed. 203 (1888) ("A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties"). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution. The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-541, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (First Amendment); Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (Fifth Amendment). Under extant precedent purposeful discrimination requires more than "intent as volition or intent as awareness of consequences." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). It instead involves a decisionmaker's undertaking a course of action "`because of,' not merely `in spite of,' [the action's] adverse effects upon an identifiable group." Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that *1949 petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin. Respondent disagrees. He argues that, under a theory of "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." Iqbal Brief 45-46. That is to say, respondent believes a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution. We reject this argument. Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. IV A We turn to respondent's complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S. Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S. Ct. 1955. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" Id., at 557, 127 S. Ct. 1955 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S. Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we *1950 "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S. Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and to forestall competitive entry, in violation of the Sherman Act, 15 U.S.C. § 1. Recognizing that § 1 enjoins only anticompetitive conduct "effected by a contract, combination, or conspiracy," Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984), the plaintiffs in Twombly flatly pleaded that the defendants "ha[d] entered into a contract, combination or conspiracy to prevent competitive entry. . . and ha[d] agreed not to compete with one another." 550 U.S., at 551, 127 S. Ct. 1955 (internal quotation marks omitted). The complaint also alleged that the defendants' "parallel course of conduct . . . to prevent competition" and inflate prices was indicative of the unlawful agreement alleged. Ibid. (internal quotation marks omitted). The Court held the plaintiffs' complaint deficient under Rule 8. In doing so it first noted that the plaintiffs' assertion of an unlawful agreement was a "`legal conclusion'" and, as such, was not entitled to the assumption of truth. Id., at 555, 127 S. Ct. 1955. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce. The Court next addressed the "nub" of the plaintiffs' complaint—the well-pleaded, nonconclusory factual allegation of parallel behavior—to determine whether it gave rise to a "plausible suggestion of conspiracy." Id., at 565-566, 127 S. Ct. 1955. Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior. Id., at 567, 127 S. Ct. 1955. Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs' complaint must be dismissed. Id., at 570, 127 S. Ct. 1955. B Under Twombly's construction of Rule 8, we conclude that respondent's complaint *1951 has not "nudged [his] claims" of invidious discrimination "across the line from conceivable to plausible." Ibid. We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint ¶ 96, App. to Pet. for Cert. 173a-174a. The complaint alleges that Ashcroft was the "principal architect" of this invidious policy, id., ¶ 10, at 157a, and that Mueller was "instrumental" in adopting and executing it, id., ¶ 11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, 550 U.S., at 555, 127 S. Ct. 1955, namely, that petitioners adopted a policy "`because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Feeney, 442 U.S., at 279, 99 S. Ct. 2282. As such, the allegations are conclusory and not entitled to be assumed true. Twombly, supra, 550 U.S., at 554-555, 127 S. Ct. 1955. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of a "`contract, combination or conspiracy to prevent competitive entry,'" id., at 551, 127 S. Ct. 1955, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11." Complaint ¶ 47, App. to Pet. for Cert. 164a. It further claims that "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were `cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001." Id., ¶ 69, at 168a. Taken as true, these allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that "obvious alternative explanation" for the arrests, Twombly, supra, at 567, 127 S. Ct. 1955, and the purposeful, invidious discrimination respondent *1952 asks us to infer, discrimination is not a plausible conclusion. But even if the complaint's well-pleaded facts give rise to a plausible inference that respondent's arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent's complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent's constitutional claims against petitioners rest solely on their ostensible "policy of holding post-September-11th detainees" in the ADMAX SHU once they were categorized as "of high interest." Complaint ¶ 69, App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-11 detainees as "of high interest" because of their race, religion, or national origin. This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of "of high interest" for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving "restrictive conditions of confinement" for post-September-11 detainees until they were "`cleared' by the FBI." Ibid. Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners' constitutional obligations. He would need to allege more by way of factual content to "nudg[e]" his claim of purposeful discrimination "across the line from conceivable to plausible." Twombly, 550 U.S., at 570, 127 S. Ct. 1955. To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in Twombly and the pleadings at issue here. In Twombly, the complaint alleged general wrongdoing that extended over a period of years, id., at 551, 127 S. Ct. 1955, whereas here the complaint alleges discrete wrongs—for instance, beatings—by lower level Government actors. The allegations here, if true, and if condoned by petitioners, could be the basis for some inference of wrongful intent on petitioners' part. Despite these distinctions, respondent's pleadings do not suffice to state a claim. Unlike in Twombly, where the doctrine of respondeat superior could bind the corporate defendant, here, as we have noted, petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic. Yet respondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8. It is important to note, however, that we express no opinion concerning the sufficiency of respondent's complaint against the defendants who are not before us. Respondent's account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent's complaint does not entitle him to relief from petitioners. C Respondent offers three arguments that bear on our disposition of his case, but none is persuasive. *1953 1 Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute. Iqbal Brief 37-38. This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. 550 U.S., at 554, 127 S. Ct. 1955. That Rule in turn governs the pleading standard "in all civil actions and proceedings in the United States district courts." Fed. Rule Civ. Proc. 1. Our decision in Twombly expounded the pleading standard for "all civil actions," ibid., and it applies to antitrust and discrimination suits alike. See 550 U.S., at 555-556, and n. 3, 127 S. Ct. 1955. 2 Respondent next implies that our construction of Rule 8 should be tempered where, as here, the Court of Appeals has "instructed the district court to cabin discovery in such a way as to preserve" petitioners' defense of qualified immunity "as much as possible in anticipation of a summary judgment motion." Iqbal Brief 27. We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. Twombly, supra, at 559, 127 S. Ct. 1955 ("It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side" (internal quotation marks and citation omitted)). Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity. The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including "avoidance of disruptive discovery." Siegert v. Gilley, 500 U.S. 226, 236, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991) (KENNEDY, J., concurring in judgment). There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. The costs of diversion are only magnified when Government officials are charged with responding to, as Judge Cabranes aptly put it, "a national and international security emergency unprecedented in the history of the American Republic." 490 F.3d, at 179. It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery. We decline respondent's invitation to relax the pleading requirements on the *1954 ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties. Because respondent's complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. 3 Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners' discriminatory intent "generally," which he equates with a conclusory allegation. Iqbal Brief 32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it claims that petitioners discriminated against him "on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint ¶ 96, App. to Pet. for Cert. 172a-173a. Were we required to accept this allegation as true, respondent's complaint would survive petitioners' motion to dismiss. But the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context. It is true that Rule 9(b) requires particularity when pleading "fraud or mistake," while allowing "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally." But "generally" is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1301, p. 291 (3d ed. 2004) ("[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general `short and plain statement of the claim' mandate in Rule 8(a). . . should control the second sentence of Rule 9(b)"). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label "general allegation," and expect his complaint to survive a motion to dismiss. V We hold that respondent's complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent s he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a despite petitioners' official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court's decision. Respondent's account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, *1943 plead factual matter that, if taken as true, states a that petitioners deprived him of his clearly established constitutional We hold respondent's pleadings are insufficient. I Following the attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 "the FBI had received more than 96,000 tips or potential leads from the public." Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11-12 (Apr.2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/ 0306/ full.pdf?bcsi_scan_61073EC0F74759AD=0 & bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court's case file). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be "of `high interest'" to the investigation. 11. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. 12-113. Respondent was one of the detainees. According to his complaint, in November agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person "of high interest" to the September 11 investigation and in January was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). 48. As the facility's name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. 49. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 "John Doe" federal corrections officers. See The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners—officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04-CV-1809 (JG)(JA), ¶-11, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent's arrest or his confinement in the MDC's general prison population. Rather, it concentrates on his *1944 treatment while confined to the ADMAX SHU. The complaint sets forth various s against defendants who are not before us. For instance, the complaint alleges that respondent's jailors "kicked him in the stomach, punched him in the face, and dragged him across" his cell without justification, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be "[n]o prayers for terrorists," App. to Pet. for Cert. 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men as part of its investigation of the events of September 11." 64a. It further alleges that "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were `cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11," 68a. Lastly, the complaint posits that petitioners "each knew of, condoned, and willfully and maliciously agreed to subject" respondent to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." 72a-173a. The pleading names Ashcroft as the "principal architect" of the policy, 57a, and identifies Mueller as "instrumental in [its] adoption, promulgation, and implementation." 57a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent's complaint as true, the court held that "it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against" petitioners. 36a-137a ). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. The Court of Appeals considered 's applicability to this case. Acknowledging that retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals' opinion discussed at length how to apply this Court's "standard for assessing the adequacy of pleadings." 490 F.3d, 55. It concluded that called for a "flexible `plausibility standard,' which obliges a pleader to amplify a with some factual allegations in those contexts where such amplification is needed to render the plausible." 57-158. The court found that petitioners' appeal did not present one of "those contexts" requiring amplification. As a consequence, it held respondent's pleading adequate to allege petitioners' personal involvement in discriminatory decisions which, if true, violated clearly established constitutional 74. *1945 Judge Cabranes concurred. He agreed that the majority's "discussion of the relevant pleading standards reflect[ed] the uneasy compromise between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure." 78 Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials—entitled to assert the defense of qualified immunity and charged with responding to "a national and international security emergency unprecedented in the history of the American Republic"—to the burdens of discovery on the basis of a complaint as nonspecific as respondent's. 79. Reluctant to vindicate that concern as a member of the Court of Appeals, ib Judge Cabranes urged this Court to address the appropriate pleading standard "at the earliest opportunity." 78. We granted certiorari, 554 U.S. and now reverse. II We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court's order denying petitioners' motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subjectmatter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. According to respondent, the District Court's order denying petitioners' motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A With exceptions inapplicable here, Congress has vested the courts of appeals with "jurisdiction of appeals from all final decisions of the district courts of the United States." Though the statute's finality requirement ensures that "interlocutory appeals—appeals before the end of district court proceedings—are the exception, not the rule," it does not prevent "review of all prejudgment orders." Under the collateral-order doctrine a limited set of district-court orders are reviewable "though short of final judgment." The orders within this narrow category "are immediately appealable because they `finally determine s of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'" ). A district-court decision denying a Government officer's of qualified immunity can fall within the narrow class of appealable orders despite "the absence of a final judgment." This is so because qualified immunity—which shields Government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights," —is both a defense to liability and a limited "entitlement not to stand trial or face the other burdens of litigation." Provided it "turns on an issue of law," at a district-court order denying qualified immunity "`conclusively determine[s]'" that the defendant must bear the burdens of discovery; is "conceptually distinct from the merits of the plaintiff's "; and would prove "effectively unreviewable on appeal from a final judgment." at 527-528 (citing at ). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in But the applicability of the doctrine in the context of qualified-immunity s is well established; and this Court has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a "final decision" within the meaning of 1291. B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners' The District Court's order denying petitioners' motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision "subject to immediate " Respondent says that "a qualified immunity appeal based solely on the complaint's failure to state a and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction." Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. In the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in concerned the elements a plaintiff "must plead and prove in order to win" a First Amendment retaliation the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property n. 4, These cases cannot be squared with respondent's argument that the collateralorder doctrine restricts appellate jurisdiction to the "ultimate issu[e]" whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in and since whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent's pleadings is both "inextricably intertwined with," U.S. 35, and "directly implicated by," n. *1947 5, the qualified immunity defense. Respondent counters that our holding in Johnson, confirms the want of subjectmatter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered "the appealability of a portion of" the District Court's summary judgment order that, "though entered in a `qualified immunity' case, determine[d] only" that there was a genuine issue of material fact that three of the defendants participated in the beating. In finding that order not a "final decision" for purposes of 1291, the Johnson Court cited for the proposition that only decisions turning "`on an issue of law'" are subject to immediate 5 U.S., Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a "factrelated" legal inquiry. To conduct it, a court of appeals may be required to consult a "vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials." That process generally involves matters more within a district court's ken and may replicate inefficiently questions that will arise on appeal following final judgment. Finding those concerns predominant, Johnson held that the collateral orders that are "final" under turn on "abstract," rather than "fact-based," issues of 5 U.S., at 317, The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of "factbased" and "abstract" legal questions used to guide the Court's decision in Johnson are not well defined. Here, however, the order denying petitioners' motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent's complaint; resort to a "vast pretrial record" on petitioners' motion to dismiss was unnecessary. And determining whether respondent's complaint has the "heft" to state a is a task well within an appellate court's core competency. Evaluating the sufficiency of a complaint is not a "fact-based" question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court's order denying petitioners' motion to dismiss is a final decision under the collateral-order doctrine over which the Court of Appeals had, and this Court has, jurisdiction. We proceed to consider the merits of petitioners' III In the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity. In Bivens—proceeding on the theory that a right suggests a remedy—this Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional " Correctional Services 122 S. Ct. 5, 1 L. Ed. 2d 456 Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants." 122 S. Ct. 5. See also -550, That reluctance might well have disposed of respondent's First Amendment of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a sounding in the First Amendment. Petitioners do not press this argument, however, so we assume, without deciding, that respondent's First Amendment is actionable under Bivens. In the limited settings where Bivens does apply, the implied cause of action is the "federal analog to suits brought against state officials under Rev. Stat. 42 U.S.C." n. 2, Cf. 143 L. Ed. 2d Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 ("[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior"). See ; see also ; 5-6, Because vicarious liability is inapplicable to Bivens and suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution. The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, ; Under extant precedent purposeful discrimination requires more than "intent as volition or intent as awareness of consequences." Personnel Administrator of It instead involves a decisionmaker's undertaking a course of action "`because of,' not merely `in spite of,' [the action's] adverse effects upon an identifiable group." It follows that, to state a based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that * petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin. Respondent disagrees. He argues that, under a theory of "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." Iqbal Brief 45-46. That is to say, respondent believes a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution. We reject this argument. Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a suit or a Bivens action—where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. IV A We turn to respondent's complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the showing that the pleader is entitled to relief." As the Court held in the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. ). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a to relief that is plausible on its face." A has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" (brackets omitted). Two working principles underlie our decision in First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we *1950 "are not bound to accept as true a legal conclusion couched as a factual allegation" ). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible for relief survives a motion to dismiss. Determining whether a complaint states a plausible for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common 490 F.3d, 57-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in illustrates the two-pronged approach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and to forestall competitive entry, in violation of the Sherman Act, 15 U.S.C. 1. Recognizing that 1 enjoins only anticompetitive conduct "effected by a contract, combination, or conspiracy," Copperweld the plaintiffs in flatly pleaded that the defendants "ha[d] entered into a contract, combination or conspiracy to prevent competitive entry. and ha[d] agreed not to compete with one another." 550 U.S., at 5, The complaint also alleged that the defendants' "parallel course of conduct to prevent competition" and inflate prices was indicative of the unlawful agreement alleged. The Court held the plaintiffs' complaint deficient under Rule 8. In doing so it first noted that the plaintiffs' assertion of an unlawful agreement was a "`legal conclusion'" and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a for relief and been entitled to proceed perforce. The Court next addressed the "nub" of the plaintiffs' complaint—the well-pleaded, nonconclusory factual allegation of parallel behavior—to determine whether it gave rise to a "plausible suggestion of conspiracy." at 565-5, Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior. Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs' complaint must be dismissed. B Under 's construction of Rule 8, we conclude that respondent's complaint *19 has not "nudged [his] s" of invidious discrimination "across the line from conceivable to plausible." We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [him]" to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint App. to Pet. for Cert. 173a-174a. The complaint alleges that Ashcroft was the "principal architect" of this invidious policy, 57a, and that Mueller was "instrumental" in adopting and executing it, 57a. These bare assertions, much like the pleading of conspiracy in amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination 550 U.S., namely, that petitioners adopted a policy "`because of,' not merely `in spite of,' its adverse effects upon an identifiable group." 442 U.S., at As such, the allegations are conclusory and not entitled to be assumed true. -555, To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in rejected the plaintiffs' express allegation of a "`contract, combination or conspiracy to prevent competitive entry,'" at 5, because it thought that too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men as part of its investigation of the events of September 11." Complaint App. to Pet. for Cert. 164a. It further s that "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were `cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11," 68a. Taken as true, these allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that "obvious alternative explanation" for the arrests, and the purposeful, invidious discrimination respondent *1952 asks us to infer, discrimination is not a plausible conclusion. But even if the complaint's well-pleaded facts give rise to a plausible inference that respondent's arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent's complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent's constitutional s against petitioners rest solely on their ostensible "policy of holding post-September-11th detainees" in the ADMAX SHU once they were categorized as "of high interest." Complaint App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-11 detainees as "of high interest" because of their race, religion, or national origin. This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of "of high interest" for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving "restrictive conditions of confinement" for post-September-11 detainees until they were "`cleared' by the FBI." Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners' constitutional obligations. He would need to allege more by way of factual content to "nudg[e]" his of purposeful discrimination "across the line from conceivable to plausible." 550 U.S., To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in and the pleadings at issue here. In the complaint alleged general wrongdoing that extended over a period of years, at 5, whereas here the complaint alleges discrete wrongs—for instance, beatings—by lower level Government actors. The allegations here, if true, and if condoned by petitioners, could be the basis for some inference of wrongful intent on petitioners' part. Despite these distinctions, respondent's pleadings do not suffice to state a Unlike in where the doctrine of respondeat superior could bind the corporate defendant, here, as we have noted, petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic. Yet respondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8. It is important to note, however, that we express no opinion concerning the sufficiency of respondent's complaint against the defendants who are not before us. Respondent's account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent's complaint does not entitle him to relief from petitioners. C Respondent offers three arguments that bear on our disposition of his case, but none is persuasive. *1953 1 Respondent first says that our decision in should be limited to pleadings made in the context of an antitrust dispute. Iqbal Brief 37-38. This argument is not supported by and is incompatible with the Federal Rules of Civil Procedure. Though determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. That Rule in turn governs the pleading standard "in all civil actions and proceedings in the United States district courts." Fed. Rule Civ. Proc. 1. Our decision in expounded the pleading standard for "all civil actions," ib and it applies to antitrust and discrimination suits alike. See 550 U.S., -556, and n. 3, 2 Respondent next implies that our construction of Rule 8 should be tempered where, as here, the Court of Appeals has "instructed the district court to cabin discovery in such a way as to preserve" petitioners' defense of qualified immunity "as much as possible in anticipation of a summary judgment motion." Iqbal Brief 27. We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. ("It is no answer to say that a just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side" (internal quotation marks and citation omitted)). Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity. The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including "avoidance of disruptive discovery." There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. The costs of diversion are only magnified when Government officials are charged with responding to, as Judge Cabranes aptly put it, "a national and international security emergency unprecedented in the history of the American Republic." 490 F.3d, 79. It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery. We decline respondent's invitation to relax the pleading requirements on the *1954 ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties. Because respondent's complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. 3 Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners' discriminatory intent "generally," which he equates with a conclusory allegation. Iqbal Brief 32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it s that petitioners discriminated against him "on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Complaint App. to Pet. for Cert. 172a-173a. Were we required to accept this allegation as true, respondent's complaint would survive petitioners' motion to dismiss. But the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context. It is true that Rule 9(b) requires particularity when pleading "fraud or mistake," while allowing "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally." But "generally" is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and Procedure 1301, p. 291 (3d ed. 2004) ("[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general `short and plain statement of the ' mandate in Rule 8(a). should control the second sentence of Rule 9(b)"). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label "general allegation," and expect his complaint to survive a motion to dismiss. V We hold that respondent's complaint fails to plead sufficient facts to state a for purposeful and unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice White

majority

Alabama v. White

https://www.courtlistener.com/opinion/112454/alabama-v-white/

https://www.courtlistener.com/api/rest/v3/clusters/112454/

1989-104

Based on an anonymous telephone tip, police stopped respondent's vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent *327 police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. We hold that it did. On April 22, 1987, at approximately 3 p.m., Corporal B. H. Davis of the Montgomery Police Department received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey's Motel. When the vehicle reached the Mobile Highway, on which Dobey's Motel is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p. m., just short of Dobey's Motel. Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attache case in the car, and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attache case and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent's purse. Respondent was charged in Montgomery County Court with possession of marijuana and possession of cocaine. The trial court denied respondent's motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal *328 the denial of her suppression motion. The Court of Criminal Appeals of Alabama held that the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U.S. 1 (1968), to justify the investigatory stop of respondent's car, and that the marijuana and cocaine were fruits of respondent's unconstitutional detention. The court concluded that respondent's motion to dismiss should have been granted and reversed her conviction. 550 So. 2d 1074 (1989). The Supreme Court of Alabama denied the State's petition for writ of certiorari, two justices dissenting. 550 So. 2d 1081 (1989). Because of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop, we granted the State's petition for certiorari, 493 U.S. 1042 (1990). We now reverse. Adams v. Williams, 407 U.S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient "indicia of reliability" to justify a forcible stop. 407 U.S., at 147. We did not address the issue of anonymous tips in Adams, except to say that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip," id., at 146. Illinois v. Gates, 462 U.S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), in favor of a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli — an informant's "veracity," "reliability," and "basis of knowledge" — remain "highly relevant in determining the value of his report." 462 U.S., at 230. These factors are also relevant in the reasonable-suspicion context, although allowance *329 must be made in applying them for the lesser showing required to meet that standard. The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." Id., at 237. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: "[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller's] predictions regarding [Vanessa White's] criminal activities." 462 U.S., at 227. By requiring "[s]omething more," as Gates did, ibid., we merely apply what we said in Adams: "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized," 407 U.S., at 147. Simply put, a tip such as this one, standing alone, would not " `warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Terry, supra, at 22, quoting Carroll v. United States, 267 U.S. 132, 162 (1925). As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United States v. Sokolow, 490 U.S. 1, 7 (1989): "The officer [making a Terry stop] . . . must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' [Terry, 392 U. S.,] at 27. The Fourth Amendment requires `some minimal *330 level of objective justification' for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means `a fair probability that contraband or evidence of a crime will be found,' [Gates, 462 U. S., at 238], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause." Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S., at 147. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the "totality of the circumstances — the whole picture," United States v. Cortez, 449 U.S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference *331 being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment. It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id., at 5-6. Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent's departure from the building was within the time frame predicted by the caller. As for the caller's prediction of respondent's destination, it is true that the officers stopped her just short of Dobey's Motel and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobey's Motel, 550 So. 2d, at 1075, Tr. of Oral Arg. 24, but nevertheless involved several turns, App. 7, Tr. of Oral Arg. 24, we think respondent's destination was significantly corroborated. The Court's opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U.S., at 244. Thus, it is not *332 unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller. We think it also important that, as in Gates, "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Id., at 245. The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have "predicted" that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. See ibid. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop. Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent's car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with this opinion. So ordered.

Based on an anonymous telephone tip, police stopped respondent's vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent *32 police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory We hold that it did. On April 22, 198, at approximately 3 p.m., Corporal B. H. Davis of the Montgomery Police Department received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's and that she would be in possession of about an ounce of cocaine inside a brown attache case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey's When the vehicle reached the Mobile Highway, on which Dobey's is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p. m., just short of Dobey's Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attache case in the car, and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attache case and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent's purse. Respondent was charged in Montgomery County Court with possession of marijuana and possession of cocaine. The trial court denied respondent's motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal *328 the denial of her suppression motion. The Court of Criminal Appeals of Alabama held that the officers did not have the reasonable suspicion necessary under to justify the investigatory stop of respondent's car, and that the marijuana and cocaine were fruits of respondent's unconstitutional detention. The court concluded that respondent's motion to dismiss should have been granted and reversed her conviction. The Supreme Court of Alabama denied the State's petition for writ of certiorari, two justices dissenting. Because of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop, we granted the State's petition for certiorari, We now reverse. sustained a stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient "indicia of reliability" to justify a forcible We did not address the issue of anonymous tips in Adams, except to say that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip," dealt with an anonymous tip in the probable-cause context. The Court there abandoned the "two-pronged test" of and in favor of a "totality of the circumstances" approach to determining whether an informant's tip establishes probable cause. made clear, however, that those factors that had been considered critical under Aguilar and Spinelli — an informant's "veracity," "reliability," and "basis of knowledge" — remain "highly relevant in determining the value of his report." These factors are also relevant in the reasonable-suspicion context, although allowance *329 must be made in applying them for the lesser showing required to meet that standard. The opinion in recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a But the tip in was not an exception to the general rule, and the anonymous tip in this case is like the one in : "[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller's] predictions regarding [Vanessa White's] criminal activities." By requiring "[s]omething more," as did, ib we merely apply what we said in Adams: "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized," Simply put, a tip such as this one, standing alone, would not " `warrant a man of reasonable caution in the belief' that [a stop] was appropriate." quoting As there was in however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United : "The officer [making a stop] must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' [, 392 U. S.,] at 2. The Fourth Amendment requires `some minimal *330 level of objective justification' for making the 21 That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means `a fair probability that contraband or evidence of a crime will be found,' [, ], and the level of suspicion required for a stop is obviously less demanding than for probable cause." Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the "totality of the circumstances — the whole picture," United 41 that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference *331 being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment. It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent's departure from the building was within the time frame predicted by the caller. As for the caller's prediction of respondent's destination, it is true that the officers stopped her just short of Dobey's and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobey's 550 So. 2d, at 105, Tr. of Oral Arg. 24, but nevertheless involved several turns, App. Tr. of Oral Arg. 24, we think respondent's destination was significantly corroborated. The Court's opinion in gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal Thus, it is not *332 unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller. We think it also important that, as in "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have "predicted" that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. See When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent's car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with this opinion. So ordered.

Justice Alito

majority

RJR Nabisco, Inc. v. European Community

https://www.courtlistener.com/opinion/3214884/rjr-nabisco-inc-v-european-community/

https://www.courtlistener.com/api/rest/v3/clusters/3214884/

2015-050

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. §§1961–1968, created four new criminal offenses involving the activities of organized criminal groups in relation to an enterprise. §§1962(a)– (d). RICO also created a new civil cause of action for “[a]ny person injured in his business or property by reason of a violation” of those prohibitions. §1964(c). We are asked to decide whether RICO applies extraterritorially— that is, to events occurring and injuries suffered outside the United States. I A RICO is founded on the concept of racketeering activity. The statute defines “racketeering activity” to encompass dozens of state and federal offenses, known in RICO par­ lance as predicates. These predicates include any act “indictable” under specified federal statutes, §§1961(1)(B)– (C), (E)–(G), as well as certain crimes “chargeable” under state law, §1961(1)(A), and any offense involving bank­ ruptcy or securities fraud or drug-related activity that is 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court “punishable” under federal law, §1961(1)(D). A predicate offense implicates RICO when it is part of a “pattern of racketeering activity”—a series of related predicates that together demonstrate the existence or threat of continued criminal activity. H. J. Inc. v. Northwestern Bell Tele- phone Co., 492 U.S. 229, 239 (1989); see §1961(5) (specify­ ing that a “pattern of racketeering activity” requires at least two predicates committed within 10 years of each other). RICO’s §1962 sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activ- ity may be used to infiltrate, control, or operate “a[n] en­ terprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” These prohibitions can be summarized as follows. Section 1962(a) makes it unlawful to invest income derived from a pattern of rack­ eteering activity in an enterprise. Section 1962(b) makes it unlawful to acquire or maintain an interest in an enter­ prise through a pattern of racketeering activity. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise’s affairs through a pattern of racketeering activity. Finally, §1962(d) makes it unlawful to conspire to violate any of the other three prohibitions.1 —————— 1 In full, 18 U.S. C. §1962 provides: “(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has partic­ ipated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, Cite as: 579 U. S. ____ (2016) 3 Opinion of the Court Violations of §1962 are subject to criminal penalties, §1963(a), and civil proceedings to enforce those prohibi­ tions may be brought by the Attorney General, §§1964(a)– (b). Separately, RICO creates a private civil cause of action that allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue in federal district court and recover treble damages, costs, and attorney’s fees. §1964(c).2 —————— the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. “(b) It shall be unlawful for any person through a pattern of racket­ eering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enter­ prise which is engaged in, or the activities of which affect, interstate or foreign commerce. “(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, inter­ state or foreign commerce, to conduct or participate, directly or indi- rectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” The attentive reader will notice that these prohibitions concern not only patterns of racketeering activity but also the collection of unlawful debt. As is typical in our RICO cases, we have no occasion here to address this aspect of the statute. 2 In full, §1964(c) provides: “Any person injured in his business or property by reason of a viola­ tion of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is crimi­ nally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final.” 4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court B This case arises from allegations that petitioners—RJR Nabisco and numerous related entities (collectively RJR)— participated in a global money-laundering scheme in association with various organized crime groups. Re­ spondents—the European Community and 26 of its mem­ ber states—first sued RJR in the Eastern District of New York in 2000, alleging that RJR had violated RICO. Over the past 16 years, the resulting litigation (spread over at least three separate actions, with this case the lone survi­ vor) has seen multiple complaints and multiple trips up and down the federal court system. See 2011 WL 843957, *1–*2 (EDNY, Mar. 8, 2011) (tracing the procedural his- tory through the District Court’s dismissal of the present complaint). In the interest of brevity, we confine our discussion to the operative complaint and its journey to this Court. Greatly simplified, the complaint alleges a scheme in which Colombian and Russian drug traffickers smuggled narcotics into Europe and sold the drugs for euros that— through a series of transactions involving black-market money brokers, cigarette importers, and wholesalers— were used to pay for large shipments of RJR cigarettes into Europe. In other variations of this scheme, RJR allegedly dealt directly with drug traffickers and money launderers in South America and sold cigarettes to Iraq in violation of international sanctions. RJR is also said to have acquired Brown & Williamson Tobacco Corporation for the purpose of expanding these illegal activities. The complaint alleges that RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organiza­ tions, mail fraud, wire fraud, and violations of the Travel Act. RJR, in concert with the other participants in the scheme, allegedly formed an association in fact that was engaged in interstate and foreign commerce, and therefore Cite as: 579 U. S. ____ (2016) 5 Opinion of the Court constituted a RICO enterprise that the complaint dubs the “RJR Money-Laundering Enterprise.” App. to Pet. for Cert. 238a, Complaint ¶158; see §1961(4) (defining an enterprise to include “any union or group of individuals associated in fact although not a legal entity”). Putting these pieces together, the complaint alleges that RJR violated each of RICO’s prohibitions. RJR allegedly used income derived from the pattern of racketeering to invest in, acquire an interest in, and operate the RJR Money-Laundering Enterprise in violation of §1962(a); acquired and maintained control of the enterprise through the pattern of racketeering in violation of §1962(b); oper­ ated the enterprise through the pattern of racketeering in violation of §1962(c); and conspired with other partici­ pants in the scheme in violation of §1962(d).3 These viola­ tions allegedly harmed respondents in various ways, including through competitive harm to their state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs.4 RJR moved to dismiss the complaint, arguing that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The District Court agreed and dismissed the RICO claims as imper­ missibly extraterritorial. 2011 WL 843957, at *7. —————— 3 The complaint also alleges that RJR committed a variety of state- law torts. Those claims are not before us. 4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F.3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U.S. 1092 (2006). It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U.S. 349, 355, n. 1 (2005). 6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court The Second Circuit reinstated the RICO claims. It concluded that, “with respect to a number of offenses that constitute predicates for RICO liability and are alleged in this case, Congress has clearly manifested an intent that they apply extraterritorially.” 764 F.3d 129, 133 (2014). “By incorporating these statutes into RICO as predicate racketeering acts,” the court reasoned, “Congress has clearly communicated its intention that RICO apply to extraterritorial conduct to the extent that extraterritorial violations of these statutes serve as the basis for RICO liability.” Id., at 137. Turning to the predicates alleged in the complaint, the Second Circuit found that they passed muster. The court concluded that the money laundering and material support of terrorism statutes expressly apply extraterritorially in the circumstances alleged in the complaint. Id., at 139–140. The court held that the mail fraud, wire fraud, and Travel Act statutes do not apply extraterritorially. Id., at 141. But it concluded that the complaint states domestic violations of those predicates because it “allege[s] conduct in the United States that satisfies every essential element” of those offenses. Id., at 142. RJR sought rehearing, arguing (among other things) that RICO’s civil cause of action requires a plaintiff to allege a domestic injury, even if a domestic pattern of racketeering or a domestic enterprise is not necessary to make out a violation of RICO’s substantive prohibitions. The panel denied rehearing and issued a supplemental opinion holding that RICO does not require a domestic injury. 764 F.3d 149 (CA2 2014) (per curiam). If a for­ eign injury was caused by the violation of a predicate statute that applies extraterritorially, the court concluded, then the plaintiff may seek recovery for that injury under RICO. Id., at 151. The Second Circuit later denied re­ hearing en banc, with five judges dissenting. 783 F.3d 123 (2015). Cite as: 579 U. S. ____ (2016) 7 Opinion of the Court The lower courts have come to different conclusions regarding RICO’s extraterritorial application. Compare 764 F.3d 129 (case below) (holding that RICO may apply extraterritorially) with United States v. Chao Fan Xu, 706 F.3d 965, 974–975 (CA9 2013) (holding that RICO does not apply extraterritorially; collecting cases). Because of this conflict and the importance of the issue, we granted certiorari. 576 U. S. ___ (2015). II The question of RICO’s extraterritorial application really involves two questions. First, do RICO’s substan­ tive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? Second, does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? We consider each of these questions in turn. To guide our inquiry, we begin by reviewing the law of extraterritoriality. It is a basic premise of our legal system that, in general, “United States law governs domestically but does not rule the world.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007). This principle finds expression in a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010). The ques­ tion is not whether we think “Congress would have wanted” a statute to apply to foreign conduct “if it had thought of the situation before the court,” but whether Congress has affirmatively and unmistakably instructed that the statute will do so. Id., at 261. “When a statute gives no clear indication of an extraterritorial application, it has none.” Id., at 255. There are several reasons for this presumption. Most notably, it serves to avoid the international discord that 8 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court can result when U. S. law is applied to conduct in foreign countries. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___–___ (2013) (slip op., at 4–5); EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (Ar- amco); Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 147 (1957). But it also reflects the more prosaic “commonsense notion that Congress generally legislates with domestic concerns in mind.” Smith v. United States, 507 U.S. 197, 204, n. 5 (1993). We therefore apply the presumption across the board, “regardless of whether there is a risk of conflict between the American statute and a foreign law.” Morrison, supra, at 255. Twice in the past six years we have considered whether a federal statute applies extraterritorially. In Morrison, we addressed the question whether §10(b) of the Securities Exchange Act of 1934 applies to misrepresentations made in connection with the purchase or sale of securities traded only on foreign exchanges. We first examined whether §10(b) gives any clear indication of extraterritorial effect, and found that it does not. 561 U.S., at 262–265. We then engaged in a separate inquiry to determine whether the complaint before us involved a permissible domestic application of §10(b) because it alleged that some of the relevant misrepresentations were made in the United States. At this second step, we considered the “ ‘focus’ of congressional concern,” asking whether §10(b)’s focus is “the place where the deception originated” or rather “pur­ chases and sale of securities in the United States.” Id., at 266. We concluded that the statute’s focus is on domestic securities transactions, and we therefore held that the statute does not apply to frauds in connection with foreign securities transactions, even if those frauds involve do­ mestic misrepresentations. In Kiobel, we considered whether the Alien Tort Statute (ATS) confers federal-court jurisdiction over causes of action alleging international-law violations committed Cite as: 579 U. S. ____ (2016) 9 Opinion of the Court overseas. We acknowledged that the presumption against extraterritoriality is “typically” applied to statutes “regu­ lating conduct,” but we concluded that the principles supporting the presumption should “similarly constrain courts considering causes of action that may be brought under the ATS.” 569 U. S., at ___ (slip op., at 5). We applied the presumption and held that the ATS lacks any clear indication that it extended to the foreign violations alleged in that case. Id., at ___–___ (slip op., at 7–14). Because “all the relevant conduct” regarding those viola­ tions “took place outside the United States,” id., at ___ (slip op., at 14), we did not need to determine, as we did in Morrison, the statute’s “focus.” Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritori­ ally. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extrater­ ritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extrater­ ritorial application regardless of any other conduct that occurred in U. S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding. But we addressed this issue in Morrison, explaining that it was necessary to consider §10(b)’s “focus” only because we found that the statute 10 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court does not apply extraterritorially: “If §10(b) did apply abroad, we would not need to determine which transna­ tional frauds it applied to; it would apply to all of them (barring some other limitation).” 561 U.S., at 267, n. 9. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute’s foreign application, and not on the statute’s “focus.”5 III With these guiding principles in mind, we first consider whether RICO’s substantive prohibitions in §1962 may apply to foreign conduct. Unlike in Morrison and Kiobel, we find that the presumption against extraterritoriality has been rebutted—but only with respect to certain appli­ cations of the statute. A The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when “the defendant is a United States person,” to offenses that “tak[e] place outside the United States.” 18 U.S. C. §1957(d)(2). Other examples include the prohibitions against the assassination of Gov­ ernment officials, §351(i) (“There is extraterritorial juris­ diction over the conduct prohibited by this section”); §1751(k) (same), and the prohibition against hostage taking, which applies to conduct that “occurred outside the United States” if either the hostage or the offender is a —————— 5 Because a finding of extraterritoriality at step one will obviate step two’s “focus” inquiry, it will usually be preferable for courts to proceed in the sequence that we have set forth. But we do not mean to preclude courts from starting at step two in appropriate cases. Cf. Pearson v. Callahan, 555 U.S. 223, 236–243 (2009). Cite as: 579 U. S. ____ (2016) 11 Opinion of the Court U. S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U. S. Government, §1203(b). At least one predicate— the prohibition against “kill[ing] a national of the United States, while such national is outside the United States”— applies only to conduct occurring outside the United States. §2332(a). We agree with the Second Circuit that Congress’s incor­ poration of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that §1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. Put another way, a pattern of racketeering activity may include or consist of offenses committed abroad in violation of a predicate statute for which the presumption against extraterritorial­ ity has been overcome. To give a simple (albeit grim) example, a violation of §1962 could be premised on a pattern of killings of Americans abroad in violation of §2332(a)—a predicate that all agree applies extraterritori­ ally—whether or not any domestic predicates are also alleged.6 We emphasize the important limitation that foreign conduct must violate “a predicate statute that manifests an unmistakable congressional intent to apply extraterri­ torially.” 764 F.3d, at 136. Although a number of RICO predicates have extraterritorial effect, many do not. The inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct. This is apparent for two reasons. First, “when a statute pro­ vides for some extraterritorial application, the presump­ tion against extraterritoriality operates to limit that —————— 6 The foreign killings would, of course, still have to satisfy the relat­ edness and continuity requirements of RICO’s pattern element. See H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989). 12 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court provision to its terms.” Morrison, 561 U.S., at 265. Second, RICO defines as racketeering activity only acts that are “indictable” (or, what amounts to the same thing, “charge­ able” or “punishable”) under one of the statutes identified in §1961(1). If a particular statute does not apply extra- territorially, then conduct committed abroad is not “in­ dictable” under that statute and so cannot qualify as a predicate under RICO’s plain terms. RJR resists the conclusion that RICO’s incorporation of extraterritorial predicates gives RICO commensurate extraterritorial effect. It points out that “RICO itself ” does not refer to extraterritorial application; only the underlying predicate statutes do. Brief for Petitioners 42. RJR thus argues that Congress could have intended to capture only domestic applications of extraterritorial predicates, and that any predicates that apply only abroad could have been “incorporated . . . solely for when such offenses are part of a broader pattern whose overall locus is domestic.” Id., at 43. The presumption against extraterritoriality does not require us to adopt such a constricted interpretation. While the presumption can be overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential. “Assuredly context can be consulted as well.” Morrison, supra, at 265. Con­ text is dispositive here. Congress has not expressly said that §1962(c) applies to patterns of racketeering activity in foreign countries, but it has defined “racketeering activ­ ity”—and by extension a “pattern of racketeering activ­ ity”—to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect. This unique structure makes RICO the rare statute that clearly evidences extra­ territorial effect despite lacking an express statement of Cite as: 579 U. S. ____ (2016) 13 Opinion of the Court extraterritoriality. We therefore conclude that RICO applies to some for­ eign racketeering activity. A violation of §1962 may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extrater­ ritorial. This fact is determinative as to §1962(b) and §1962(c), both of which prohibit the employment of a pattern of racketeering. Although they differ as to the end for which the pattern is employed—to acquire or maintain control of an enterprise under subsection (b), or to conduct an enterprise’s affairs under subsection (c)—this differ­ ence is immaterial for extraterritoriality purposes. Section 1962(a) presents a thornier question. Unlike subsections (b) and (c), subsection (a) targets certain uses of income derived from a pattern of racketeering, not the use of the pattern itself. Cf. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461–462 (2006). While we have no difficulty concluding that this prohibition applies to in­ come derived from foreign patterns of racketeering (within the limits we have discussed), arguably §1962(a) extends only to domestic uses of the income. The Second Circuit did not decide this question because it found that respond­ ents have alleged “a domestic investment of racketeering proceeds in the form of RJR’s merger in the United States with Brown & Williamson and investments in other U. S. operations.” 764 F.3d, at 138, n. 5. RJR does not dispute the basic soundness of the Second Circuit’s reasoning, but it does contest the court’s reading of the complaint. See Brief for Petitioners 57–58. Because the parties have not focused on this issue, and because it makes no difference to our resolution of this case, see infra, at 27, we assume without deciding that respondents have pleaded a domes­ tic investment of racketeering income in violation of §1962(a). Finally, although respondents’ complaint alleges a 14 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court violation of RICO’s conspiracy provision, §1962(d), the parties’ briefs do not address whether this provision should be treated differently from the provision (§1962(a), (b), or (c)) that a defendant allegedly conspired to violate. We therefore decline to reach this issue, and assume without deciding that §1962(d)’s extraterritoriality tracks that of the provision underlying the alleged conspiracy. B RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises. Invoking Morrison’s discussion of the Exchange Act’s “focus,” RJR says that the “focus” of RICO is the enterprise being corrupted—not the pattern of racketeering—and that RICO’s enterprise element gives no clear indication of extraterritorial effect. Accordingly, RJR reasons, RICO requires a domestic enterprise. This argument misunderstands Morrison. As explained above, supra, at 9–10, only at the second step of the in­ quiry do we consider a statute’s “focus.” Here, however, there is a clear indication at step one that RICO applies extraterritorially. We therefore do not proceed to the “focus” step. The Morrison Court’s discussion of the statu­ tory “focus” made this clear, stating that “[i]f §10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).” 561 U.S., at 267, n. 9. The same is true here. RICO—or at least §§1962(b) and (c)—applies abroad, and so we do not need to deter­ mine which transnational (or wholly foreign) patterns of racketeering it applies to; it applies to all of them, regard­ less of whether they are connected to a “foreign” or “do­ mestic” enterprise. This rule is, of course, subject to the important limitation that RICO covers foreign predicate offenses only to the extent that the underlying predicate statutes are extraterritorial. But within those bounds, the Cite as: 579 U. S. ____ (2016) 15 Opinion of the Court location of the affected enterprise does not impose an independent constraint. It is easy to see why Congress did not limit RICO to domestic enterprises. A domestic enterprise requirement would lead to difficult line-drawing problems and counter­ intuitive results. It would exclude from RICO’s reach foreign enterprises—whether corporations, crime rings, other associations, or individuals—that operate within the United States. Imagine, for example, that a foreign corpo­ ration has operations in the United States and that one of the corporation’s managers in the United States conducts its U. S. affairs through a pattern of extortion and mail fraud. Such domestic conduct would seem to fall well within what Congress meant to capture in enacting RICO. Congress, after all, does not usually exempt foreigners acting in the United States from U. S. legal requirements. See 764 F.3d, at 138 (“Surely the presumption against extraterritorial application of United States laws does not command giving foreigners carte blanche to violate the laws of the United States in the United States”). Yet RJR’s theory would insulate this scheme from RICO liabil­ ity—both civil and criminal—because the enterprise at issue is a foreign, not domestic, corporation. Seeking to avoid this result, RJR offers that any “ ‘emis­ saries’ ” a foreign enterprise sends to the United States— such as our hypothetical U. S.-based corporate manager— could be carved off and considered a “distinct domestic enterprise” under an association-in-fact theory. Brief for Petitioners 40. RJR’s willingness to gerrymander the enterprise to get around its proposed domestic enterprise requirement is telling. It suggests that RJR is not really concerned about whether an enterprise is foreign or do­ mestic, but whether the relevant conduct occurred here or abroad. And if that is the concern, then it is the pattern of racketeering activity that matters, not the enterprise. Even spotting RJR its “domestic emissary” theory, this 16 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court approach would lead to strange gaps in RICO’s coverage. If a foreign enterprise sent only a single “emissary” to engage in racketeering in the United States, there could be no RICO liability because a single person cannot be both the RICO enterprise and the RICO defendant. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 162 (2001). RJR also offers no satisfactory way of determining whether an enterprise is foreign or domestic. Like the District Court, RJR maintains that courts can apply the “nerve center” test that we use to determine a corpora­ tion’s principal place of business for purposes of federal diversity jurisdiction. See Hertz Corp. v. Friend, 559 U.S. 77 (2010); 28 U.S. C. §1332(c)(1); 2011 WL 843957, at *5– *6. But this test quickly becomes meaningless if, as RJR suggests, a corporation with a foreign nerve center can, if necessary, be pruned into an association-in-fact enterprise with a domestic nerve center. The nerve center test, developed with ordinary corporate command structures in mind, is also ill suited to govern RICO association-in-fact enterprises, which “need not have a hierarchical structure or a ‘chain of command.’ ” Boyle v. United States, 556 U.S. 938, 948 (2009). These difficulties are largely avoided if, as we conclude today, RICO’s extraterritorial effect is pegged to the extraterritoriality judgments Congress has made in the predicate statutes, often by providing precise instructions as to when those statutes apply to foreign conduct. The practical problems we have identified with RJR’s proposed domestic enterprise requirement are not, by themselves, cause to reject it. Our point in reciting these troubling consequences of RJR’s theory is simply to rein­ force our conclusion, based on RICO’s text and context, that Congress intended the prohibitions in 18 U.S. C. §§1962(b) and (c) to apply extraterritorially in tandem with the underlying predicates, without regard to the Cite as: 579 U. S. ____ (2016) 17 Opinion of the Court locus of the enterprise. Although we find that RICO imposes no domestic enter­ prise requirement, this does not mean that every foreign enterprise will qualify. Each of RICO’s substantive prohi­ bitions requires proof of an enterprise that is “engaged in, or the activities of which affect, interstate or foreign com­ merce.” §§1962(a), (b), (c). We do not take this reference to “foreign commerce” to mean literally all commerce occurring abroad. Rather, a RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States—e.g., commerce between the United States and a foreign country. Enterprises whose activities lack that anchor to U. S. commerce cannot sus­ tain a RICO violation. C Applying these principles, we agree with the Second Circuit that the complaint does not allege impermissibly extraterritorial violations of §§1962(b) and (c).7 The alleged pattern of racketeering activity consists of five basic predicates: (1) money laundering, (2) material support of foreign terrorist organizations, (3) mail fraud, (4) wire fraud, and (5) violations of the Travel Act. The Second Circuit observed that the relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application in certain circumstances, and it concluded that those circumstances are alleged to be present here. 764 F.3d, at 139–140. The court found that the fraud statutes and the Travel Act do not contain the clear indication needed to overcome the presumption against extraterritoriality. But it held that the complaint alleges domestic violations of those statutes because it “allege[s] conduct in the United States that satisfies every essential element of the mail —————— 7 As to §§1962(a) and (d), see supra, at 13–14. 18 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court fraud, wire fraud, and Travel Act claims.” Id., at 142. RJR does not dispute these characterizations of the alleged predicates. We therefore assume without deciding that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritori­ ally. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies, and its activities depend on sales of RJR’s cigarettes con­ ducted through “the U. S. mails and wires,” among other things. App. to Pet. for Cert. 186a, Complaint ¶96. On these premises, respondents’ allegations that RJR violated §§1962(b) and (c) do not involve an impermissibly extra­ territorial application of RICO.8 IV We now turn to RICO’s private right of action, on which respondents’ lawsuit rests. Section 1964(c) allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue for treble damages, costs, and attorney’s fees. Irrespective of any extraterritorial application of §1962, we conclude that §1964(c) does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property. A The Second Circuit thought that the presumption against extraterritoriality did not apply to §1964(c) inde­ pendently of its application to §1962, reasoning that the —————— 8 We stress that we are addressing only the extraterritoriality ques­ tion. We have not been asked to decide, and therefore do not decide, whether the complaint satisfies any other requirements of RICO, or whether the complaint in fact makes out violations of the relevant predicate statutes. Cite as: 579 U. S. ____ (2016) 19 Opinion of the Court presumption “is primarily concerned with the question of what conduct falls within a statute’s purview.” 764 F.3d, at 151. We rejected that view in Kiobel, holding that the presumption “constrain[s] courts considering causes of action” under the ATS, a “ ‘strictly jurisdictional’ ” statute that “does not directly regulate conduct or afford relief.” 569 U. S., at ___ (slip op., at 5). We reached this conclu­ sion even though the underlying substantive law consisted of well-established norms of international law, which by definition apply beyond this country’s borders. See id., at ___–___ (slip op., at 5–7). The same logic requires that we separately apply the presumption against extraterritoriality to RICO’s cause of action despite our conclusion that the presumption has been overcome with respect to RICO’s substantive prohibi­ tions. “The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion.” Sosa v. Alvarez- Machain, 542 U.S. 692, 727 (2004). Thus, as we have observed in other contexts, providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U. S. substantive law to that foreign conduct. See, e.g., Kiobel, supra, at ___ (slip op., at 6) (“Each of th[e] decisions” involved in defining a cause of action based on “conduct within the territory of another sovereign” “carries with it significant foreign policy implications”). Consider antitrust. In that context, we have observed that “[t]he application . . . of American private treble- damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy” in other nations, even when those nations agree with U. S. sub­ stantive law on such things as banning price fixing. F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 20 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court 155, 167 (2004). Numerous foreign countries—including some respondents in this case—advised us in Empagran that “to apply [U. S.] remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing consid­ erations that their own domestic antitrust laws embody.” Ibid.9 We received similar warnings in Morrison, where France, a respondent here, informed us that “most foreign countries proscribe securities fraud” but “have made very —————— 9 See Brief for Governments of Federal Republic of Germany et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 11 (identifying “controversial features of the U. S. legal system,” including treble damages, extensive discovery, jury trials, class actions, contingency fees, and punitive damages); id., at 15 (“Private plaintiffs rarely exercise the type of self- restraint or demonstrate the requisite sensitivity to the concerns of foreign governments that mark actions brought by the United States government”); Brief for United Kingdom et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 13 (“No other country has adopted the United States’ unique ‘bounty hunter’ approach that permits a private plaintiff to ‘recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.’ . . . Expanding the jurisdiction of this generous United States private claim system could skew enforce­ ment and increase international business risks. It makes United States courts the forum of choice without regard to whose laws are applied, where the injuries occurred or even if there is any connection to the court except the ability to get in personam jurisdiction over the defendants”); see also Brief for Government of Canada as Amicus Curiae, O. T. 2003, No. 03–724, p. 14 (“[T]he attractiveness of the [U. S.] treble damages remedy would supersede the national policy decision by Canada that civil recovery by Canadian citizens for injuries resulting from anti-competitive behavior in Canada should be limited to actual damages”). Empagran concerned not the presumption against extraterritoriality per se, but the related rule that we construe statutes to avoid unreasonable interference with other nations’ sovereign authority where possible. See F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U.S. 155, 164 (2004); see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814–815 (1993) (Scalia, J., dissenting) (dis­ cussing the two canons). As the foregoing discussion makes clear, considerations relevant to one rule are often relevant to the other. Cite as: 579 U. S. ____ (2016) 21 Opinion of the Court different choices with respect to the best way to implement that proscription,” such as “prefer[ring] ‘state actions, not private ones’ for the enforcement of law.” Brief for Repub­ lic of France as Amicus Curiae, O. T. 2009, No. 08–1191, p. 20; see id., at 23 (“Even when foreign countries permit private rights of action for securities fraud, they often have different schemes” for litigating them and “may approve of different measures of damages”). Allowing foreign investors to pursue private suits in the United States, we were told, “would upset that delicate balance and offend the sovereign interests of foreign nations.” Id., at 26. Allowing recovery for foreign injuries in a civil RICO action, including treble damages, presents the same dan­ ger of international friction. See Brief for United States as Amicus Curiae 31–34. This is not to say that friction would necessarily result in every case, or that Congress would violate international law by permitting such suits. It is to say only that there is a potential for international controversy that militates against recognizing foreign- injury claims without clear direction from Congress. Although “a risk of conflict between the American statute and a foreign law” is not a prerequisite for applying the presumption against extraterritoriality, Morrison, 561 U.S., at 255, where such a risk is evident, the need to enforce the presumption is at its apex. Respondents urge that concerns about international friction are inapplicable in this case because here the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but rather the foreign countries themselves. Brief for Respondents 52– 53. Respondents assure us that they “are satisfied that the[ir] complaint . . . comports with limitations on pre­ scriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Ibid. Even assuming that this is true, however, our interpretation of §1964(c)’s 22 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court injury requirement will necessarily govern suits by non­ governmental plaintiffs that are not so sensitive to foreign sovereigns’ dignity. We reject the notion that we should forgo the presumption against extraterritoriality and instead permit extraterritorial suits based on a case-by­ case inquiry that turns on or looks to the consent of the affected sovereign. See Morrison, supra, at 261 (“Rather than guess anew in each case, we apply the presumption in all cases”); cf. Empagran, 542 U.S., at 168. Respond­ ents suggest that we should be reluctant to permit a for­ eign corporation to be sued in the courts of this country for events occurring abroad if the nation of incorporation objects, but that we should discard those reservations when a foreign state sues a U. S. entity in this country under U. S. law—instead of in its own courts and under its own laws—for conduct committed on its own soil. We refuse to adopt this double standard. “After all, in the law, what is sauce for the goose is normally sauce for the gander.” Heffernan v. City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6). B Nothing in §1964(c) provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States. The statute provides a cause of action to “[a]ny person injured in his business or property” by a violation of §1962. §1964(c). The word “any” ordinarily connotes breadth, but it is insufficient to displace the presumption against extrater­ ritoriality. See Kiobel, 569 U. S., at ___ (slip op., at 7). The statute’s reference to injury to “business or property” also does not indicate extraterritorial application. If anything, by cabining RICO’s private cause of action to particular kinds of injury—excluding, for example, per­ sonal injuries—Congress signaled that the civil remedy is not coextensive with §1962’s substantive prohibitions. Cite as: 579 U. S. ____ (2016) 23 Opinion of the Court The rest of §1964(c) places a limit on RICO plaintiffs’ ability to rely on securities fraud to make out a claim. This too suggests that §1964(c) is narrower in its applica­ tion than §1962, and in any event does not support extra­ territoriality. The Second Circuit did not identify anything in §1964(c) that shows that the statute reaches foreign injuries. Instead, the court reasoned that §1964(c)’s extraterritorial effect flows directly from that of §1962. Citing our holding in Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479 (1985), that the “compensable injury” addressed by §1964(c) “nec­ essarily is the harm caused by predicate acts sufficiently related to constitute a pattern,” id., at 497, the Court of Appeals held that a RICO plaintiff may sue for foreign injury that was caused by the violation of a predicate statute that applies extraterritorially, just as a substan­ tive RICO violation may be based on extraterritorial pred­ icates. 764 F.3d, at 151. JUSTICE GINSBURG advances the same theory. See post, at 4–5 (opinion concurring in part and dissenting in part). This reasoning has surface ap­ peal, but it fails to appreciate that the presumption against extraterritoriality must be applied separately to both RICO’s substantive prohibitions and its private right of action. See supra, at 18–22. It is not enough to say that a private right of action must reach abroad because the underlying law governs conduct in foreign countries. Something more is needed, and here it is absent.10 Respondents contend that background legal principles allow them to sue for foreign injuries, invoking what they call the “ ‘traditional rule’ that ‘a plaintiff injured in a foreign country’ could bring suit ‘in American courts.’ ” —————— 10 Respondents note that Sedima itself involved an injury suffered by a Belgian corporation in Belgium. Brief for Respondents 45–46; see Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 483–484 (1985). Re­ spondents correctly do not contend that this fact is controlling here, as the Sedima Court did not address the foreign-injury issue. 24 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court Brief for Respondents 41 (quoting Sosa, 542 U.S., at 706– 707). But the rule respondents invoke actually provides that a court will ordinarily “apply foreign law to determine the tortfeasor’s liability” to “a plaintiff injured in a foreign country.” Id., at 706 (emphasis added). Respondents’ argument might have force if they sought to sue RJR for violations of their own laws and to invoke federal diversity jurisdiction as a basis for proceeding in U. S. courts. See U. S. Const., Art. III, §2, cl. 1 (“The judicial Power [of the United States] shall extend . . . to Controversies . . . be­ tween a State, or the Citizens thereof, and foreign States”); 28 U.S. C. §1332(a)(4) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . a foreign state . . . as plaintiff and citizens of a State or of different States”). The question here, however, is not “whether a federal court has jurisdic­ tion to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law” for injury suffered overseas. Kiobel, supra, at ___ (slip op., at 8) (emphasis added). As to that question, the relevant background principle is the pre­ sumption against extraterritoriality, not the “traditional rule” respondents cite. Respondents and JUSTICE GINSBURG point out that RICO’s private right of action was modeled after §4 of the Clayton Act, 15 U.S. C. §15; see Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 267–268 (1992), which we have held allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India, 434 U.S. 308, 314–315 (1978). It follows, respondents and JUSTICE GINSBURG contend, that §1964(c) likewise allows plaintiffs to sue for injuries suffered in foreign countries. We disagree. Al- though we have often looked to the Clayton Act for guid­ Cite as: 579 U. S. ____ (2016) 25 Opinion of the Court ance in construing §1964(c), we have not treated the two statutes as interchangeable. We have declined to trans­ plant features of the Clayton Act’s cause of action into the RICO context where doing so would be inappropriate. For example, in Sedima we held that a RICO plaintiff need not allege a special “racketeering injury,” rejecting a require­ ment that some lower courts had adopted by “[a]nalog[y]” to the “antitrust injury” required under the Clayton Act. 473 U.S., at 485, 495. There is good reason not to interpret §1964(c) to cover foreign injuries just because the Clayton Act does so. When we held in Pfizer that the Clayton Act allows recov­ ery for foreign injuries, we relied first and foremost on the fact that the Clayton Act’s definition of “person”—which in turn defines who may sue under that Act—“explicitly includes ‘corporations and associations existing under or authorized by . . . the laws of any foreign country.’ ” 434 U.S., at 313; see 15 U.S. C. §12.11 RICO lacks the lan­ guage that the Pfizer Court found critical. See 18 U.S. C. §1961(3).12 To the extent that the Pfizer Court cited other —————— 11 Pfizer most directly concerned whether a foreign government is a “person” that may be a Clayton Act plaintiff. But it is clear that the Court’s decision more broadly concerned recovery for foreign injuries, see 434 U.S., at 315 (expressing concern that “persons doing business both in this country and abroad might be tempted to enter into anti­ competitive conspiracies affecting American consumers in the expecta­ tion that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home”), as respondents themselves contend, see Brief for Respondents 44 (“[T]his Court clearly recognized in Pfizer that Section 4 extends to foreign injuries”). The Court also permitted an antitrust plaintiff to sue for foreign injuries in Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962), but the Court’s discussion in that case focused on the extraterritoriality of the underly­ ing antitrust prohibitions, not the Clayton Act’s private right of action, see id., at 704–705, and so sheds little light on the interpretive question now before us. 12 This does not mean that foreign plaintiffs may not sue under RICO. The point is that RICO does not include the explicit foreign-oriented 26 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court factors that might apply to §1964(c), they were not suffi­ cient in themselves to show that the provision has extra­ territorial effect. For example, the Pfizer Court, writing before we honed our extraterritoriality jurisprudence in Morrison and Kiobel, reasoned that Congress “[c]learly . . . did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country” because “the antitrust laws extend to trade ‘with foreign nations’ as well as among the several States of the Union.” 434 U.S., at 313–314. But we have emphatically rejected reliance on such language, holding that “ ‘even statutes . . . that expressly refer to “foreign commerce” do not apply abroad.’ ” Morrison, 561 U.S., at 262–263. This reasoning also fails to distinguish between extending substantive antitrust law to foreign conduct and extending a private right of action to foreign injuries, two separate issues that, as we have explained, raise distinct extraterritoriality problems. See supra, at 18–22. Finally, the Pfizer Court expressed concern that it would “defeat th[e] purposes” of the antitrust laws if a defendant could “escape full liability for his illegal actions.” 434 U.S., at 314. But this justifi­ cation was merely an attempt to “divin[e] what Congress would have wanted” had it considered the question of extraterritoriality—an approach we eschewed in Morrison. 561 U.S., at 261. Given all this, and in particular the fact that RICO lacks the language that Pfizer found integral to its decision, we decline to extend this aspect of our Clayton Act jurisprudence to RICO’s cause of action. Underscoring our reluctance to read §1964(c) as broadly as we have read the Clayton Act is Congress’s more recent decision to define precisely the antitrust laws’ extraterri­ torial effect and to exclude from their reach most conduct that “causes only foreign injury.” Empagran, 542 U. S., at —————— language that the Pfizer Court found to support foreign-injury suits under the Clayton Act. Cite as: 579 U. S. ____ (2016) 27 Opinion of the Court 158 (describing Foreign Trade Antitrust Improvements Act of 1982); see also id., at 169–171, 173–174 (discussing how the applicability of the antitrust laws to foreign inju­ ries may depend on whether suit is brought by the Gov­ ernment or by private plaintiffs). Although this later enactment obviously does not limit §1964(c)’s scope by its own force, it does counsel against importing into RICO those Clayton Act principles that are at odds with our current extraterritoriality doctrine. C Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. The applica­ tion of this rule in any given case will not always be self- evident, as disputes may arise as to whether a particular alleged injury is “foreign” or “domestic.” But we need not concern ourselves with that question in this case. As this case was being briefed before this Court, respondents filed a stipulation in the District Court waiving their damages claims for domestic injuries. The District Court accepted this waiver and dismissed those claims with prejudice. Respondents’ remaining RICO damages claims there­ fore rest entirely on injury suffered abroad and must be dismissed.13 —————— 13 In respondents’ letter notifying this Court of the waiver of their domestic-injury damages claims, respondents state that “[n]othing in the stipulation will affect respondents’ claims for equitable relief, including claims for equitable relief under state common law that are not at issue in this case before this Court.” Letter from David C. Frederick, Counsel for Respondents, to Scott S. Harris, Clerk of Court (Feb. 29, 2016). Although the letter mentions only state-law claims for equitable relief, Count 5 of respondents’ complaint seeks equitable relief under RICO. App. to Pet. for Cert. 260a–262a, Complaint ¶¶181– 188. This Court has never decided whether equitable relief is available to private RICO plaintiffs, the parties have not litigated that question here, and we express no opinion on the issue today. We note, however, 28 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court * * * The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. JUSTICE SOTOMAYOR took no part in the consideration or decision of this case. —————— that any claim for equitable relief under RICO based on foreign injuries is necessarily foreclosed by our holding that §1964(c)’s cause of action requires a domestic injury to business or property. It is unclear whether respondents intend to seek equitable relief under RICO based on domestic injuries, and it may prove unnecessary to decide whether §1964(c) (or respondents’ stipulation) permits such relief in light of respondents’ state-law claims. We leave it to the lower courts to determine, if necessary, the status and availability of any such claims. Cite as: 579 U. S. ____ (2016) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 15–138 _________________ RJR NABISCO, INC., ET AL., PETITIONERS v. EUROPEAN COMMUNITY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 20, 2016] JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in Parts I, II, and III and dissenting from Part IV and from the judgment. In enacting the Racketeer Influenced and Corrupt Or- ganizations Act (RICO), 18 U.S. C. §1961 et seq., Congress sought to provide a new tool to combat “organized crime and its economic roots.” Russello v. United States, 464 U.S. 16, 26 (1983). RICO accordingly proscribes various ways in which an “enterprise,” §1961(4), might be con- trolled, operated, or funded by a “pattern of racketeering activity,” §1961(1), (5). See §1962.1 RICO builds on predi- cate statutes, many of them applicable extraterritorially. App. to Brief for United States as Amicus Curiae 27a–33a. Congress not only armed the United States with authority to initiate criminal and civil proceedings to enforce RICO, §§1963, 1964(b), Congress also created in §1964(c) a pri- vate right of action for “[a]ny person injured in his busi- ness or property by reason of a violation of [RICO’s sub- —————— 1 The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. §1961 et seq., makes it unlawful “to . . . invest” in an enterprise income derived from a pattern of racketeering activity, §1962(a), “to acquire or maintain” an interest in an enterprise through a pattern of racketeering activity, §1962(b), “to conduct or participate . . . in the conduct” of an enterprise through a pattern of racketeering activity, §1962(c), or “to conspire” to violate any of those provisions, §1962(d). 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. stantive provision].” Invoking this right, respondents, the European Com- munity and 26 member states, filed suit against petition- ers, RJR Nabisco, Inc., and related entities. Alleging that petitioners orchestrated from their U. S. headquarters a complex money-laundering scheme in violation of RICO, respondents sought to recover for various injuries, includ- ing losses sustained by financial institutions and lost opportunities to collect duties. See ante, at 4–7. Denying respondents a remedy under RICO, the Court today reads into §1964(c) a domestic-injury requirement for suits by private plaintiffs nowhere indicated in the statute’s text. Correctly, the Court imposes no such restriction on the United States when it initiates a civil suit under §1964(b). Unsupported by RICO’s text, inconsistent with its pur- poses, and unnecessary to protect the comity interests the Court emphasizes, the domestic-injury requirement for private suits replaces Congress’ prescription with one of the Court’s own invention. Because the Court has no authority so to amend RICO, I dissent. I As the Court recounts, ante, at 7, “Congress ordinarily legislates with respect to domestic, not foreign, matters.” Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010). So recognizing, the Court employs a presump- tion that “ ‘legislation . . . is meant to apply only within the territorial jurisdiction of the United States.’ ” Ibid. (quot- ing EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (Aramco)). But when a statute demonstrates Con- gress’ “affirmative inten[t]” that the law should apply beyond the borders of the United States, as numerous RICO predicate statutes do, the presumption is rebutted, and the law applies extraterritorially to the extent Con- gress prescribed. See Morrison, 561 U.S., at 255 (quoting Aramco, 499 U.S., at 248). The presumption, in short, Cite as: 579 U. S. ____ (2016) 3 Opinion of GINSBURG, J. aims to distinguish instances in which Congress con- sciously designed a statute to reach beyond U. S. borders, from those in which nothing plainly signals that Congress directed extraterritorial application. In this case, the Court properly holds that Congress signaled its “affirmative inten[t],” Morrison, 561 U.S., at 255, that RICO, in many instances, should apply extrater- ritorially. See ante, at 10–18; App. to Brief for United States as Amicus Curiae 27a–33a. As the Court relates, see ante, at 10–14, Congress deliberately included within RICO’s compass predicate federal offenses that manifestly reach conduct occurring abroad. See, e.g., §§1956–1957 (money laundering); §2339B (material support to foreign terrorist organizations). Accordingly, the Court concludes, when the predicate crimes underlying invocation of §1962 thrust extraterritorially, so too does §1962. I agree with that conclusion. I disagree, however, that the private right of action authorized by §1964(c) requires a domestic injury to a person’s business or property and does not allow recovery for foreign injuries. One cannot extract such a limitation from the text of §1964(c), which affords a right of action to “[a]ny person injured in his business or property by reason of a violation of section 1962.” Section 1962, at least sub- sections (b) and (c), all agree, encompasses foreign inju- ries. How can §1964(c) exclude them when, by its express terms, §1964(c) is triggered by “a violation of section 1962”? To the extent RICO reaches injury abroad when the Government is the suitor pursuant to §1962 (specify- ing prohibited activities) and §1963 (criminal penalties) or §1964(b) (civil remedies), to that same extent, I would hold, RICO reaches extraterritorial injury when, pursuant to §1964(c), the suitor is a private plaintiff. 4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. II A I would not distinguish, as the Court does, between the extraterritorial compass of a private right of action and that of the underlying proscribed conduct. See ante, at 18–22, 23, 26. Instead, I would adhere to precedent ad- dressing RICO, linking, not separating, prohibited activi- ties and authorized remedies. See Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 495 (1985) (“If the defendant engages in a pattern of racketeering activity in a manner forbidden by [§1962], and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under §1964(c).”); ibid. (refusing to require a “dis- tinct ‘racketeering injury’ ” for private RICO actions under §1964(c) where §1962 imposes no such requirement).2 To reiterate, a §1964(c) right of action may be main- tained by “[a]ny person injured in his business or property by reason of a violation of section 1962” (emphasis added). “[I]ncorporating one statute . . . into another,” the Court has long understood, “serves to bring into the latter all that is fairly covered by the reference.” Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924). RICO’s private right of action, it cannot be gainsaid, expressly incorporates §1962, whose extraterritoriality, the Court recognizes, is coextensive with the underlying predicate offenses —————— 2 Insisting that the presumption against extraterritoriality should “apply to §1964(c) independently of its application to §1962,” ante, at 18–19, the Court cites Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___ (2013). That decision will not bear the weight the Court would place on it. As the Court comprehends, the statute there at issue, the Alien Tort Statute, 28 U.S. C. §1350, is a spare jurisdictional grant that itself does not “regulate conduct or afford relief.” Kiobel, 569 U. S., at ___ (slip op., at 5). With no grounding for extraterritorial application in the statute, Kiobel held, courts have no warrant to fashion, on their own initiative, claims for relief that operate extraterritorially. See ibid. (“[T]he question is not what Congress has done but instead what courts may do.”). Cite as: 579 U. S. ____ (2016) 5 Opinion of GINSBURG, J. charged. See ante, at 10–18. See also ante, at 12 (“[I]t is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterri- torial effect.”). The sole additional condition §1964(c) imposes on access to relief is an injury to one’s “business or property.” Nothing in that condition should change the extraterritoriality assessment. In agreement with the Second Circuit, I would hold that “[i]f an injury abroad was proximately caused by the violation of a statute which Congress intended should apply to injurious conduct performed abroad, [there is] no reason to import a domes- tic injury requirement simply because the victim sought redress through the RICO statute.” 764 F.3d 149, 151 (2014). What §1964(c)’s text conveys is confirmed by its history. As this Court has repeatedly observed, Congress modeled §1964(c) on §4 of the Clayton Act, 15 U.S. C. §15, the private civil-action provision of the federal antitrust laws, which employs nearly identical language: “[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue there- for.” See Klehr v. A. O. Smith Corp., 521 U.S. 179, 189– 190 (1997); Holmes v. Securities Investor Protection Corpo- ration, 503 U.S. 258, 267–268 (1992); Sedima, 473 U.S., at 485, 489. Clayton Act §4, the Court has held, provides a remedy for injuries both foreign and domestic. Pfizer Inc. v. Government of India, 434 U.S. 308, 313–314 (1978) (“Congress did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country.”); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 707–708 (1962) (allowing recovery in Clayton Act §4 suit for injuries in Canada). “The similarity of language in [the two statutes] is, of course, a strong indication that [they] should be interpreted pari passu,” Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (per curiam), and I see 6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. no contradictory indication here.3 Indeed, when the Court has addressed gaps in §1964(c), it has aligned the RICO private right of action with the private right afforded by Clayton Act §4. See, e.g., Klehr, 521 U.S., at 188–189 (adopting for private RICO actions Clayton Act §4’s ac- crual rule—that a claim accrues when a defendant commits an act that injures a plaintiff ’s business—rather than criminal RICO’s “most recent, predicate act” rule); Holmes, 503 U.S., at 268 (requiring private plaintiffs under §1964(c), like private plaintiffs under Clayton Act §4, to show proximate cause); Agency Holding Corp. v. Malley- Duff & Associates, Inc., 483 U.S. 143, 155–156 (1987) (applying to §1964(c) actions Clayton Act §4’s shorter statute of limitations instead of “catchall” federal statute of limitations applicable to RICO criminal prosecutions). This very case illustrates why pinning a domestic-injury requirement onto §1964(c) makes little sense. All defend- ants are U. S. corporations, headquartered in the United States, charged with a pattern of racketeering activity directed and managed from the United States, involving —————— 3 TheCourt asserts that “[t]here is good reason not to interpret §1964(c) to cover foreign injuries just because the Clayton Act does.” Ante, at 25. The Clayton Act’s definition of “person,” 15 U.S. C. §12, the Court observes, “explicitly includes ‘corporations and associations existing under or authorized by . . . the laws of any foreign country.’ ” Ante, at 25 (some internal quotation marks omitted). RICO, the Court stresses, lacks this “critical” language. Ibid. The Court’s point is underwhelming. RICO’s definition of “persons” is hardly confining: “any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S. C. §1961(3). Moreover, there is little doubt that Congress anticipated §1964(c) plaintiffs like the suitors here. See 147 Cong. Rec. 20676, 20710 (2001) (remarks of Sen. Kerry) (“Since some of the money-laundering conducted in the world today also defrauds foreign governments, it would be hostile to the intent of [the USA PATRIOT Act, which added as RICO predicates additional money laundering offenses,] for us to interject into the statute any rule of construction of legislative language which would in any way limit our foreign allies access to our courts to battle against money laundering.”). Cite as: 579 U. S. ____ (2016) 7 Opinion of GINSBURG, J. conduct occurring in the United States. In particular, according to the complaint, defendants received in the United States funds known to them to have been gener- ated by illegal narcotics trafficking and terrorist activity, conduct violative of §1956(a)(2); traveled using the facili- ties of interstate commerce in furtherance of unlawful activity, in violation of §1952; provided material support to foreign terrorist organizations “in the United States and elsewhere,” in violation of §2339B; and used U. S. mails and wires in furtherance of a “scheme or artifice to de- fraud,” in violation of §§1341 and 1343. App. to Pet. for Cert. 238a–250a. In short, this case has the United States written all over it. B The Court nevertheless deems a domestic-injury re- quirement for private RICO plaintiffs necessary to avoid international friction. See ante, at 20–22. When the United States considers whether to initiate a prosecution or civil suit, the Court observes, it will take foreign-policy considerations into account, but private parties will not. It is far from clear, however, that the Court’s blanket rule would ordinarily work to ward off international discord. Invoking the presumption against extraterritoriality as a bar to any private suit for injuries to business or property abroad, this case suggests, might spark, rather than quell, international strife. Making such litigation available to domestic but not foreign plaintiffs is hardly solicitous of international comity or respectful of foreign interests. Cf. Pfizer, 434 U.S., at 318–319 (“[A] foreign nation is gener- ally entitled to prosecute any civil claim in the courts of the United States upon the same basis as a domestic corporation or individual might do. To deny him this privilege would manifest a want of comity and friendly feeling.” (internal quotation marks omitted)). RICO’s definitional provisions exclude “[e]ntirely foreign 8 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. activity.” 783 F.3d 123, 143 (Lynch, J., dissenting from denial of rehearing en banc). Thus no suit under RICO would lie for injuries resulting from “[a] pattern of mur- ders of Italian citizens committed by members of an Ital- ian organized crime group in Italy.” Ibid. That is so because “murder is a RICO predicate only when it is ‘chargeable under state law’ or indictable under specific federal statutes.” Ibid. (citing §1961(1)(A), (G)). To the extent extraterritorial application of RICO could give rise to comity concerns not present in this case, those concerns can be met through doctrines that serve to block litigation in U. S. courts of cases more appropriately brought elsewhere. Where an alternative, more appropri- ate forum is available, the doctrine of forum non conven- iens enables U. S. courts to refuse jurisdiction. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (dismissing wrongful-death action arising out of air crash in Scotland involving only Scottish victims); Restatement (Second) of Conflict of Laws §84 (1969). Due process constraints on the exercise of general personal jurisdiction shelter foreign corporations from suit in the United States based on conduct abroad unless the corporation’s “affiliations with the [forum] in which suit is brought are so constant and pervasive ‘as to render it essentially at home [there].’ ” Daimler AG v. Bauman, 571 U. S. ___, ___–___ (2014) (slip op., at 2–3) (quoting Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919 (2011); alterations omitted). These controls provide a check against civil RICO litigation with little or no connection to the United States. * * * The Court hems in RICO out of concern about establish- ing a “double standard.” Ante, at 22. But today’s decision does exactly that. U. S. defendants commercially engaged here and abroad would be answerable civilly to U. S. Cite as: 579 U. S. ____ (2016) 9 Opinion of GINSBURG, J. victims of their criminal activities, but foreign parties similarly injured would have no RICO remedy. “ ‘Sauce for the goose’ ” should indeed serve the gander as well. See ibid. (quoting Heffernan v. City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6)). I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment: “To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ §1962, and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F.3d, at 151 (quoting Sedima, 473 U.S., at 495; Holmes, 503 U.S., at 268)). Because the Court overturns that judgment, I dissent. Cite as: 579 U. S. ____ (2016) 1 Opinion of BREYER, J. SUPREME COURT OF THE UNITED STATES _________________ No. 15–138 _________________ RJR NABISCO, INC., ET AL., PETITIONERS v. EUROPEAN COMMUNITY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 20, 2016] JUSTICE BREYER, concurring in part, dissenting in part, and dissenting from the judgment. I join Parts I through III of the Court’s opinion. But I do not join Part IV. The Court there holds that the private right of action provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. §1964(c), has no extraterritorial application. Like JUSTICE GINSBURG, I believe that it does. In saying this, I note that this case does not involve the kind of purely foreign facts that create what we have sometimes called “foreign-cubed” litigation (i.e., cases where the plaintiffs are foreign, the defendants are for- eign, and all the relevant conduct occurred abroad). See, e.g., Morrison v. National Australia Bank Ltd., 561 U.S. 247, 283, n. 11 (2010) (Stevens, J., concurring in judg- ment). Rather, it has been argued that the statute at issue does not extend to such a case. See 18 U.S. C. §1961(1) (limiting qualifying RICO predicates to those that are, e.g., “chargeable” under state law, or “indictable” or “punishable” under federal law); Tr. of Oral Arg. 32, 33– 34 (respondents conceding that all of the relevant RICO predicates require some kind of connection to the United States). And, as JUSTICE GINSBURG points out, “this case has the United States written all over it.” Ante, at 7 (opin- ion concurring in part, dissenting in part, and dissenting 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of BREYER, J. from judgment). Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view. Consequently, I join JUSTICE GINSBURG’s opinion

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. created four new criminal offenses involving the activities of organized criminal groups in relation to an enterprise. (d). RICO also created a new civil cause of action for “[a]ny person injured in his business or property by reason of a violation” of those prohibitions. We are asked to decide whether RICO applies extraterritorially— that is, to events occurring and injuries suffered outside the United States. I A RICO is founded on the concept of racketeering activity. The statute defines “racketeering activity” to encompass dozens of state and federal offenses, known in RICO par­ lance as pred These predicates include any act “indictable” under specified federal statutes, (C), (E)–(G), as well as certain crimes “chargeable” under state law, and any offense involving bank­ ruptcy or securities fraud or drug-related activity that is 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court “punishable” under federal law, A predicate offense implicates RICO when it is part of a “pattern of racketeering activity”—a series of related predicates that together demonstrate the existence or threat of continued criminal activity. H. J. ; see (specify­ ing that a “pattern of racketeering activity” requires at least two predicates committed within 10 years of each other). RICO’s sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activ- ity may be used to infiltrate, control, or operate “a[n] en­ terprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” These prohibitions can be summarized as follows. Section 1962(a) makes it unlawful to invest income derived from a pattern of rack­ eteering activity in an enterprise. Section 1962(b) makes it unlawful to acquire or maintain an interest in an enter­ prise through a pattern of racketeering activity. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise’s affairs through a pattern of racketeering activity. Finally, (d) makes it unlawful to conspire to violate any of the other three prohibitions.1 —————— 1 In full, 18 U.S. C. provides: “(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has partic­ ipated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, Cite as: 579 U. S. (2016) 3 Opinion of the Court Violations of are subject to criminal penalties, and civil proceedings to enforce those prohibi­ tions may be brought by the Attorney General, (b). Separately, RICO creates a private civil cause of action that allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue in federal district court and recover treble damages, costs, and attorney’s fees. 2 —————— the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. “(b) It shall be unlawful for any person through a pattern of racket­ eering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enter­ prise which is engaged in, or the activities of which affect, interstate or foreign commerce. “(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, inter­ state or foreign commerce, to conduct or participate, directly or indi- rectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” The attentive reader will notice that these prohibitions concern not only patterns of racketeering activity but also the collection of unlawful debt. As is typical in our RICO cases, we have no occasion here to address this aspect of the statute. 2 In full, provides: “Any person injured in his business or property by reason of a viola­ tion of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is crimi­ nally convicted in connection with the fraud, in which case the statute of limitations shall start to run on the date on which the conviction becomes final.” 4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court B This case arises from allegations that petitioners—RJR Nabisco and numerous related entities (collectively RJR)— participated in a global money-laundering scheme in association with various organized crime groups. Re­ spondents—the European Community and 26 of its mem­ ber states—first sued RJR in the Eastern District of New York in 2000, alleging that RJR had violated RICO. Over the past 16 years, the resulting litigation (spread over at least three separate actions, with this case the lone survi­ vor) has seen multiple complaints and multiple trips up and down the federal court system. See *1–*2 (tracing the procedural his- tory through the District Court’s dismissal of the present complaint). In the interest of brevity, we confine our discussion to the operative complaint and its journey to this Court. Greatly simplified, the complaint alleges a scheme in which Colombian and Russian drug traffickers smuggled narcotics into Europe and sold the drugs for euros that— through a series of transactions involving black-market money brokers, cigarette importers, and wholesalers— were used to pay for large shipments of RJR cigarettes into Europe. In other variations of this scheme, RJR allegedly dealt directly with drug traffickers and money launderers in South America and sold cigarettes to Iraq in violation of international sanctions. RJR is also said to have acquired Brown & Williamson Tobacco Corporation for the purpose of expanding these illegal activities. The complaint alleges that RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organiza­ tions, mail fraud, wire fraud, and violations of the Travel Act. RJR, in concert with the other participants in the scheme, allegedly formed an association in fact that was engaged in interstate and foreign commerce, and therefore Cite as: 579 U. S. (2016) 5 Opinion of the Court constituted a RICO enterprise that the complaint dubs the “RJR Money-Laundering Enterprise.” App. to Pet. for Cert. 238a, Complaint ¶158; see (defining an enterprise to include “any union or group of individuals associated in fact although not a legal entity”). Putting these pieces together, the complaint alleges that RJR violated each of RICO’s prohibitions. RJR allegedly used income derived from the pattern of racketeering to invest in, acquire an interest in, and operate the RJR Money-Laundering Enterprise in violation of (a); acquired and maintained control of the enterprise through the pattern of racketeering in violation of (b); oper­ ated the enterprise through the pattern of racketeering in violation of (c); and conspired with other partici­ pants in the scheme in violation of (d).3 These viola­ tions allegedly harmed respondents in various ways, including through competitive harm to their state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs.4 RJR moved to dismiss the complaint, arguing that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The District Court agreed and dismissed the RICO claims as imper­ missibly extraterritorial. —————— 3 The complaint also alleges that RJR committed a variety of state- law torts. Those claims are not before us. 4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European (Sotomayor, J.), cert. denied, It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. 6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court The Second Circuit reinstated the RICO claims. It concluded that, “with respect to a number of offenses that constitute predicates for RICO liability and are alleged in this case, Congress has clearly manifested an intent that they apply extraterritorially.” “By incorporating these statutes into RICO as predicate racketeering acts,” the court reasoned, “Congress has clearly communicated its intention that RICO apply to extraterritorial conduct to the extent that extraterritorial violations of these statutes serve as the basis for RICO liability.” Turning to the predicates alleged in the complaint, the Second Circuit found that they passed muster. The court concluded that the money laundering and material support of terrorism statutes expressly apply extraterritorially in the circumstances alleged in the complaint. at 139–140. The court held that the mail fraud, wire fraud, and Travel Act statutes do not apply extraterritorially. But it concluded that the complaint states domestic violations of those predicates because it “allege[s] conduct in the United States that satisfies every essential element” of those offenses. at 142. RJR sought rehearing, arguing (among other things) that RICO’s civil cause of action requires a plaintiff to allege a domestic injury, even if a domestic pattern of racketeering or a domestic enterprise is not necessary to make out a violation of RICO’s substantive prohibitions. The panel denied rehearing and issued a supplemental opinion holding that RICO does not require a domestic injury. If a for­ eign injury was caused by the violation of a predicate statute that applies extraterritorially, the court concluded, then the plaintiff may seek recovery for that injury under RICO. The Second Circuit later denied re­ hearing en banc, with five judges dissenting. 783 F.3d 123 (2015). Cite as: 579 U. S. (2016) 7 Opinion of the Court The lower courts have come to different conclusions regarding RICO’s extraterritorial application. Compare (case below) (holding that RICO may apply extraterritorially) with United States v. Chao Fan Xu, 706 F.3d 965, 974–975 (CA9 2013) (holding that RICO does not apply extraterritorially; collecting cases). Because of this conflict and the importance of the issue, we granted certiorari. 576 U. S. (2015). II The question of RICO’s extraterritorial application really involves two questions. First, do RICO’s substan­ tive prohibitions, contained in apply to conduct that occurs in foreign countries? Second, does RICO’s private right of action, contained in apply to injuries that are suffered in foreign countries? We consider each of these questions in turn. To guide our inquiry, we begin by reviewing the law of extraterritoriality. It is a basic premise of our legal system that, in general, “United States law governs domestically but does not rule the world.” Microsoft 454 (2007). This principle finds expression in a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. The ques­ tion is not whether we think “Congress would have wanted” a statute to apply to foreign conduct “if it had thought of the situation before the court,” but whether Congress has affirmatively and unmistakably instructed that the statute will do so. “When a statute gives no clear indication of an extraterritorial application, it has none.” at There are several reasons for this presumption. Most notably, it serves to avoid the international discord that 8 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court can result when U. S. law is applied to conduct in foreign countries. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. – (2013) (slip op., at 4–5); EEOC v. Arabian American Oil Co., (Ar- amco); Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 147 (1957). But it also reflects the more prosaic “commonsense notion that Congress generally legislates with domestic concerns in mind.” We therefore apply the presumption across the board, “regardless of whether there is a risk of conflict between the American statute and a foreign law.” at Twice in the past six years we have considered whether a federal statute applies extraterritorially. In we addressed the question whether of the Securities Exchange Act of 1934 applies to misrepresentations made in connection with the purchase or sale of securities traded only on foreign exchanges. We first examined whether gives any clear indication of extraterritorial effect, and found that it does –265. We then engaged in a separate inquiry to determine whether the complaint before us involved a permissible domestic application of because it alleged that some of the relevant misrepresentations were made in the United States. At this second step, we considered the “ ‘focus’ of congressional concern,” asking whether ’s focus is “the place where the deception originated” or rather “pur­ chases and sale of securities in the United States.” at 266. We concluded that the statute’s focus is on domestic securities transactions, and we therefore held that the statute does not apply to frauds in connection with foreign securities transactions, even if those frauds involve do­ mestic misrepresentations. In Kiobel, we considered whether the Alien Tort Statute (ATS) confers federal-court jurisdiction over causes of action alleging international-law violations committed Cite as: 579 U. S. (2016) 9 Opinion of the Court overseas. We acknowledged that the presumption against extraterritoriality is “typically” applied to statutes “regu­ lating conduct,” but we concluded that the principles supporting the presumption should “similarly constrain courts considering causes of action that may be brought under the ATS.” 569 U. S., at (slip op., at 5). We applied the presumption and held that the ATS lacks any clear indication that it extended to the foreign violations alleged in that case. at – (slip op., at 7–14). Because “all the relevant conduct” regarding those viola­ tions “took place outside the United States,” at (slip op., at 14), we did not need to determine, as we did in the statute’s “focus.” and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritori­ ally. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extrater­ ritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extrater­ ritorial application regardless of any other conduct that occurred in U. S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? Neither nor Kiobel involved such a finding. But we addressed this issue in explaining that it was necessary to consider ’s “focus” only because we found that the statute 10 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court does not apply extraterritorially: “If did apply abroad, we would not need to determine which transna­ tional frauds it applied to; it would apply to all of them (barring some other limitation).” n. 9. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute’s foreign application, and not on the statute’s “focus.”5 III With these guiding principles in mind, we first consider whether RICO’s substantive prohibitions in may apply to foreign conduct. Unlike in and Kiobel, we find that the presumption against extraterritoriality has been rebutted—but only with respect to certain appli­ cations of the statute. A The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when “the defendant is a United States person,” to offenses that “tak[e] place outside the United States.” 18 U.S. C. Other examples include the prohibitions against the assassination of Gov­ ernment officials, (“There is extraterritorial juris­ diction over the conduct prohibited by this section”); (same), and the prohibition against hostage taking, which applies to conduct that “occurred outside the United States” if either the hostage or the offender is a —————— 5 Because a finding of extraterritoriality at step one will obviate step two’s “focus” inquiry, it will usually be preferable for courts to proceed in the sequence that we have set forth. But we do not mean to preclude courts from starting at step two in appropriate cases. Cf. Pearson v. Callahan, Cite as: 579 U. S. (2016) 11 Opinion of the Court U. S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U. S. Government, At least one predicate— the prohibition against “kill[ing] a national of the United States, while such national is outside the United States”— applies only to conduct occurring outside the United States. We agree with the Second Circuit that Congress’s incor­ poration of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. Put another way, a pattern of racketeering activity may include or consist of offenses committed abroad in violation of a predicate statute for which the presumption against extraterritorial­ ity has been overcome. To give a simple (albeit grim) example, a violation of could be premised on a pattern of killings of Americans abroad in violation of predicate that all agree applies extraterritori­ ally—whether or not any domestic predicates are also alleged.6 We emphasize the important limitation that foreign conduct must violate “a predicate statute that manifests an unmistakable congressional intent to apply extraterri­ torially.” Although a number of RICO predicates have extraterritorial effect, many do The inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct. This is apparent for two reasons. First, “when a statute pro­ vides for some extraterritorial application, the presump­ tion against extraterritoriality operates to limit that —————— 6 The foreign killings would, of course, still have to satisfy the relat­ edness and continuity requirements of RICO’s pattern element. See H. J. 12 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court provision to its terms.” Second, RICO defines as racketeering activity only acts that are “indictable” (or, what amounts to the same thing, “charge­ able” or “punishable”) under one of the statutes identified in If a particular statute does not apply extra- territorially, then conduct committed abroad is not “in­ dictable” under that statute and so cannot qualify as a predicate under RICO’s plain terms. RJR resists the conclusion that RICO’s incorporation of extraterritorial predicates gives RICO commensurate extraterritorial effect. It points out that “RICO itself ” does not refer to extraterritorial application; only the underlying predicate statutes do. Brief for Petitioners 42. RJR thus argues that Congress could have intended to capture only domestic applications of extraterritorial predicates, and that any predicates that apply only abroad could have been “incorporated solely for when such offenses are part of a broader pattern whose overall locus is domestic.” The presumption against extraterritoriality does not require us to adopt such a constricted interpretation. While the presumption can be overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential. “Assuredly context can be consulted as well.” Con­ text is dispositive here. Congress has not expressly said that (c) applies to patterns of racketeering activity in foreign countries, but it has defined “racketeering activ­ ity”—and by extension a “pattern of racketeering activ­ ity”—to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect. This unique structure makes RICO the rare statute that clearly evidences extra­ territorial effect despite lacking an express statement of Cite as: 579 U. S. (2016) 13 Opinion of the Court extraterritoriality. We therefore conclude that RICO applies to some for­ eign racketeering activity. A violation of may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extrater­ ritorial. This fact is determinative as to (b) and (c), both of which prohibit the employment of a pattern of racketeering. Although they differ as to the end for which the pattern is employed—to acquire or maintain control of an enterprise under subsection (b), or to conduct an enterprise’s affairs under subsection (c)—this differ­ ence is immaterial for extraterritoriality purposes. Section 1962(a) presents a thornier question. Unlike subsections (b) and (c), subsection (a) targets certain uses of income derived from a pattern of racketeering, not the use of the pattern itself. Cf. While we have no difficulty concluding that this prohibition applies to in­ come derived from foreign patterns of racketeering (within the limits we have discussed), arguably (a) extends only to domestic uses of the income. The Second Circuit did not decide this question because it found that respond­ ents have alleged “a domestic investment of racketeering proceeds in the form of RJR’s merger in the United States with Brown & Williamson and investments in other U. S. operations.” n. 5. RJR does not dispute the basic soundness of the Second Circuit’s reasoning, but it does contest the court’s reading of the complaint. See Brief for Petitioners 57–58. Because the parties have not focused on this issue, and because it makes no difference to our resolution of this case, see infra, at 27, we assume without deciding that respondents have pleaded a domes­ tic investment of racketeering income in violation of (a). Finally, although respondents’ complaint alleges a 14 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court violation of RICO’s conspiracy provision, (d), the parties’ briefs do not address whether this provision should be treated differently from the provision ((a), (b), or (c)) that a defendant allegedly conspired to violate. We therefore decline to reach this issue, and assume without deciding that (d)’s extraterritoriality tracks that of the provision underlying the alleged conspiracy. B RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises. Invoking ’s discussion of the Exchange Act’s “focus,” RJR says that the “focus” of RICO is the enterprise being corrupted—not the pattern of racketeering—and that RICO’s enterprise element gives no clear indication of extraterritorial effect. Accordingly, RJR reasons, RICO requires a domestic enterprise. This argument misunderstands As explained at 9–10, only at the second step of the in­ quiry do we consider a statute’s “focus.” Here, however, there is a clear indication at step one that RICO applies extraterritorially. We therefore do not proceed to the “focus” step. The Court’s discussion of the statu­ tory “focus” made this clear, stating that “[i]f did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).” n. 9. The same is true here. RICO—or at least §(b) and (c)—applies abroad, and so we do not need to deter­ mine which transnational (or wholly foreign) patterns of racketeering it applies to; it applies to all of them, regard­ less of whether they are connected to a “foreign” or “do­ mestic” enterprise. This rule is, of course, subject to the important limitation that RICO covers foreign predicate offenses only to the extent that the underlying predicate statutes are extraterritorial. But within those bounds, the Cite as: 579 U. S. (2016) 15 Opinion of the Court location of the affected enterprise does not impose an independent constraint. It is easy to see why Congress did not limit RICO to domestic enterprises. A domestic enterprise requirement would lead to difficult line-drawing problems and counter­ intuitive results. It would exclude from RICO’s reach foreign enterprises—whether corporations, crime rings, other associations, or individuals—that operate within the United States. Imagine, for example, that a foreign corpo­ ration has operations in the United States and that one of the corporation’s managers in the United States conducts its U. S. affairs through a pattern of extortion and mail fraud. Such domestic conduct would seem to fall well within what Congress meant to capture in enacting RICO. Congress, after all, does not usually exempt foreigners acting in the United States from U. S. legal requirements. See (“Surely the presumption against extraterritorial application of United States laws does not command giving foreigners carte blanche to violate the laws of the United States in the United States”). Yet RJR’s theory would insulate this scheme from RICO liabil­ ity—both civil and criminal—because the enterprise at issue is a foreign, not domestic, corporation. Seeking to avoid this result, RJR offers that any “ ‘emis­ saries’ ” a foreign enterprise sends to the United States— such as our hypothetical U. S.-based corporate manager— could be carved off and considered a “distinct domestic enterprise” under an association-in-fact theory. Brief for Petitioners 40. RJR’s willingness to gerrymander the enterprise to get around its proposed domestic enterprise requirement is telling. It suggests that RJR is not really concerned about whether an enterprise is foreign or do­ mestic, but whether the relevant conduct occurred here or abroad. And if that is the concern, then it is the pattern of racketeering activity that matters, not the enterprise. Even spotting RJR its “domestic emissary” theory, this 16 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court approach would lead to strange gaps in RICO’s coverage. If a foreign enterprise sent only a single “emissary” to engage in racketeering in the United States, there could be no RICO liability because a single person cannot be both the RICO enterprise and the RICO defendant. Cedric Kushner Promotions, (2001). RJR also offers no satisfactory way of determining whether an enterprise is foreign or domestic. Like the District Court, RJR maintains that courts can apply the “nerve center” test that we use to determine a corpora­ tion’s principal place of business for purposes of federal diversity jurisdiction. See Hertz Corp. v. Friend, 559 U.S. 77 ; 28 U.S. C. §2(c)(1); at *5– *6. But this test quickly becomes meaningless if, as RJR suggests, a corporation with a foreign nerve center can, if necessary, be pruned into an association-in-fact enterprise with a domestic nerve center. The nerve center test, developed with ordinary corporate command structures in mind, is also ill suited to govern RICO association-in-fact enterprises, which “need not have a hierarchical structure or a ‘chain of command.’ ” Boyle v. United States, 556 U.S. 938, 948 These difficulties are largely avoided if, as we conclude today, RICO’s extraterritorial effect is pegged to the extraterritoriality judgments Congress has made in the predicate statutes, often by providing precise instructions as to when those statutes apply to foreign conduct. The practical problems we have identified with RJR’s proposed domestic enterprise requirement are not, by themselves, cause to reject it. Our point in reciting these troubling consequences of RJR’s theory is simply to rein­ force our conclusion, based on RICO’s text and context, that Congress intended the prohibitions in 18 U.S. C. §(b) and (c) to apply extraterritorially in tandem with the underlying predicates, without regard to the Cite as: 579 U. S. (2016) 17 Opinion of the Court locus of the enterprise. Although we find that RICO imposes no domestic enter­ prise requirement, this does not mean that every foreign enterprise will qualify. Each of RICO’s substantive prohi­ bitions requires proof of an enterprise that is “engaged in, or the activities of which affect, interstate or foreign com­ merce.” §(a), (b), (c). We do not take this reference to “foreign commerce” to mean literally all commerce occurring abroad. Rather, a RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States—e.g., commerce between the United States and a foreign country. Enterprises whose activities lack that anchor to U. S. commerce cannot sus­ tain a RICO violation. C Applying these principles, we agree with the Second Circuit that the complaint does not allege impermissibly extraterritorial violations of §(b) and (c).7 The alleged pattern of racketeering activity consists of five basic predicates: (1) money laundering, (2) material support of foreign terrorist organizations, (3) mail fraud, (4) wire fraud, and (5) violations of the Travel Act. The Second Circuit observed that the relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application in certain circumstances, and it concluded that those circumstances are alleged to be present here. 764 F.3d, at 139–140. The court found that the fraud statutes and the Travel Act do not contain the clear indication needed to overcome the presumption against extraterritoriality. But it held that the complaint alleges domestic violations of those statutes because it “allege[s] conduct in the United States that satisfies every essential element of the mail —————— 7 As to §(a) and (d), see at 13–14. 18 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court fraud, wire fraud, and Travel Act claims.” RJR does not dispute these characterizations of the alleged pred We therefore assume without deciding that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritori­ ally. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies, and its activities depend on sales of RJR’s cigarettes con­ ducted through “the U. S. mails and wires,” among other things. App. to Pet. for Cert. 186a, Complaint ¶96. On these premises, respondents’ allegations that RJR violated §(b) and (c) do not involve an impermissibly extra­ territorial application of RICO.8 IV We now turn to RICO’s private right of action, on which respondents’ lawsuit rests. Section 1964(c) allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue for treble damages, costs, and attorney’s fees. Irrespective of any extraterritorial application of we conclude that does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property. A The Second Circuit thought that the presumption against extraterritoriality did not apply to inde­ pendently of its application to reasoning that the —————— 8 We stress that we are addressing only the extraterritoriality ques­ tion. We have not been asked to decide, and therefore do not decide, whether the complaint satisfies any other requirements of RICO, or whether the complaint in fact makes out violations of the relevant predicate statutes. Cite as: 579 U. S. (2016) 19 Opinion of the Court presumption “is primarily concerned with the question of what conduct falls within a statute’s purview.” 764 F.3d, We rejected that view in Kiobel, holding that the presumption “constrain[s] courts considering causes of action” under the ATS, a “ ‘strictly jurisdictional’ ” statute that “does not directly regulate conduct or afford relief.” 569 U. S., at (slip op., at 5). We reached this conclu­ sion even though the underlying substantive law consisted of well-established norms of international law, which by definition apply beyond this country’s borders. See at – (slip op., at 5–7). The same logic requires that we separately apply the presumption against extraterritoriality to RICO’s cause of action despite our conclusion that the presumption has been overcome with respect to RICO’s substantive prohibi­ tions. “The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion.” Thus, as we have observed in other contexts, providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U. S. substantive law to that foreign conduct. See, e.g., Kiobel, at (slip op., at 6) (“Each of th[e] decisions” involved in defining a cause of action based on “conduct within the territory of another sovereign” “carries with it significant foreign policy implications”). Consider antitrust. In that context, we have observed that “[t]he application of American private treble- damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy” in other nations, even when those nations agree with U. S. sub­ stantive law on such things as banning price fixing. F. Hoffmann-La Roche Ltd v. S. A., 542 U.S. 20 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court 155, 167 Numerous foreign countries—including some respondents in this case—advised us in that “to apply [U. S.] remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing consid­ erations that their own domestic antitrust laws embody.” 9 We received similar warnings in where France, a respondent here, informed us that “most foreign countries proscribe securities fraud” but “have made very —————— 9 See Brief for Governments of Federal Republic of Germany et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 11 (identifying “controversial features of the U. S. legal system,” including treble damages, extensive discovery, jury trials, class actions, contingency fees, and punitive damages); (“Private plaintiffs rarely exercise the type of self- restraint or demonstrate the requisite sensitivity to the concerns of foreign governments that mark actions brought by the United States government”); Brief for United Kingdom et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 13 (“No other country has adopted the United States’ unique ‘bounty hunter’ approach that permits a private plaintiff to ‘recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.’ Expanding the jurisdiction of this generous United States private claim system could skew enforce­ ment and increase international business risks. It makes United States courts the forum of choice without regard to whose laws are applied, where the injuries occurred or even if there is any connection to the court except the ability to get in personam jurisdiction over the defendants”); see also Brief for Government of Canada as Amicus Curiae, O. T. 2003, No. 03–724, p. 14 (“[T]he attractiveness of the [U. S.] treble damages remedy would supersede the national policy decision by Canada that civil recovery by Canadian citizens for injuries resulting from anti-competitive behavior in Canada should be limited to actual damages”). concerned not the presumption against extraterritoriality per se, but the related rule that we construe statutes to avoid unreasonable interference with other nations’ sovereign authority where possible. See F. Hoffmann-La Roche ; see also Hartford Fire Ins. Co. v. California, (dis­ cussing the two canons). As the foregoing discussion makes clear, considerations relevant to one rule are often relevant to the other. Cite as: 579 U. S. (2016) 21 Opinion of the Court different choices with respect to the best way to implement that proscription,” such as “prefer[ring] ‘state actions, not private ones’ for the enforcement of law.” Brief for Repub­ lic of France as Amicus Curiae, O. T. 2009, No. 08–1191, p. 20; see (“Even when foreign countries permit private rights of action for securities fraud, they often have different schemes” for litigating them and “may approve of different measures of damages”). Allowing foreign investors to pursue private suits in the United States, we were told, “would upset that delicate balance and offend the sovereign interests of foreign nations.” at 26. Allowing recovery for foreign injuries in a civil RICO action, including treble damages, presents the same dan­ ger of international friction. See Brief for United States as Amicus Curiae 31–34. This is not to say that friction would necessarily result in every case, or that Congress would violate international law by permitting such suits. It is to say only that there is a potential for international controversy that militates against recognizing foreign- injury claims without clear direction from Congress. Although “a risk of conflict between the American statute and a foreign law” is not a prerequisite for applying the presumption against extraterritoriality, 561 U.S., at where such a risk is evident, the need to enforce the presumption is at its apex. Respondents urge that concerns about international friction are inapplicable in this case because here the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but rather the foreign countries themselves. Brief for Respondents 52– 53. Respondents assure us that they “are satisfied that the[ir] complaint comports with limitations on pre­ scriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Even assuming that this is true, however, our interpretation of ’s 22 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court injury requirement will necessarily govern suits by non­ governmental plaintiffs that are not so sensitive to foreign sovereigns’ dignity. We reject the notion that we should forgo the presumption against extraterritoriality and instead permit extraterritorial suits based on a case-by­ case inquiry that turns on or looks to the consent of the affected sovereign. See (“Rather than guess anew in each case, we apply the presumption in all cases”); cf. Respond­ ents suggest that we should be reluctant to permit a for­ eign corporation to be sued in the courts of this country for events occurring abroad if the nation of incorporation objects, but that we should discard those reservations when a foreign state sues a U. S. entity in this country under U. S. law—instead of in its own courts and under its own laws—for conduct committed on its own soil. We refuse to adopt this double standard. “After all, in the law, what is sauce for the goose is normally sauce for the gander.” Heffernan v. City of Paterson, 578 U. S. (2016) (slip op., at 6). B Nothing in provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States. The statute provides a cause of action to “[a]ny person injured in his business or property” by a violation of The word “any” ordinarily connotes breadth, but it is insufficient to displace the presumption against extrater­ ritoriality. See Kiobel, 569 U. S., at (slip op., at 7). The statute’s reference to injury to “business or property” also does not indicate extraterritorial application. If anything, by cabining RICO’s private cause of action to particular kinds of injury—excluding, for example, per­ sonal injuries—Congress signaled that the civil remedy is not coextensive with ’s substantive prohibitions. Cite as: 579 U. S. (2016) 23 Opinion of the Court The rest of places a limit on RICO plaintiffs’ ability to rely on securities fraud to make out a claim. This too suggests that is narrower in its applica­ tion than and in any event does not support extra­ territoriality. The Second Circuit did not identify anything in that shows that the statute reaches foreign injuries. Instead, the court reasoned that ’s extraterritorial effect flows directly from that of Citing our holding in S. P. R. that the “compensable injury” addressed by “nec­ essarily is the harm caused by predicate acts sufficiently related to constitute a pattern,” the Court of Appeals held that a RICO plaintiff may sue for foreign injury that was caused by the violation of a predicate statute that applies extraterritorially, just as a substan­ tive RICO violation may be based on extraterritorial pred­ 764 F.3d, JUSTICE GINSBURG advances the same theory. See post, at 4–5 (opinion concurring in part and dissenting in part). This reasoning has surface ap­ peal, but it fails to appreciate that the presumption against extraterritoriality must be applied separately to both RICO’s substantive prohibitions and its private right of action. See at 18–22. It is not enough to say that a private right of action must reach abroad because the underlying law governs conduct in foreign countries. Something more is needed, and here it is absent.10 Respondents contend that background legal principles allow them to sue for foreign injuries, invoking what they call the “ ‘traditional rule’ that ‘a plaintiff injured in a foreign country’ could bring suit ‘in American courts.’ ” —————— 10 Respondents note that itself involved an injury suffered by a Belgian corporation in Belgium. Brief for Respondents 45–46; see S. P. R. Re­ spondents correctly do not contend that this fact is controlling here, as the Court did not address the foreign-injury issue. 24 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court Brief for Respondents 41 (quoting – 707). But the rule respondents invoke actually provides that a court will ordinarily “apply foreign law to determine the tortfeasor’s liability” to “a plaintiff injured in a foreign country.” Respondents’ argument might have force if they sought to sue RJR for violations of their own laws and to invoke federal diversity jurisdiction as a basis for proceeding in U. S. courts. See U. S. Const., Art. III, cl. 1 (“The judicial Power [of the United States] shall extend to Controversies be­ tween a State, or the Citizens thereof, and foreign States”); 28 U.S. C. §2(a)(4) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between a foreign state as plaintiff and citizens of a State or of different States”). The question here, however, is not “whether a federal court has jurisdic­ tion to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law” for injury suffered overseas. Kiobel, at (slip op., at 8) As to that question, the relevant background principle is the pre­ sumption against extraterritoriality, not the “traditional rule” respondents cite. Respondents and JUSTICE GINSBURG point out that RICO’s private right of action was modeled after of the Clayton Act, 15 U.S. C. see which we have held allows recovery for injuries suffered abroad as a result of antitrust violations, see 314–315 It follows, respondents and JUSTICE GINSBURG contend, that likewise allows plaintiffs to sue for injuries suffered in foreign countries. We disagree. Al- though we have often looked to the Clayton Act for guid­ Cite as: 579 U. S. (2016) 25 Opinion of the Court ance in construing we have not treated the two statutes as interchangeable. We have declined to trans­ plant features of the Clayton Act’s cause of action into the RICO context where doing so would be inappropriate. For example, in we held that a RICO plaintiff need not allege a special “racketeering injury,” rejecting a require­ ment that some lower courts had adopted by “[a]nalog[y]” to the “antitrust injury” required under the Clayton Act. There is good reason not to interpret to cover foreign injuries just because the Clayton Act does so. When we held in that the Clayton Act allows recov­ ery for foreign injuries, we relied first and foremost on the fact that the Clayton Act’s definition of “person”—which in turn defines who may sue under that Act—“explicitly includes ‘corporations and associations existing under or authorized by the laws of any foreign country.’ ” 434 U.S., at 313; see 15 U.S. C. RICO lacks the lan­ guage that the Court found critical. See 18 U.S. C. To the extent that the Court cited other —————— 11 most directly concerned whether a foreign government is a “person” that may be a Clayton Act plaintiff. But it is clear that the Court’s decision more broadly concerned recovery for foreign injuries, see (expressing concern that “persons doing business both in this country and abroad might be tempted to enter into anti­ competitive conspiracies affecting American consumers in the expecta­ tion that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home”), as respondents themselves contend, see Brief for Respondents 44 (“[T]his Court clearly recognized in that Section 4 extends to foreign injuries”). The Court also permitted an antitrust plaintiff to sue for foreign injuries in Continental Ore Co. v. Union Carbide & Carbon Corp., but the Court’s discussion in that case focused on the extraterritoriality of the underly­ ing antitrust prohibitions, not the Clayton Act’s private right of action, see at 704–705, and so sheds little light on the interpretive question now before us. 12 This does not mean that foreign plaintiffs may not sue under RICO. The point is that RICO does not include the explicit foreign-oriented 26 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court factors that might apply to they were not suffi­ cient in themselves to show that the provision has extra­ territorial effect. For example, the Court, writing before we honed our extraterritoriality jurisprudence in and Kiobel, reasoned that Congress “[c]learly did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country” because “the antitrust laws extend to trade ‘with foreign nations’ as well as among the several States of the Union.” –314. But we have emphatically rejected reliance on such language, holding that “ ‘even statutes that expressly refer to “foreign commerce” do not apply abroad.’ ” –263. This reasoning also fails to distinguish between extending substantive antitrust law to foreign conduct and extending a private right of action to foreign injuries, two separate issues that, as we have explained, raise distinct extraterritoriality problems. See at 18–22. Finally, the Court expressed concern that it would “defeat th[e] purposes” of the antitrust laws if a defendant could “escape full liability for his illegal actions.” But this justifi­ cation was merely an attempt to “divin[e] what Congress would have wanted” had it considered the question of extraterritoriality—an approach we eschewed in 561 U.S., Given all this, and in particular the fact that RICO lacks the language that found integral to its decision, we decline to extend this aspect of our Clayton Act jurisprudence to RICO’s cause of action. Underscoring our reluctance to read as broadly as we have read the Clayton Act is Congress’s more recent decision to define precisely the antitrust laws’ extraterri­ torial effect and to exclude from their reach most conduct that “causes only foreign injury.” 542 U. S., at —————— language that the Court found to support foreign-injury suits under the Clayton Act. Cite as: 579 U. S. (2016) 27 Opinion of the Court 158 (describing Foreign Trade Antitrust Improvements Act of 1982); see also at 169–171, 173–174 (discussing how the applicability of the antitrust laws to foreign inju­ ries may depend on whether suit is brought by the Gov­ ernment or by private plaintiffs). Although this later enactment obviously does not limit ’s scope by its own force, it does counsel against importing into RICO those Clayton Act principles that are at odds with our current extraterritoriality doctrine. C Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. The applica­ tion of this rule in any given case will not always be self- evident, as disputes may arise as to whether a particular alleged injury is “foreign” or “domestic.” But we need not concern ourselves with that question in this case. As this case was being briefed before this Court, respondents filed a stipulation in the District Court waiving their damages claims for domestic injuries. The District Court accepted this waiver and dismissed those claims with prejudice. Respondents’ remaining RICO damages claims there­ fore rest entirely on injury suffered abroad and must be dismissed.13 —————— 13 In respondents’ letter notifying this Court of the waiver of their domestic-injury damages claims, respondents state that “[n]othing in the stipulation will affect respondents’ claims for equitable relief, including claims for equitable relief under state common law that are not at issue in this case before this Court.” Letter from David C. Frederick, Counsel for Respondents, to Scott S. Harris, Clerk of Court (Feb. 29, 2016). Although the letter mentions only state-law claims for equitable relief, Count 5 of respondents’ complaint seeks equitable relief under RICO. App. to Pet. for Cert. 260a–262a, Complaint ¶¶181– 188. This Court has never decided whether equitable relief is available to private RICO plaintiffs, the parties have not litigated that question here, and we express no opinion on the issue today. We note, however, 28 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of the Court * * * The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. JUSTICE SOTOMAYOR took no part in the consideration or decision of this case. —————— that any claim for equitable relief under RICO based on foreign injuries is necessarily foreclosed by our holding that ’s cause of action requires a domestic injury to business or property. It is unclear whether respondents intend to seek equitable relief under RICO based on domestic injuries, and it may prove unnecessary to decide whether (or respondents’ stipulation) permits such relief in light of respondents’ state-law claims. We leave it to the lower courts to determine, if necessary, the status and availability of any such claims. Cite as: 579 U. S. (2016) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 15–138 RJR NABISCO, INC., ET AL., PETITIONERS v. EUROPEAN COMMUNITY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 20, 2016] JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in Parts I, II, and III and dissenting from Part IV and from the judgment. In enacting the Racketeer Influenced and Corrupt Or- ganizations Act (RICO), 18 U.S. C. et seq., Congress sought to provide a new tool to combat “organized crime and its economic roots.” Russello v. United States, 464 U.S. 16, 26 (1983). RICO accordingly proscribes various ways in which an “enterprise,” might be con- trolled, operated, or funded by a “pattern of racketeering activity,” (1), (5). See1 RICO builds on predi- cate statutes, many of them applicable extraterritorially. App. to Brief for United States as Amicus Curiae 27a–33a. Congress not only armed the United States with authority to initiate criminal and civil proceedings to enforce RICO, 1964(b), Congress also created in a pri- vate right of action for “[a]ny person injured in his busi- ness or property by reason of a violation of [RICO’s sub- —————— 1 The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. et seq., makes it unlawful “to invest” in an enterprise income derived from a pattern of racketeering activity, (a), “to acquire or maintain” an interest in an enterprise through a pattern of racketeering activity, (b), “to conduct or participate in the conduct” of an enterprise through a pattern of racketeering activity, (c), or “to conspire” to violate any of those provisions, (d). 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. stantive provision].” Invoking this right, respondents, the European Com- munity and 26 member states, filed suit against petition- ers, RJR Nabisco, Inc., and related entities. Alleging that petitioners orchestrated from their U. S. headquarters a complex money-laundering scheme in violation of RICO, respondents sought to recover for various injuries, includ- ing losses sustained by financial institutions and lost opportunities to collect duties. See ante, at 4–7. Denying respondents a remedy under RICO, the Court today reads into a domestic-injury requirement for suits by private plaintiffs nowhere indicated in the statute’s text. Correctly, the Court imposes no such restriction on the United States when it initiates a civil suit under Unsupported by RICO’s text, inconsistent with its pur- poses, and unnecessary to protect the comity interests the Court emphasizes, the domestic-injury requirement for private suits replaces Congress’ prescription with one of the Court’s own invention. Because the Court has no authority so to amend RICO, I dissent. I As the Court recounts, ante, at 7, “Congress ordinarily legislates with respect to domestic, not foreign, matters.” v. National Australia Bank Ltd., So recognizing, the Court employs a presump- tion that “ ‘legislation is meant to apply only within the territorial jurisdiction of the United States.’ ” ()). But when a statute demonstrates Con- gress’ “affirmative inten[t]” that the law should apply beyond the borders of the United States, as numerous RICO predicate statutes do, the presumption is rebutted, and the law applies extraterritorially to the extent Con- gress prescribed. See 561 U.S., at (quoting 499 U.S., at ). The presumption, in short, Cite as: 579 U. S. (2016) 3 Opinion of GINSBURG, J. aims to distinguish instances in which Congress con- sciously designed a statute to reach beyond U. S. borders, from those in which nothing plainly signals that Congress directed extraterritorial application. In this case, the Court properly holds that Congress signaled its “affirmative inten[t],” 561 U.S., at that RICO, in many instances, should apply extrater- ritorially. See ante, at 10–18; App. to Brief for United States as Amicus Curiae 27a–33a. As the Court relates, see ante, at 10–14, Congress deliberately included within RICO’s compass predicate federal offenses that manifestly reach conduct occurring abroad. See, e.g., (money laundering); (material support to foreign terrorist organizations). Accordingly, the Court concludes, when the predicate crimes underlying invocation of thrust extraterritorially, so too does I agree with that conclusion. I disagree, however, that the private right of action authorized by requires a domestic injury to a person’s business or property and does not allow recovery for foreign injuries. One cannot extract such a limitation from the text of which affords a right of action to “[a]ny person injured in his business or property by reason of a violation of section 1962.” Section 1962, at least sub- sections (b) and (c), all agree, encompasses foreign inju- ries. How can exclude them when, by its express terms, is triggered by “a violation of section 1962”? To the extent RICO reaches injury abroad when the Government is the suitor pursuant to (specify- ing prohibited activities) and (criminal penalties) or (civil remedies), to that same extent, I would hold, RICO reaches extraterritorial injury when, pursuant to the suitor is a private plaintiff. 4 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. II A I would not distinguish, as the Court does, between the extraterritorial compass of a private right of action and that of the underlying proscribed conduct. See ante, at 18–22, 23, 26. Instead, I would adhere to precedent ad- dressing RICO, linking, not separating, prohibited activi- ties and authorized remedies. See S. P. R. L. v. Imrex Co., (“If the defendant engages in a pattern of racketeering activity in a manner forbidden by [], and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under ”); (refusing to require a “dis- tinct ‘racketeering injury’ ” for private RICO actions under where imposes no such requirement).2 To reiterate, a right of action may be main- tained by “[a]ny person injured in his business or property by reason of a violation of section 1962” “[I]ncorporating one statute into another,” the Court has long understood, “serves to bring into the latter all that is fairly covered by the reference.” Panama R. Co. v. Johnson, RICO’s private right of action, it cannot be gainsaid, expressly incorporates whose extraterritoriality, the Court recognizes, is coextensive with the underlying predicate offenses —————— 2 Insisting that the presumption against extraterritoriality should “apply to independently of its application to” ante, at 18–19, the Court cites Kiobel v. Royal Dutch Petroleum Co., 569 U. S. (2013). That decision will not bear the weight the Court would place on it. As the Court comprehends, the statute there at issue, the Alien Tort Statute, 28 U.S. C. is a spare jurisdictional grant that itself does not “regulate conduct or afford relief.” Kiobel, 569 U. S., at (slip op., at 5). With no grounding for extraterritorial application in the statute, Kiobel held, courts have no warrant to fashion, on their own initiative, claims for relief that operate extraterritorially. See (“[T]he question is not what Congress has done but instead what courts may do.”). Cite as: 579 U. S. (2016) 5 Opinion of GINSBURG, J. charged. See ante, at 10–18. See also ante, at 12 (“[I]t is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterri- torial effect.”). The sole additional condition imposes on access to relief is an injury to one’s “business or property.” Nothing in that condition should change the extraterritoriality assessment. In agreement with the Second Circuit, I would hold that “[i]f an injury abroad was proximately caused by the violation of a statute which Congress intended should apply to injurious conduct performed abroad, [there is] no reason to import a domes- tic injury requirement simply because the victim sought redress through the RICO statute.” What ’s text conveys is confirmed by its history. As this Court has repeatedly observed, Congress modeled on of the Clayton Act, 15 U.S. C. the private civil-action provision of the federal antitrust laws, which employs nearly identical language: “[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue there- for.” See 189– 190 (1997); ; 473 U.S., at 485, 489. Clayton Act the Court has held, provides a remedy for injuries both foreign and domestic. (“Congress did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country.”); Continental Ore (allowing recovery in Clayton Act suit for injuries in Canada). “The similarity of language in [the two statutes] is, of course, a strong indication that [they] should be interpreted pari passu,” and I see 6 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of GINSBURG, J. no contradictory indication here.3 Indeed, when the Court has addressed gaps in it has aligned the RICO private right of action with the private right afforded by Clayton Act See, e.g., –189 (adopting for private RICO actions Clayton Act ’s ac- crual rule—that a claim accrues when a defendant commits an act that injures a plaintiff ’s business—rather than criminal RICO’s “most recent, predicate act” rule); Holmes, (requiring private plaintiffs under like private plaintiffs under Clayton Act to show proximate cause); Agency Holding (applying to actions Clayton Act ’s shorter statute of limitations instead of “catchall” federal statute of limitations applicable to RICO criminal prosecutions). This very case illustrates why pinning a domestic-injury requirement onto makes little sense. All defend- ants are U. S. corporations, headquartered in the United States, charged with a pattern of racketeering activity directed and managed from the United States, involving —————— 3 TheCourt asserts that “[t]here is good reason not to interpret to cover foreign injuries just because the Clayton Act does.” Ante, at 25. The Clayton Act’s definition of “person,” 15 U.S. C. the Court observes, “explicitly includes ‘corporations and associations existing under or authorized by the laws of any foreign country.’ ” Ante, at 25 (some internal quotation marks omitted). RICO, the Court stresses, lacks this “critical” language. The Court’s point is underwhelming. RICO’s definition of “persons” is hardly confining: “any individual or entity capable of holding a legal or beneficial interest in property.” 18 U.S. C. (3). Moreover, there is little doubt that Congress anticipated plaintiffs like the suitors here. See 147 Cong. Rec. 20676, 20710 (2001) (remarks of Sen. Kerry) (“Since some of the money-laundering conducted in the world today also defrauds foreign governments, it would be hostile to the intent of [the USA PATRIOT Act, which added as RICO predicates additional money laundering offenses,] for us to interject into the statute any rule of construction of legislative language which would in any way limit our foreign allies access to our courts to battle against money laundering.”). Cite as: 579 U. S. (2016) 7 Opinion of GINSBURG, J. conduct occurring in the United States. In particular, according to the complaint, defendants received in the United States funds known to them to have been gener- ated by illegal narcotics trafficking and terrorist activity, conduct violative of traveled using the facili- ties of interstate commerce in furtherance of unlawful activity, in violation of provided material support to foreign terrorist organizations “in the United States and elsewhere,” in violation of ; and used U. S. mails and wires in furtherance of a “scheme or artifice to de- fraud,” in violation of and 1343. App. to Pet. for Cert. 238a–250a. In short, this case has the United States written all over it. B The Court nevertheless deems a domestic-injury re- quirement for private RICO plaintiffs necessary to avoid international friction. See ante, at 20–22. When the United States considers whether to initiate a prosecution or civil suit, the Court observes, it will take foreign-policy considerations into account, but private parties will It is far from clear, however, that the Court’s blanket rule would ordinarily work to ward off international discord. Invoking the presumption against extraterritoriality as a bar to any private suit for injuries to business or property abroad, this case suggests, might spark, rather than quell, international strife. Making such litigation available to domestic but not foreign plaintiffs is hardly solicitous of international comity or respectful of foreign interests. Cf. –319 (“[A] foreign nation is gener- ally entitled to prosecute any civil claim in the courts of the United States upon the same basis as a domestic corporation or individual might do. To deny him this privilege would manifest a want of comity and friendly feeling.” (internal quotation marks omitted)). RICO’s definitional provisions exclude “[e]ntirely foreign 8 RJR NABISCO, (Lynch, J., dissenting from denial of rehearing en banc). Thus no suit under RICO would lie for injuries resulting from “[a] pattern of mur- ders of Italian citizens committed by members of an Ital- ian organized crime group in Italy.” That is so because “murder is a RICO predicate only when it is ‘chargeable under state law’ or indictable under specific federal statutes.” (citing (G)). To the extent extraterritorial application of RICO could give rise to comity concerns not present in this case, those concerns can be met through doctrines that serve to block litigation in U. S. courts of cases more appropriately brought elsewhere. Where an alternative, more appropri- ate forum is available, the doctrine of forum non conven- iens enables U. S. courts to refuse jurisdiction. See Piper Aircraft (dismissing wrongful-death action arising out of air crash in Scotland involving only Scottish victims); Restatement (Second) of Conflict of Laws (1969). Due process constraints on the exercise of general personal jurisdiction shelter foreign corporations from suit in the United States based on conduct abroad unless the corporation’s “affiliations with the [forum] in which suit is brought are so constant and pervasive ‘as to render it essentially at home [there].’ ” Daimler AG v. Bauman, 571 U. S. – (slip op., at 2–3) ; alterations omitted). These controls provide a check against civil RICO litigation with little or no connection to the United States. * * * The Court hems in RICO out of concern about establish- ing a “double standard.” Ante, at 22. But today’s decision does exactly that. U. S. defendants commercially engaged here and abroad would be answerable civilly to U. S. Cite as: 579 U. S. (2016) 9 Opinion of GINSBURG, J. victims of their criminal activities, but foreign parties similarly injured would have no RICO remedy. “ ‘Sauce for the goose’ ” should indeed serve the gander as well. See (quoting Heffernan v. City of Paterson, 578 U. S. (2016) (slip op., at 6)). I would resist reading into a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment: “To establish a compensable injury under a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F.3d, at (quoting 473 U.S., at ; U.S., at 268)). Because the Court overturns that judgment, I dissent. Cite as: 579 U. S. (2016) 1 Opinion of BREYER, J. SUPREME COURT OF THE UNITED STATES No. 15–138 RJR NABISCO, INC., ET AL., PETITIONERS v. EUROPEAN COMMUNITY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 20, 2016] JUSTICE BREYER, concurring in part, dissenting in part, and dissenting from the judgment. I join Parts I through III of the Court’s opinion. But I do not join Part IV. The Court there holds that the private right of action provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. has no extraterritorial application. Like JUSTICE GINSBURG, I believe that it does. In saying this, I note that this case does not involve the kind of purely foreign facts that create what we have sometimes called “foreign-cubed” litigation (i.e., cases where the plaintiffs are foreign, the defendants are for- eign, and all the relevant conduct occurred abroad). See, e.g., v. National Australia Bank Ltd., 561 U.S. 247, 283, n. 11 (Stevens, J., concurring in judg- ment). Rather, it has been argued that the statute at issue does not extend to such a case. See 18 U.S. C. (1) (limiting qualifying RICO predicates to those that are, e.g., “chargeable” under state law, or “indictable” or “punishable” under federal law); Tr. of Oral Arg. 32, 33– 34 (respondents conceding that all of the relevant RICO predicates require some kind of connection to the United States). And, as JUSTICE GINSBURG points out, “this case has the United States written all over it.” Ante, at 7 (opin- ion concurring in part, dissenting in part, and dissenting 2 RJR NABISCO, INC. v. EUROPEAN COMMUNITY Opinion of BREYER, J. from judgment). Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action presents the danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view. Consequently, I join JUSTICE GINSBURG’s opinion

Justice Stevens

majority

US Ind./Fed. Sheet Metal, Inc. v. Director, OWCP

https://www.courtlistener.com/opinion/110669/us-indfed-sheet-metal-inc-v-director-owcp/

https://www.courtlistener.com/api/rest/v3/clusters/110669/

1981-062

In the early morning of November 20, 1975, respondent Ralph Riley awoke with severe pains in his neck, shoulders, and arms, which later were attributed by physicians to an exacerbation of an arthritic condition. The United States Court of Appeals for the District of Columbia Circuit held that this "injury" was sufficient to invoke the "statutory presumption of compensability,"[1] § 20(a) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1436, 33 U.S. C. § 920(a), and vacated the administrative denial of disability benefits. We granted certiorari, 450 U.S. 979, and we now reverse. *610 Contending that he was permanently and totally disabled by the arthritic condition,[2] Riley's retained counsel filed with the Deputy Commissioner a claim for compensation under the Act. See 33 U.S. C. § 913. On standard form LS-203, in response to the direction to "[d]escribe in full how the accident occurred,"[3] Riley wrote that on November 19, 1975, he was "[l]ifting duct work with co-worker, weighing approximately 500 pounds, felt sharp pain in neck and sat down." App. 111. An evidentiary hearing was convened before an Administrative Law Judge. After construing the evidence in a light most favorable to Riley and resolving all doubts in his favor, the Administrative Law Judge found "that Claimant sustained no injury within the meaning of Sec. 2(2) of the Act on November 19, 1975, as alleged, and that Claimant and Sutherland [Riley's co-worker] gave false testimony as to the happening of the accident." App. to Pet. for Cert. 24A. A divided panel of the Benefits Review Board affirmed the denial of disability benefits, holding that the Administrative Law Judge's findings were supported by substantial evidence. In dissent, Member Miller stated: "The Act does not require that claimant prove an accident in order to establish a claim. To the contrary, compensation is payable under the Act if claimant is disabled because of injury which is causally related to his employment. 33 U.S. C. §§ 902(10), 902(2)." 9 BRBS 936, 940 (1979) (emphasis in original). *611 Member Miller defined an injury as "something go[ne] wrong within the human frame." Ibid. Riley suffered such an injury when he awoke on November 20 with severe pain. Therefore, Member Miller would have remanded the case for a determination of "the real issue in this case," which "is not whether claimant sustained an accident at work but whether claimant's injury is causally related to his employment." Ibid. That determination was to be made in light of the § 20(a) presumption, which "places the burden on employer to prove by substantial evidence that claimant's injury did not arise out of or in the course of employment." Ibid. On Riley's petition for review, the Court of Appeals vacated the decision of the Benefits Review Board, agreeing with Member Miller's position. Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U. S. App. D. C. 402, 627 F.2d 455 (1980). The court stated that "it can hardly be disputed that petitioner suffered an `injury' when he awakened in pain on November 20, 1975." Id., at 405, 627 F.2d, at 458. The court then turned its "attention to the statutory presumption and the range of situations to which this Court has applied it." Ibid. It construed its earlier cases as holding "that an injury need not have occurred during working hours" and "need not be traceable to any particular work-related incident to be compensable." Id., at 405-406, 627 F.2d, at 458-459.[4] "The foregoing cases make clear the pervasive scope of the statutory presumption of compensability. Indeed, no decision of this Court has ever failed to apply the presumption *612 to any facet of any claim before it. We now hold expressly that where a claimant has been injured, the Act requires that, in the absence of substantial evidence to the contrary, a claimant be given the benefit of a rebuttable presumption that the injury arose out of and in the course of the claimant's employment." Id., at 406, 627 F.2d, at 459. The question for remand was not whether Riley's "injury" stemmed from a "work-related incident," but whether it was " `employment-bred.' " Ibid. The Court of Appeals erred because it overlooked (1) the statutory language that relates the § 20(a) presumption to the employee's claim, and (2) the statutory definition of the term "injury." I The Court of Appeals' first error was its invocation of the § 20(a) presumption in support of a claim that was not made by Riley. Riley claimed that he suffered an injury at work on November 19 when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found as a matter of fact that the accident had not occurred; this finding is no longer challenged. The Court of Appeals' theory of recovery was that Riley suffered an injury at home in bed on November 20 and that Riley was entitled to a presumption that this injury was "employment-bred." Section 20(a), 44 Stat. (part 2) 1436, provides that "[i]n any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this Act." The coverage of the presumption is debatable,[5] but one thing is clear: the presumption *613 applies to the claim. Even if a claimant has an unfettered right to amend his claim to conform to the proof, the presumption by its terms cannot apply to a claim that has never been made. Section 13 of the Act, 33 U.S. C. § 913, provides that a claimant must timely file a claim with the Deputy Commissioner. The content of the claim is not specified in that section. But § 12(b), 33 U.S. C. § 912(b), requires that the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further that "[s]uch notice . . . shall contain . . . a statement of the time, place, nature, and cause of the injury."[6] The claim, like the notice required by § 12 and like the pleadings required in any type of litigation, serves the purposes of notifying the adverse party of the allegations and of confining the issues to be tried and adjudicated.[7] *614 In Riley's claim, he alleged that he suffered an accidental injury in the course of his employment on November 19. No claim has ever been made that the "injury" occurred at home and that it was somehow "employment-bred." Even if such a vague claim stated a prima facie case of compensability, the statutory presumption does not require the administrative law judge to address and the employer to rebut every conceivable theory of recovery. At least when the claimant is represented by counsel,[8] as Riley was, there is no reason to depart from the specific statutory direction that a claim be *615 made and that the presumption, however construed, attach to the claim. II The Court of Appeals' second error was its incorrect use of the term "injury." The court stated that Riley's attack of pain in the early morning of November 20 was an "injury" compensable under the Act if the employer did not disprove by substantial evidence that the "injury" was "employment-bred." The fact that " `something unexpectedly goes wrong with the human frame,' " 200 U. S. App. D. C., at 405, 627 F.2d, at 458 (quoting Wheatley v. Adler, 132 U. S. App. D. C. 177, 183, 407 F.2d 307, 313 (1968)), however, does not establish an "injury" within the meaning of the Act. The mere existence of a physical impairment is plainly insufficient to shift the burden of proof to the employer. Section 3(a) provides that "[c]ompensation shall be payable under this Act in respect of disability . . . of an employee, but only if the disability . . . results from an injury." 44 Stat. (part 2) 1426, as amended, 33 U.S. C. § 903(a). Injury is defined as an "accidental injury . . . arising out of and in the course of employment." 33 U.S. C. § 902(2). Arising "out of" and "in the course of" employment are separate elements: the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury.[9] Not only must the injury have been caused by the employment, it also must have arisen during the employment. A prima facie "claim for compensation," to which the statutory presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment.[10] The "injury" noticed by the Court of Appeals, however, *616 arose in bed, not in the course of employment. Even if the Court of Appeals simply mislabeled the early morning attack of pain as the "injury" itself rather than as a manifestation of an earlier injury, the claim envisioned by the Court of Appeals did not allege any facts that would establish that Riley suffered an injury that arose in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case. III Riley's claim stated a prima facie case of compensability; if the Administrative Law Judge had believed Riley's allegations, he would have found that Riley's attack of pain in the early morning of November 20 was caused by an injury suffered when Riley was lifting duct work on the job on November 19. The judge, however, disbelieved Riley's allegations and marshaled substantial evidence to support his findings. The statutory presumption did not require him to adjudicate any claim that was not made, and the Court of Appeals erred in remanding for that purpose. Nor could the statutory presumption have aided Riley had he made the claim envisioned by the Court of Appeals — that he suffered an "injury" at home — for such a claim omits the requirement that a compensable injury arise in the course of employment. The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE O'CONNOR took no part in the consideration or decision of this case.

In the early morning of November 20, 1975, respondent Ralph Riley awoke with severe pains in his neck, shoulders, and arms, which ler were tributed by physicians to an exacerbion of an arthritic condition. The United Stes Court of Appeals for the District of Columbia Circuit held th this "injury" was sufficient to invoke the "stutory presumption of compensability,"[1] 20(a) of the Longshoremen's and Harbor Workers' Compension Act, 44 St. (part 2) 1436, 33 U.S. C. 920(a), and vaced the administrive denial of disability benefits. We granted certiorari, and we now reverse. *610 Contending th he was permanently and totally disabled by the arthritic condition,[2] Riley's retained counsel filed with the Deputy Commissioner a claim for compension under the Act. See 33 U.S. C. 913. On standard form LS-203, in response to the direction to "[d]escribe in full how the accident occurred,"[3] Riley wrote th on November 19, 1975, he was "[l]ifting duct work with co-worker, weighing approximely 500 pounds, felt sharp pain in neck and s down." App. 111. An evidentiary hearing was convened before an Administrive Law Judge. After construing the evidence in a light most favorable to Riley and resolving all doubts in his favor, the Administrive Law Judge found "th Claimant sustained no injury within the meaning of Sec. 2(2) of the Act on November 19, 1975, as alleged, and th Claimant and Sutherland [Riley's co-worker] gave false testimony as to the happening of the accident." App. to Pet. for Cert. 24A. A divided panel of the Benefits Review Board affirmed the denial of disability benefits, holding th the Administrive Law Judge's findings were supported by substantial evidence. In dissent, Member Miller sted: "The Act does not require th claimant prove an accident in order to establish a claim. To the contrary, compension is payable under the Act if claimant is disabled because of injury which is causally reled to his employment. 33 U.S. C. 902(10), 902(2)." 9 BRBS 936, 940 (1979) (emphasis in original). *611 Member Miller defined an injury as "something go[ne] wrong within the human frame." Riley suffered such an injury when he awoke on November 20 with severe pain. Therefore, Member Miller would have remanded the case for a determinion of "the real issue in this case," which "is not whether claimant sustained an accident work but whether claimant's injury is causally reled to his employment." Th determinion was to be made in light of the 20(a) presumption, which "places the burden on employer to prove by substantial evidence th claimant's injury did not arise out of or in the course of employment." On Riley's petition for review, the Court of Appeals vaced the decision of the Benefits Review Board, agreeing with Member Miller's position. Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U. S. App. D. C. 402, The court sted th "it can hardly be disputed th petitioner suffered an `injury' when he awakened in pain on November 20, 1975." The court then turned its "tention to the stutory presumption and the range of situions to which this Court has applied it." It construed its earlier cases as holding "th an injury need not have occurred during working hours" and "need not be traceable to any particular work-reled incident to be compensable." -, -459.[4] "The foregoing cases make clear the pervasive scope of the stutory presumption of compensability. Indeed, no decision of this Court has ever failed to apply the presumption *612 to any facet of any claim before it. We now hold expressly th where a claimant has been injured, the Act requires th, in the absence of substantial evidence to the contrary, a claimant be given the benefit of a rebuttable presumption th the injury arose out of and in the course of the claimant's employment." The question for remand was not whether Riley's "injury" stemmed from a "work-reled incident," but whether it was " `employment-bred.' " The Court of Appeals erred because it overlooked (1) the stutory language th reles the 20(a) presumption to the employee's claim, and (2) the stutory definition of the term "injury." I The Court of Appeals' first error was its invocion of the 20(a) presumption in support of a claim th was not made by Riley. Riley claimed th he suffered an injury work on November 19 when he was lifting duct work and felt a sharp pain in his neck. The Administrive Law Judge found as a mter of fact th the accident had not occurred; this finding is no longer challenged. The Court of Appeals' theory of recovery was th Riley suffered an injury home in bed on November 20 and th Riley was entitled to a presumption th this injury was "employment-bred." Section 20(a), 44 St. (part 2) 1436, provides th "[i]n any proceeding for the enforcement of a claim for compension under this Act it shall be presumed, in the absence of substantial evidence to the contrary [t]h the claim comes within the provisions of this Act." The coverage of the presumption is debable,[5] but one thing is clear: the presumption *613 applies to the claim. Even if a claimant has an unfettered right to amend his claim to conform to the proof, the presumption by its terms cannot apply to a claim th has never been made. Section 13 of the Act, 33 U.S. C. 913, provides th a claimant must timely file a claim with the Deputy Commissioner. The content of the claim is not specified in th section. But 12(b), 33 U.S. C. 912(b), requires th the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further th "[s]uch notice shall contain a stement of the time, place, nure, and cause of the injury."[6] The claim, like the notice required by 12 and like the pleadings required in any type of litigion, serves the purposes of notifying the adverse party of the allegions and of confining the issues to be tried and adjudiced.[7] *614 In Riley's claim, he alleged th he suffered an accidental injury in the course of his employment on November 19. No claim has ever been made th the "injury" occurred home and th it was somehow "employment-bred." Even if such a vague claim sted a prima facie case of compensability, the stutory presumption does not require the administrive law judge to address and the employer to rebut every conceivable theory of recovery. At least when the claimant is represented by counsel,[8] as Riley was, there is no reason to depart from the specific stutory direction th a claim be *615 made and th the presumption, however construed, tach to the claim. II The Court of Appeals' second error was its incorrect use of the term "injury." The court sted th Riley's tack of pain in the early morning of November 20 was an "injury" compensable under the Act if the employer did not disprove by substantial evidence th the "injury" was "employment-bred." The fact th " `something unexpectedly goes wrong with the human frame,' " 200 U. S. App. D. C., ), however, does not establish an "injury" within the meaning of the Act. The mere existence of a physical impairment is plainly insufficient to shift the burden of proof to the employer. Section 3(a) provides th "[c]ompension shall be payable under this Act in respect of disability of an employee, but only if the disability results from an injury." 44 St. (part 2) 1426, as amended, 33 U.S. C. 903(a). Injury is defined as an "accidental injury arising out of and in the course of employment." 33 U.S. C. 902(2). Arising "out of" and "in the course of" employment are separe elements: the former refers to injury causion; the lter refers to the time, place, and circumstances of the injury.[9] Not only must the injury have been caused by the employment, it also must have arisen during the employment. A prima facie "claim for compension," to which the stutory presumption refers, must least allege an injury th arose in the course of employment as well as out of employment.[10] The "injury" noticed by the Court of Appeals, however, *616 arose in bed, not in the course of employment. Even if the Court of Appeals simply mislabeled the early morning tack of pain as the "injury" itself rher than as a manifestion of an earlier injury, the claim envisioned by the Court of Appeals did not allege any facts th would establish th Riley suffered an injury th arose in the course of employment. The stutory presumption is no substitute for the allegions necessary to ste a prima facie case. III Riley's claim sted a prima facie case of compensability; if the Administrive Law Judge had believed Riley's allegions, he would have found th Riley's tack of pain in the early morning of November 20 was caused by an injury suffered when Riley was lifting duct work on the job on November 19. The judge, however, disbelieved Riley's allegions and marshaled substantial evidence to support his findings. The stutory presumption did not require him to adjudice any claim th was not made, and the Court of Appeals erred in remanding for th purpose. Nor could the stutory presumption have aided Riley had he made the claim envisioned by the Court of Appeals — th he suffered an "injury" home — for such a claim omits the requirement th a compensable injury arise in the course of employment. The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE O'CONNOR took no part in the considerion or decision of this case.